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Testimony of Deputy Secretary of Labor Christopher P. Lu Before the Subcommittee on Employment and Workplace Safety,
Chairman Casey, Ranking Member Isakson, and distinguished Members of the Subcommittee, thank you for inviting me to testify about the Department's administration of the Black Lung Benefits Act. The Department is committed to the Nation's coal miners and their families, and to ensuring fairness in the claims process.
You have asked us to address the steps the Department has taken in response to the October, 2013
Recognizing that coal miners were sacrificing both their health and economic futures to produce the coal necessary to meet the Nation's energy needs, and that State workers' compensation programs were inadequate for them,
Generally, a miner must establish that he or she has a lung disease arising from coal mine employment, a totally disabling respiratory impairment, and that the lung disease contributed to the impairment. A survivor who cannot benefit from the Byrd automatic entitlement provisions must establish that the miner had a lung disease arising from coal mine employment, and that the lung disease hastened the miner's death. Any claimant, miner, or survivor, must prove his or her case by a preponderance of the evidence.
In making his case, a claimant may be able to take advantage of two important statutory presumptions. First, if the claimant proves the miner has or had complicated black lung disease -- an advanced form of the disease also known as progressive massive fibrosis -- the claimant can invoke a presumption of entitlement that the liable party is not permitted to rebut. Second, if the miner engaged in underground coal mine employment, or substantially similar above-ground coal mine employment, for at least 15 years and the claimant proves that the miner has or had a totally disabling respiratory impairment, the claimant can invoke a presumption that the miner has or had black lung disease and that the miner's disability or death was due to the disease. The liable party may rebut2 this presumption only by showing the absence of black lung disease and that no part of the miner's disability or death was related to coal mine employment.3
The Act originally divided responsibility for the program between the
The CPI/ABC News Reports
The Department's Response
The Department took these reports seriously. We conducted an extensive review of the program to look for innovative ways to address the disparity in resources between coal companies and benefits claimants within the existing statutory and regulatory framework. The Department also looked for other changes that could be made to improve the fairness of the claims process and increase the accuracy of decisions made on claims.
I would like to share with you some of the actions the Department has taken as a result of this review.
1. Pilot program to develop supplemental medical evidence
But these initial medical reports do not always hold their value as a claim moves through the adjudication process. They are often rejected because they are outdated or do not consider all of the medical data added later to the record by miners and coal companies. The Department launched the pilot program to help alleviate these problems. In a small subset of claims -- generally those where the miner worked 15 or more years in the mines (and thus might be able to invoke the 15-year statutory presumption of entitlement) and whose initial medical report supports an award of benefits -- the Department is developing additional medical evidence. We ask the doctor who conducted the initial examination to review any evidence submitted by the miner or the coal company and update his or her initial opinion by drafting a supplemental report. Depending on the particular circumstances of any given case, we may ask for supplemental reports during both the OWCP and administrative law judge adjudication phases.
The Department chose this approach in response to the
The pilot project is still in its early stages. 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. We have also requested supplemental opinions in several cases set for hearing before an administrative law judge, but these cases have not yet been decided.
The Department hopes the pilot project gives deserving miners stronger medical reports that strengthen OWCP's initial entitlement decisions and that withstand scrutiny when weighed against the coal companies' contrary evidence. Stronger OWCP decisions may lead to fewer hearing requests in the future. 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.
2. New regulatory initiative
In addition to the pilot project, the Department announced a new black lung rulemaking initiative on
The first of these issues -- the medical-evidence disclosure rule -- is the most relevant here. We want to ensure that coal miners have full access to information about their health. We also want to render accurate decisions in adjudicating claims. Having access to medical evidence developed by all parties can help us accomplish both of these goals.
The Department invited stakeholders to comment on all three rulemaking topics during outreach sessions held earlier this month on
3. X-ray interpretations made by Dr. Wheeler
The Department also responded quickly to the allegations made in the
The Department made the judgment that the
In addition to issuing this guidance, OWCP searched its records to identify denied claims that contained X-ray interpretations made by Dr. Wheeler. The search included claims filed from 2001 to the present. OWCP broke these claims into two groups: those denied within the past year that could be reopened under the Act's one-year modification provision, and those denied more than one year ago.
OWCP identified 83 claims that had been denied within the past year and sent a letter to those claimants alerting them to OWCP's new guidance on Dr. Wheeler's X-ray readings. The letter informed the claimants that they could request reopening of their claims, included the date by which they had to make the request, and told them that the request could be made either by telephoning or writing OWCP. In four instances, the one-year modification deadline was quickly approaching, so OWCP telephoned the claimants in addition to sending the letter. To date, 13 claimants have sought modification in response to OWCP's letter.
OWCP also identified approximately 1,000 claims filed by miners between 2001 and 2013 that contained Dr.
Unfortunately, most survivors (unlike miners) whose claims were denied more than one year ago have no avenue of relief. These survivors cannot ask for modification because the one-year period has expired. And under the current statutory and regulatory scheme, such survivors cannot be found entitled to benefits based on a new claim.
I can assure you that if a claimant files a timely modification request or a miner files a new claim, OWCP intends to follow its stated policy and not credit Dr. Wheeler's X-ray interpretations without persuasive evidence either challenging the
In addition, to address any similar issues that may arise going forward, the Department has begun exploring with the
4. Training initiatives
The Department has also launched a new training initiative to further improve the quality of its decisions in black lung claims. We have worked closely with NIOSH to develop advanced training for Department personnel who adjudicate claims and physicians who examine miners on behalf of the Department. The program will keep staff up-to-date on medical developments relevant to black lung claims. A potential curriculum for the program was reviewed and evaluated by a broad range of participants -- including physicians and other medical providers, coal miners, claimant representatives and attorneys, OWCP staff, and Solicitor's Office staff -- at the
OWCP is committed to ongoing training, and, in addition to entering into the contract noted above, recently added a training coordinator to its National Office black lung staff.
5. Communications and Outreach
OWCP has used a variety of forums to communicate the steps that it is taking to improve the program. OWCP leaders have discussed the pilot project, the agency's expanded consultations with NIOSH, and the new training program at several conferences attended by miners and their representatives, doctors, and other medical providers who are involved with the program. OWCP has also placed on its website information about the pilot project, OWCP's guidance on Dr. Wheeler's X-ray readings, and a set of Questions and Answers about the rights of claimants whose claims were potentially impacted by Dr. Wheeler's readings. OWCP also shared the Questions and Answers with interested congressional offices and OWCP's District Offices.
6. Looking forward
In addition to the actions already taken, the Department is planning for the future. We have committed to consult regularly with NIOSH on recurring medical issues raised in claims litigation. If science resolves a particular issue, the Department will consider promulgating a rule to address it. Promulgating rules where the science is clear can lead to less litigation and help resolve miners' and survivors' claims more quickly. Both OWCP staff and the Solicitor's Office attorneys who litigate black lung cases are on the lookout for recurring medical and scientific issues so that we can consult with NIOSH in a timely manner.
We will also be enhancing our accountability review process within OWCP. OWCP's National Office staff performs onsite reviews of its District Offices and assesses their performance on critical program activities such as initial claim adjudications, administering benefit payments, and performing related activities associated with financial management and program administration. Each District Office is reviewed based on a sample of approximately 450 case files and other documents reflecting the work of the particular office.
We are considering adding spot audits that would require District Directors to review a sample of awards and denials after lower management reviews have been completed but before the award or denial is issued. The spot audits will be used as a quality enhancement tool and address whether the decision is appropriate, well-reasoned and in compliance with applicable statutes, regulations and policies.
Cases Pending Before the
As the Committee has recognized, there is a backlog in black lung claims awaiting hearing and decision by the
OALJ is also tackling the black lung case backlog in other ways. Some actions are directly related to adjudicating black lung cases while others are designed to free administrative law judges in other areas so that they have more time to devote to black lung cases. These actions include:
Hiring two new administrative law judges for OALJ's
Hiring a Senior Attorney in each OALJ District Office, instead of relying solely on law clerks who serve two-year terms. A Senior Attorney would develop greater expertise in black lung law and thus be better able to assist administrative law judges faced with difficult issues. Given the funding issues involved, OALJ is launching this as a pilot program only.
Exploring the use of contract attorneys, who are usually former law clerks, to draft black lung decisions on a fixed cost per case. In the past, this has proved a cost-effective method of reducing decision backlogs.
Routinely advising represented parties in black lung cases that a decision may be made on the documentary record, without an oral hearing, if all parties agree. Where the parties do agree, OALJ will be able to proceed more quickly to a final disposition of the claim.
Monitoring the productivity of all administrative law judges with regard to the disposition of black lung cases, and counseling judges who are less productive.
Using rehired annuitants to form additional
Continuing to explore using electronic systems for hearings. This could reduce travel costs and conserve valuable administrative law judge time that could be devoted to decision making.
Developing 10-15 training modules in conjunction with NIOSH to help administrative law judges and staff better understand the medical issues typically presented in black lung claims. This training could speed up the disposition of these claims.
You have also asked whether the Department's actions taken in response to the
Coal miners who have sacrificed their health because of their occupation deserve a fair process when they file claims for black lung benefits. The actions the Department has taken will further that goal. We look forward to continuing to work with you to improve the program and the lives of coal miners and their families.
1Pub. L. No. 111-148, section 1556(c), 124
230 U.S.C. section 921(c)(3).
330 U.S.C. section 921(c)(4) (2006 & Supp. V 2011).
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