Department of Labor to Propose Rule Regarding Disclosure of Medical Evidence

Major news from the Department of Labor:  In its Spring 2014 Semiannual Regulatory Agenda, the agency announced that it will be proposing a rule regarding the disclosure of medical evidence.

The issues regarding the disclosure of medical evidence most notably came up in the case of Fox v. Elk Run Coal Co. in which Elk Run Coal withheld evidence of Gary Fox’s complicated coal workers’ pneumoconiosis—a lung condition which eventually caused his death.  (Gary Fox’s tragic story received detailed coverage in Chris Hamby’s Pulitzer Award-winning Breathless and Burdened series, and the Fourth Circuit’s decision in Fox v. Elk Run was covered on a previous post on this blog by Steve Sanders).

Although the Department of Labor did not expressly announce whether the rule would result in more or less disclosure, the announcement signals that a rule will likely require more disclosure.  The announcement states: “To ensure that coal miners have full access to information about their health and to enhance the accuracy of entitlement determinations, this rule would address disclosure of medical evidence.”  The emphasis on information about coal miners’ health and accurate determinations suggests that the rule will result in more disclosure, which is generally better for coal miners and their families.

In an email sent to black lung stakeholders, the Deputy Director of the Department of Labor’s Division of Coal Mine Workers’ Compensation described the announcement as follows:

Congress passed the Black Lung Benefits Act in 1969 to provide compensation and medical benefits to coal miners disabled by black lung disease and compensation to certain family members after the miner’s death.  The Labor Department’s Office of Workers’ Compensation Programs administers the program.  It works hard to promptly process claims for benefits and make sure that miners and survivors receive the benefits to which they are entitled.

The Department of Labor’s Spring 2014 Semi-Annual Regulatory Agenda, published today, includes a new initiative for the Black Lung Benefits Act program.  We are informing you of this rulemaking because you have previously expressed interest in the program.

The new rulemaking will address a variety of issues, including whether the parties must disclose medical evidence they develop in connection with a claim for benefits.  This question arose in recent litigation. In Fox v. Elk Run Coal Co., the coal mine operator’s attorney did not share medical evidence that was indicative of complicated pneumoconiosis (an advanced form of black lung disease) with either the coal miner or the operator’s other medical experts who ultimately testified that the miner did not have pneumoconiosis.  The operator’s evidence resulted in denial of the claim.  The Department will examine whether the regulations governing medical evidence should be revised to ensure that miners have full access to information about their health and that accurate benefit determinations are made.  

Please direct any questions you may have to Michael Chance, the Director of the Division of Coal Mine Workers’ Compensation Programs, OWCP.

Other issues in the black lung benefits system that the Department of Labor said it will address include:

  • The maximum rate that medical providers can charge for medical treatment and services
  • A liable party’s responsibility to pay benefits under an effective award while pursuing modification

This announcement is good news for coal miners, their families, and their advocates and suggests strongly that the proposed rule from the Department of Labor’s Office of Administrative Law Judges (discussed in a previous post) will not be finalized in a way that will protect attorneys from coal companies who wish to withhold medical evidence.

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