Significant news in the world of federal black lung benefits: the Department of Labor has proposed changes to the procedural rules governing black lung benefits claims. The Notice of Proposed Rulemaking is available here and is embedded below.
The proposed rule—titled “Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits”—would make one major change and a few minor changes.
The major change would require full disclosure of medical evidence. As the Notice says:
The Department proposes a new provision that requires the parties to disclose all medical information developed in connection with a claim. Currently, parties to a claim are free to develop medical information to the extent their resources allow and then select from that information those pieces they wish to submit into evidence, subject to the evidentiary limitations set out in § 725.414. See 20 CFR 725.414. Medical information developed but not submitted into evidence generally remains in the sole custody of the party who developed it unless an opposing party obtains the information through a formal discovery process.
Experience has demonstrated that miners may be harmed if they do not have access to all information about their health, including information that is not submitted for the record. Claimants who do not have legal representation are particularly disadvantaged because generally they are unfamiliar with the formal discovery process and thus rarely obtain undisclosed information. Moreover, benefit decisions based on incomplete medical information are less accurate. These results are contrary to the clear intent of the statute.
The Department of Labor used the tragic case of Gary Fox (see previous post here for information related to Mr. Fox’s case) to demonstrate the problem and also cited to the West Virginia disciplinary decision in Doug Smoot’s case (Lawyer Disciplinary Board v. Smoot, 716 S.E.2d 481 (W. Va. 2010), and two Benefits Review Board decisions relating to the compelled disclosure of medical evidence. (Belcher v. Westmoreland Coal Co., BRB No. 06-0653 (BRB May 31, 2007) and Cline v. Westmoreland Coal Co., BRB No. 96-0603 (BRB Oct. 17, 1997))
Although the Department of Labor says that the regulation “casts a broad net” in defining “medical information,” the definition does not include treatment records, which should lessen the administrative burden for both sides.
Importantly, the duty to disclose applies not only to parties, but also “a party’s agent.” “Thus, a party may not avoid disclosure by having medical opinions and testing results filtered through a third-party agent.“
Failure to comply with the disclosure rules can result in a variety of sanctions including disqualification of an attorney from further participation in the claims proceeding or to relieve a claimant from the impact of a prior claim denial. This latter remedy is significant because it affects the finality of a previous order and can result in significant back benefits for a miner. (The finality of a previous denial was the issue that was ultimately litigated in Gary Fox’s claim and decided against his widow.)
The new rule applies to all claims in which an ALJ has not entered a decision on the merits as of the effective date of the rule.
The more minor changes are:
- A clarification that an operator’s request for modification of an award of benefits does not make the award ineffective. The rule also adds an explicit requirement than an operator pay all benefits due under the award as well as attorneys’ fees and cost before filing a modification request.
- A clarification that when a physician provides a supplemental report these “reports are merely a continuation of the physician’s original medical report for purposes of the evidence limiting rules and do not count against the party as a second medical report.”
- A change that would allow the District, OWCP to submit evidence up to the limits allowed for a responsible operator in cases in which an identified responsible operator has ceased to defend the claim during the course of litigation. This change is meant to address situation in which the responsible operator is still the liable party, but the Director as trustee of the Black Lung Disability Trust Fund predicts that the operator will fail to pay benefits owed due to bankruptcy or insolvency.
For the Department of Labor’s press release regarding the proposed rule, see here.
These proposed rules are now open to comment for the next 60 days, ending on June 29, 2015. Comments can be submitted via regulations.gov, via fax ((202) 693-1395), or via mail to Division of Coal Mine Workers’ Compensation Programs, Office of Workers’ Compensation Programs, U.S. Department of Labor, Room C-3520, 200 Constitution Avenue NW., Washington, DC 20210.