The past week saw a lot of news coverage of black lung issues following the Senate hearing on Tuesday July 22nd (see previous post). In attendance at the hearing were Senators Casey (PA), Harkin (IA), and Isakson (GA). Senators Rockefeller and Manchin (both of WV) issued statements that were made part of the record.
Other coverage included pieces by Chris Hamby for BuzzFeed, Jeanette Torres for ABC News, Ken Ward, Jr. for the Charleston Gazette, Tracie Maureiello for the Pittsburgh Post-Gazette, Brian Bowling for the Pittsburgh Tribune-Review , and Marina Koren for the National Journal, and James Carroll for the Louisville Courier-Journal.
For those interested in the current state of black lung, the 80-minute hearing is well-worth watching in full and the witnesses statements provide a wealth of valuable information. (Both the statements and the video is available through the Subcommittee’s Website—the hearing begins just before minute 18.)
The major topics were the case backlog before the Office of Administrative Law Judges, the shortage of claimants’ attorneys, the need for a disclosure rule to force coal company attorneys to hand over medical evidence, and coal companies’ use of biased physicians. These are (unfortunately) familiar topics to those interested in black lung.
Some of the most powerful testimony came from coal miner Robert Bailey who testified about his personal path from working in the mines to being awarded black lung benefits, the struggles that his fellow miners have encountered, and his lung transplant paid for (even though is entitled to coverage related to his black lung). Attorney John Cline also provided a detailed account of how his client Gary Fox was wronged by the attorneys at Jackson Kelly and a forceful argument for how the system should be improved.
In the statements provided for the hearing, the Department of Labor and the National Institute for Occupational Safety and Health (NIOSH) released some interesting new information.
Pilot Initiatives to Provide Better Medical Evidence for (Some) Miners
The Department is implementing its pilot initiatives that it announced in February in which it is helping develop medical evidence (these initiatives are described in a previous post.) “OWCP has sent out 79 requests for supplemental reports in cases being adjudicated by District Directors and has received 42 in response. OWCP has issued 37 decisions: 25 awards, 11 denials, and 1 claimant withdrew his application for benefits.” Less information was provided about the Solicitor’s Office becoming more involved in cases before Administrative Law Judges, but Deputy Secretary Lu said that the Solicitor’s Office was involved in “several” cases. There was also a suggestion that the pilot initiative would be expanded: “While it is too soon to assess the pilot’s effectiveness, the Department will consider expanding this procedure to all claims
filed by miners if the pilot is judged successful.“
Outreach to Claimants Whose Claims Were Denied Following a Reading by Dr. Wheeler
As previously covered, as a part of the Department’s new policy of presuming Dr. Wheeler is not credible, the Department is reaching out to claimants whose claims were denied following a reading by Dr. Wheeler.
Deputy Secretary Lu said that the Department looked at claims filed from 2001 to present and found 83 that were denied within the past year—and thus are eligible for modification under 20 C.F.R. § 725.310—and “approximately 1,000” that were denied more than a year ago. Of the 83 who were eligible for modification, 13 claimants have sought modification. The Department expects 630-730 of the 1,000 who were previously denied to file new claims (330 in FY 2014 and 300-400 in FY 2015).
Backlog Before the Office of Administrative Law Judges
As Senator Casey pointed out (see minute 22:00 of the hearing), one of the current problems in the federal black lung system is the backlog before the Office of Administrative Law Judges. This backlog results in average delays of over 520 days from seeking a formal hearing until receiving a decision. (This process generally comes about year after a claim is filed, so in total it usually takes nearly three years from filing a claim to receive a decision from a judge.) As Senator Casey stated “Justice delayed as we often have said is justice denied. In this case for coal miners suffering from the debilitating effects of black lung disease. Our nation’s hard-working miners and their families deserve much better than that.”
In response, the Department is seeking a 11.5% increase in the OALJ’s funding via the President’s Budget, the largest increase the Department has sought in 10 years. This increase would fund 10 new full-time positions. The Department is seeking other staffing solutions and is finding ways to reduce ALJs’ travel burdens such as moving to electronic filing and trying to increase the number of cases decided without a hearing.
Deputy Secretary Lu said the Department expects FY 2014 to have 7,100 new claims, (not counting the 330 new claims filed in response to invitations resulting from the new policy regarding Dr. Wheeler). This is 10.6% higher than claims filings for FY 2013.
Response to Dr. Wheeler Investigation
-NIOSH is modifying the form that is used to report x-ray readings to clarify that a physician reading an x-ray should note any abnormalities, whether or not the physician believes they are caused by coal mine dust exposure
-NIOSH is working with the Deparment of Labor to create a quality assurance program for B-Readers to make sure they are providing accurate readings in cases before the Department. The program is expected to be implemented in FY 2015.
Although the prospects of legislative change look grim due to gridlock in Washington, this hearing was certainly successful in raising the profile of problems in the black lung benefits system and in prodding leaders in federal agencies to use their authority to address serious problems.