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entitled 'Black Lung Benefits Program: Administrative and Structural 
Changes Could Improve Miners' Ability to Pursue Claims' which was 
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Report to the Chairman, Subcommittee on Health Care, Committee on 
Finance, U.S. Senate: 

United States Government Accountability Office: 

GAO: 

October 2009: 

Black Lung Benefits Program: 

Administrative and Structural Changes Could Improve Miners' Ability to 
Pursue Claims: 

Black Lung Benefits Program: 

GAO-10-7: 

GAO Highlights: 

Highlights of [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-10-7], 
a report to the Chairman, Subcommittee on Health Care, Committee on 
Finance, U.S. Senate. 

Why GAO Did This Study: 

The Department of Labor (DOL) Black Lung Benefits Program provides 
medical and income assistance to coal miners who suffer total 
disability or death due to lung disease caused by coal dust. To provide 
insight into DOL’s administration of the Black Lung Benefits Program, 
GAO is reporting on (1) how long it takes to process and resolve black 
lung claims and appeals are denied by DOL; (2) at what rate and for 
what reasons black lung claims; and (3) what barriers, if any, confront 
miners or their survivors in pursuing their claims. GAO collected and 
analyzed black lung claims and appeals data and interviewed officials 
at relevant federal agencies, national organizations, and selected 
local organizations at two sites. 

What GAO Found: 

In fiscal year 2008, DOL issued decisions on claims in less than 1 year 
on average at each stage of adjudication, yet according to officials 
and experts, the appeals and remands (claims sent back to the prior 
stage of review for further consideration or development) that follow 
decisions can keep claims in the system for years. Although DOL does 
not track how long all claims remain in the claims and appeals process, 
we examined 763 miner claims filed between 2001 and 2008 that were 
ultimately awarded benefits by mine companies. We found that mine 
companies agreed to pay benefits for about 73 percent of these claims 
within 3 years from the date of the initial claim, roughly 24 percent 
of claims in 3 to 6 years, and the remaining 4 percent in 6 to 8 years. 
The program also contains financial incentives for both miners and 
mining companies to keep claims in the appeals process. For example, 
some miners may extend the appeals process to maintain their payment of 
interim benefits. Factors that add additional time to the appeals 
process also include allowing time for claimants to find legal 
representation and waiting until there are sufficient cases in rural 
areas before sending a judge to hold a hearing. 

In 2008, most claims (87 percent) were initially denied. Few claimants 
are able to prove they meet all of the program’s eligibility 
requirements, and for certain cases, required conditions are difficult 
to prove. For example, some miners—those with a history of smoking—
develop lung disease associated with long-term exposure to coal mine 
dust but which frequently cannot be detected by X-ray. Though current 
science does not allow a medical distinction between lung disease 
caused by smoking and by coal mine dust, regulations require that 
claimants establish that their lung disease is significantly related to 
or substantially aggravated by coal dust. In such cases, judges told us 
they rely heavily on nonclinical evidence, such as physician 
credentials, length of depositions, and level of sophistication of 
evidence presented by claimants and mine operators to determine 
claimant eligibility. According to some DOL administrative law judges, 
mining company doctors are usually better credentialed and produce 
lengthier and more sophisticated medical reports and evaluations. 

GAO found that coal miners face a number of challenges pursuing federal 
black lung claims, including finding legal representation and 
developing sound medical evidence to support their claims. DOL 
officials identified miners’ lack of resources, the low probability of 
success, and high litigation costs for their cases as factors that 
contribute to the difficulties miners face in finding legal 
representatives. Miners also encounter challenges in developing sound 
medical evidence. DOL administrative law judges said medical evidence 
prepared by DOL-approved doctors for claimants does not always provide 
sound or thorough evidentiary support for their claims. Further, 
various practices of medical testing, a key measure of black lung-
related disability, may contribute to inaccurate disability test 
readings. 

What GAO Recommends: 

GAO recommends that DOL implement several administrative changes, 
including creating a measure to improve the agency’s ability to track 
performance and improving the DOL form used to document claimant 
medical evaluations. GAO also recommends that DOL evaluate the 
potential for proposing, to Congress, several structural changes to the 
program, including strategies for increasing claimant representation 
and improving requirements for documenting evidence. DOL agreed with 
most of the recommendations and will begin to evaluate potential 
structural changes, but disagreed that DOL should track performance 
through the claims and appeals process. 

View [hyperlink, http://www.gao.gov/products/GAO-10-7] or key 
components. For more information, contact Andrew Sherrill at (202) 512-
7215 or sherrilla@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

DOL Issued Claims Decisions at Each Stage of the Process, on Average, 
in 1 Year or Less, but High Rates of Appeal and Remand, Among Other 
Factors, Delay Resolution of Many Claims: 

Most Claims Are Initially Denied, Most Often because Claimants Cannot 
Meet All Evidentiary Requirements: 

Coal Miners Face a Number of Challenges in Pursuing Federal Black Lung 
Benefits, Including Finding Legal Representation and Developing Sound 
Medical Evidence: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Comments from the Department of Labor: 

Appendix III: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Performance Data for Each Stage of Claims Processing and 
Adjudication in Fiscal Year 2008: 

Table 2: The Number of Black Lung Claims and Appeals Decisions Issued 
and the Percent That Resulted in Denial of Claimant Benefits in Fiscal 
Year 2008: 

Figures: 

Figure 1: Deaths Related to Black Lung Disease from 1968 to 2005: 

Figure 2: Overview of the Black Lung Claims Adjudication Process: 

Figure 3: Time to Resolve Claims Filed between 2001 and 2008 for Miners 
Awarded Benefits from Mine Companies: 

[End of section] 

United States Government Accountability Office: 

Washington, DC 20548: 

October 30, 2009: 

The Honorable John D. Rockefeller IV: 
Chairman: 
Subcommittee on Health Care: 
Committee on Finance: 
United States Senate: 

Dear Mr. Chairman: 

The Black Lung Benefits Program, created in 1969 by Congress,[Footnote 
1] provides medical treatment and monthly income assistance[Footnote 2] 
to miners who can prove that they are totally disabled--unable to 
perform usual coal mine work due to pulmonary impairment--resulting 
from lung disease caused by coal dust. Their surviving dependents may 
also apply for compensation. Serving more than 40,000 beneficiaries and 
paying more than $250 million in benefits in fiscal year 2008, the 
Black Lung Benefits Program remains a significant source of black lung 
compensation for the nation's coal miners. However, with average claim 
approval rates historically below 15 percent and with reports of some 
cases that take years to resolve, concerns have been raised about the 
extent to which federal black lung benefits are accessible to miners or 
to their survivors and dependents. 

The program is administered by the Division of Coal Mine Workers' 
Compensation in the Office of Workers' Compensation Programs (OWCP) 
within the Department of Labor (DOL). Claims are processed by nine OWCP 
district offices, and appeals are adjudicated by two DOL agencies: the 
Office of Administrative Law Judges (OALJ) and the Benefits Review 
Board (BRB). Claimants and mine operators may further appeal these 
agency decisions to the federal appellate courts. Awards are funded 
from two sources: mine operators who are identified as the responsible 
employers of claimants and, when responsible employers cannot be 
identified, the Black Lung Disability Trust Fund. The Trust Fund, which 
is administered by OWCP, is supported through an excise tax levied on 
all underground coal mine operators. 

To gain insight into the administration of the Black Lung Benefits 
Program, you asked that we determine (1) how long it takes to process 
and resolve black lung benefits and claims; (2) at what rate and for 
what reasons black lung claims and are denied by DOL; and (3) what 
barriers, if any, confront miners or their survivors in pursuing their 
claims. 

To answer these questions, we interviewed officials from the three DOL 
agencies responsible for claims processing and adjudication--OWCP, 
OALJ, and BRB. To learn how long it takes to process and resolve black 
lung benefit claims, we collected and analyzed case processing data 
from OWCP, OALJ, and BRB. To determine the rate and reasons that OWCP 
denied black lung claims, we collected and analyzed data from OWCP's 
case management system. To determine the rate that OALJ and BRB 
decisions resulted in the denial of black lung claims, we reviewed OALJ 
and BRB appeals cases decided in fiscal year 2008 and calculated the 
number of denials and the total number of cases and then computed a 
denial rate. To determine the reasons that OALJ and BRB have denied 
black lung claims, we selected and analyzed random samples of OALJ and 
BRB cases denied in fiscal year 2008 and projected the results onto the 
population. We assessed OWCP, OALJ, and BRB processing and denial data 
for reliability. On the basis of this assessment, we concluded that the 
data were sufficiently reliable for the purposes of our report. To 
describe the barriers that miners and survivors face, we interviewed 
Health Resources and Services Administration (HRSA) officials to get 
more information about the Black Lung Clinics program, a program that 
provides grants to public and private nonprofit organizations to 
provide specialized diagnosis, treatment, benefit counseling, and 
outreach services to miners suffering with black lung disease. We also 
interviewed officials from the National Institute for Occupational 
Safety and Health (NIOSH) to learn about the state of science related 
to identifying black lung disease and its cause. We also conducted site 
visits to West Virginia and Kentucky, black lung-affected regions. 
These two sites were selected because they are (1) located in a state 
with a high level of black lung mortality, (2) located in an OWCP 
district with a high volume of black lung claims filings, and (3) 
identified by black lung experts as demonstrative of factors that 
impede or facilitate claimants' pursuit of federal black lung claims 
and appeals. During the site visits, we conducted a small group 
interview with local black lung stakeholders at each site, toured black 
lung clinic facilities, and met with officials from OWCP district 
offices responsible for adjudicating a claimant's initial claim. In 
addition to our site visits, we also interviewed spokespeople at 
national organizations related to black lung, including the National 
Mining Association, an organization that represents the mining 
industry, as well as the United Mine Workers of America (UMWA), a union 
that represents coal miners. In addition, we reviewed relevant federal 
statutes, regulations, administrative cases, and court cases. We 
conducted this performance audit from October 2008 to October 2009 in 
accordance with generally accepted government auditing standards. Those 
standards require that we plan and perform the audit to obtain 
sufficient and appropriate evidence to provide a reasonable basis for 
our findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our findings 
and conclusions based on our audit objectives. For additional 
information on our scope and methodology, see appendix I. 

Background: 

According to NIOSH, coal workers' pneumoconiosis (CWP), also known as 
black lung disease,[Footnote 3] has been a contributor or underlying 
cause of death for more than 73,800 United States workers since 1968 
(see fig.1).[Footnote 4] Following the passage of the Federal Coal Mine 
Health and Safety Act of 1969, which established the first 
comprehensive respirable dust standards for coal mines, the prevalence 
of black lung disease among mine workers decreased about 90 percent 
from 1969 to 1995. However, after 1995, the prevalence of black lung 
disease rose. The increase was more marked in specific parts of the 
country, such as the Appalachian region.[Footnote 5] By 2006 the 
prevalence of black lung disease had more than doubled among 
underground coal miners who had worked 25 to 29 years--increasing from 
3.4 percent in 1995 to 7.9 percent. The rate of black lung disease 
among underground coal miners with 20 to 24 years of experience 
increased from 2.5 percent in 1995 to 6 percent in 2006.[Footnote 6] 
According to NIOSH officials, black lung disease may be occurring for a 
number of reasons, including weaknesses in the current coal mine dust 
regulations, noncompliance with those regulations, new risk factors 
associated with changing mining conditions, longer work hours, and 
missed opportunities to prevent severe disease through periodic medical 
screening. 

According to NIOSH, significant progress has been made toward improving 
the health condition; however, with coal currently mined in 27 
states[Footnote 7] and coal mines employing an average of 117,082 
workers,[Footnote 8] coal miners continue to be at risk of developing 
occupational lung disease. While miners across the country remain at 
risk for lung disease, incidence of black lung-related deaths are more 
concentrated in the Appalachian region (see fig. 1), where the coal 
mined has high carbon content. To address these issues, the DOL's Mine 
Safety and Health Administration intends to publish a proposed rule to 
lower the coal mine dust permissible exposure limit in April 2011. 

Figure 1: Deaths Related to Black Lung Disease from 1968 to 2005: 

[Refer to PDF for image: map of United States showing regions of death] 

Source: Energy Information Administration's Annual Cost Report, 2007; 
NIOSH Occupational Respiratory Disease Surveillance program. 

Note: The statistics used to create this graphic only refer to CWP, not 
other chronic respiratory or pulmonary impairments arising out of coal 
mine employment. 

[End of figure] 

The Black Lung Benefits Program provides medical and income assistance 
to coal mine workers who suffer disability or death due to black lung 
disease.[Footnote 9] To be eligible for black lung benefits, a coal 
miner must prove total disability due to pneumoconiosis (a chronic 
disease of the lung) arising from coal mine employment. Specifically, 
the miner must establish each of the following elements: (1; (2) the 
lung disease a;[Footnote 10] (3) the miner suffers from a totally 
disabling respiratory or lung impairment (a miner is considered totally 
disabled if black lung prevents him from engaging; and (4) the miner's 
pneumoconiosis is a substantially contributing cause of his 
disability.[Footnote 11] 

If a claimant[Footnote 12] is awarded benefits, the mine company that 
is determined to be the responsible employer of the miner generally 
must provide for the payment of benefits, either directly or through 
insurance. The Black Lung Disability Trust Fund pays the cost of black 
lung claims when no coal mine operator can be held liable for 
payments.[Footnote 13] The Black Lung Disability Trust Fund is financed 
by coal mine companies through an excise tax. Under the Black Lung 
Benefits Revenue Act of 1977, each coal mine operator is required to 
pay an excise tax to support payment of benefits to claimants and to 
cover the cost of administering the program.[Footnote 14] 

The Black Lung Benefits Program is administered by the Division of Coal 
Mine Workers' Compensation in OWCP. OWCP, OALJ, and BRB are three 
independent bodies within DOL that process claims, adjudicate cases, 
and issue decisions (see fig. 2).[Footnote 15] Once OWCP issues a 
decision, either the claimant, responsible mine operator (RO), or Black 
Lung Disability Trust Fund officials can request a hearing[Footnote 16] 
by OALJ. The administrative law judge provides a fresh review of the 
evidence and issues a decision. Any findings or conclusions by OWCP are 
not relevant or binding on the administrative law judge. Parties can 
appeal OALJ decisions to BRB, BRB decisions can be appealed to the 
appropriate United States Circuit Court of Appeals, and finally, 
Circuit Court of Appeals decisions may be appealed to the Supreme Court 
of the United States. Both OALJ and BRB can remand--send claims back-- 
to lower adjudicative bodies for additional review. Cases may be 
remanded for procedural errors or for further development of evidence. 

Figure 2: Overview of the Black Lung Claims Adjudication Process: 

[Refer to PDF for image: flowchart] 

Listed in sequential order: 

Claimant: (miner, his dependents,his survivors, or others) files claim; 

OWCP: Office of Workers’Compensation Programs: 

Claim evaluated: after employment, medical, and other information 
gathered; 

Preliminary assessment issued on claim and any potential liability of 
responsible mine operator (RO); 

Claimant and RO given opportunity to submit additional evidence; 

Decision issued on claimant’s entitlement and any liability of RO; 

Awarded: 

Was RO identified? 

Yes: 

Did RO dispute decision? 

Yes: 

TF pays claimant interim benefits if RO delays; 

No: 

RO pays claimant benefits; 

Was RO identified? 

No: 

Trust Fund (TF) pays claimant benefits; 

Decision issues on claimant's entitlement and any liability of RO: 

Denied: 

or: 

TF pays claimant interim benefits if RO delays; 

If claimant, TF, or RO appeal OALJ will perform a fresh analysis of the 
evident. Claimant and/or RO may be allowed to submit new medical 
evidence (leading from OALJ Office of Administrative Law Judges) 

Formal Hearing; 

Decision issued on claimant's entitlement and any liability of RO 

Awarded: 

Claimant paid by TF or RO, which can appeal; 

Appeal: 

or: 

Denied: 

If claimant, TF, or RO appeal, BRB reviews OALJ decision (leading from 
BRB: Benefits Review Board); 

Decision issued affirming, reversing, or modifying OALJ decision: 

Awarded: 

Claimant paid by TF or RO, which can appeal

Decision issued affirming, reversing, or modifying OALJ decision: 

Denied: 

Claimant paid by TF or RO, which can appeal

Appeal: 

If claimant, TF, or RO appeal, court reviews BRB decision (leading from 
U.S. Court of Appeals) 

Decision issued affirming, reversing, or modifying BRB decision: 

If still unsatisfied, claimant, TF, or RO can petition the U.S. Supreme 
Court; 

Source: GAO analysis of federal regulations, agency documents, and 
discussions with agency officials. 

[End of figure] 

Notes: This figure is intended to present a basic overview of the Black 
Lung Benefits Program's claims process. For clarity, some steps, 
processes, and legal options for any party to a claim are omitted. 

Modification of a claim may be requested up to one year after a 
decision denying benefits or by any party up to one year after the last 
payment of benefits. 

To ensure that claimants can properly develop evidence for their claim, 
DOL is required by law to give miners the opportunity to receive a 
complete pulmonary evaluation, which is paid for by the 
program.[Footnote 17] DOL provides the miner with a list of doctors and 
medical facilities that DOL has authorized to perform complete 
pulmonary evaluations that are located in the state of the miner's 
residence and bordering states.[Footnote 18] If a miner fails to 
undergo a required medical examination without good cause, the claim 
may be denied.[Footnote 19] In addition, a miner[Footnote 20] may 
submit a medical report (obtained at the miner's expense) from a 
personal doctor or a physician.[Footnote 21] 

In addition, mine workers afflicted with black lung disease may have 
access to some resources that help monitor their health and provide 
access to black lung benefits. For example, the Black Lung Clinics 
program, a federal program administered by HRSA, provides grants to 15 
public and private nonprofit organizations, known as "Black Lung 
Clinics," which provide specialized diagnosis and treatment services, 
outreach, and educational programs to help patients and their families 
deal with the disease. Black Lung Clinic benefit counselors also help 
provide clients with information about additional sources of social, 
medical, and legal assistance, specifically on where to obtain legal 
representation to establish a federal black lung benefits claim. In 
addition, some nonprofit organizations provide resources and support 
for coal miners and their survivors. For example, UMWA advocates for 
improving coal mine health and safety laws and regulations, and the 
Washington and Lee University Black Lung Legal Clinic provides legal 
assistance to coal miners and their survivors in pursuing federal black 
lung benefits. 

DOL Issued Claims Decisions at Each Stage of the Process, on Average, 
in 1 Year or Less, but High Rates of Appeal and Remand, Among Other 
Factors, Delay Resolution of Many Claims: 

DOL Issued Claims Decisions at Each Stage of the Claims Process, on 
Average, in 1 Year or Less: 

According to department data for fiscal year 2008, DOL decided claims 
at each stage of the claims process, on average, in 1 year or less, 
meeting its respective performance goals[Footnote 22] (see table 1). At 
the initial stage of claim processing, it took an average of 205 days 
for OWCP to issue a decision from the date the claim was 
received.[Footnote 23] OWCP receives the largest number of claims for 
miners or their dependents annually. At the first and second stages of 
appeal, OALJ averaged within 365 days to issue a decision on a claim 
from the date a transcript of the hearing was prepared, while BRB 
averaged 341 days to make a decision from the date the claim was 
received. 

Table 1: Performance Data for Each Stage of Claims Processing and 
Adjudication in Fiscal Year 2008: 

Level of claims and appeals: Office of Worker's Compensation (OWCP); 
Total new claims: 4,269; 
Total decisions: 4,416; 
Average days to issue decision: Performance goal: 220[B]; 
Average days to issue decision: Actual performance: 205. 

Level of claims and appeals: Office of Worker's Compensation (OWCP); 
Total new claims: 1,357[C]; 
Total decisions: 1,367; 
Average days to issue decision: Performance goal: less than/equal to 
365[D]; 
Average days to issue decision: Actual performance: less than/equal to 
365. 

Level of claims and appeals: Office of Worker's Compensation (OWCP); 
Total new claims: 573; 
Total decisions: 727; 
Average days to issue decision: Performance goal: less than/equal to 
365; 
Average days to issue decision: Actual performance: 341. 

Source: Workload and performance data from OWCP, OALJ, and BRB, as well 
as from OWCP's Automated Support Package claims tracking system. 

Notes: The annual number of claims received at first and second appeals 
tends to be less than those received at the initial claims processing 
stage because many claims at OWCP are withdrawn, abandoned, or awarded 
or denied without appeal. 

[A] Total decisions are greater than the total number of new claims at 
each stage, because the total workload at each stage is not captured 
solely with new claims (e.g., these data only represent the new claims 
filed in fiscal year 2008 and do not include claims yet to be decided 
from previous fiscal years). For OWCP, data on pending claims from the 
previous fiscal year were not available. However, pending claims 
carried over from the previous fiscal year for OALJ and BRB are 
detailed below. 

In addition, these data for the number of claims do not include a 
number of claims for which OWCP provides services for claimants 
currently receiving benefits (e.g., miners receiving benefits may 
submit a claim requesting modification of medical benefits provided). 

[B] This performance goal is for all types of claims, including claims 
with and without an identified RO and claims that are withdrawn or 
abandoned. 

[C] In fiscal year 2008, OALJ also had 1,938 pending claims carry-over 
from the previous fiscal year. 

[D] OALJ does not calculate the average time to issue a decision on 
claims, but for fiscal year 2009, it established a new performance 
goal: that 80 percent of decisions are to be issued within 365 days 
from the time a hearing transcript was prepared. For this report, OALJ 
applied the new performance goal retroactively to fiscal year 2008 and 
found that about 84 percent of decisions were issued within 365 days. 

[E] In fiscal year 2008, BRB also had 617 pending claims carry-over 
from the previous fiscal year. 

[End of table] 

DOL Does Not Track How Long Claims Remain in the Process, but Some 
Claims Spent 3 Years or More in the Process: 

DOL does not track how long all claims remain in the claims and appeals 
process, but we calculated that about 28 percent of the claims of 
miners awarded benefits from mine companies spent 3 years or more in 
the process. DOL officials gave the following reasons for not tracking 
how long claims may remain in the claims and appeals process: 

* The adjudicating bodies at each stage of the Black Lung Benefits 
Program's claims and appeals process maintain independence and do not 
share similar administrative processes or computer systems. 

* OWCP's claimant tracking system was designed, in part, to ensure that 
eligible claimants are ultimately paid, not to determine how long 
claims remain in the process. 

* Determining how long claims persist in the claims and appeals process 
can be challenging because it is difficult to determine what 
constitutes a claim's resolution. For example, claims can be appealed 
up to 30 or 60 days after a decision, and a modification of a claim may 
also be requested up to one year after a decision denying benefits or 
by any party up to one year after the last payment of benefits. 

Given this, we chose to measure how long cases persisted in the claims 
and appeals process by using OWCP's data and looking only at when an 
identified RO agreed to pay benefits to a miner, which we believe was 
the best available indicator of cases that had been resolved.[Footnote 
24] Yet, this approach has some limitations as noted above.[Footnote 
25] 

For the claims we examined, which were filed between 2001 and 2008, 
mine companies agreed to pay benefits for the majority of claims within 
3 years from the date of the initial claim, while a minority of claims 
remained in the process for as many as 8 years before an RO agreed to 
pay[Footnote 26] (see fig. 3). We only focused on those claims where a 
miner was ultimately awarded benefits by an RO because, according to 
DOL officials, these claims are likely to be the most 
litigated.[Footnote 27] We also focused on claims made between 2001 and 
2008 because DOL officials said that several changes in the regulatory 
and statutory structure of the program before then negatively impacted 
the rate at which claims moved through the process and that major 
regulatory revisions implemented in 2001[Footnote 28] heavily affected 
the current program's procedures. For about 73 percent of the 763 
examined claims filed between 2001 and 2008, ROs agreed to pay in less 
than 3 years. For roughly 24 percent of the 763 claims, ROs agreed to 
pay within 3 to 6 years from the time the claim was filed. For the few 
remaining claims, about 4 percent, ROs agreed to pay within 6 to 8 
years from the time a claim was filed.[Footnote 29] However, the 
results of our analysis may represent a best-case scenario because some 
claims filed between 2001 and 2008 are still in the claims and appeals 
process and the length of time necessary for a RO to agree on payment 
could not be measured. In addition, these findings cannot be 
generalized to miners who were denied benefits or other types of 
claimants. 

Figure 3: Time to Resolve Claims Filed between 2001 and 2008 for Miners 
Awarded Benefits from Mine Companies: 

[Refer to PDF for image: vertical bar graph] 

Years to resolution: 1; 
Number of claims: 257. 

Years to resolution: 2; 
Number of claims: 173. 

Years to resolution: 3; 
Number of claims: 124. 

Years to resolution: 4; 
Number of claims: 75. 

Years to resolution: 5; 
Number of claims: 58. 

Years to resolution: 6; 
Number of claims: 48. 

Years to resolution: 7; 
Number of claims: 20. 

Years to resolution: 8; 
Number of claims: 8. 

73% of claims tool less than 3 years; 
24% took 3 to 6 years; 
4% took more than 6 years.

Source: GAO analysis of data from the Department of Labor's Automated 
Support Package claims tracking system. 

Notes: Percentages may not add to 100 due to rounding. In addition, 
this analysis measured the time from the application date of a claim to 
the time an RO agreed to pay benefits as measured by OWCP's Automated 
Support Package claims tracking system. However, OWCP may not have 
received some claims for several months after the claim was originally 
submitted by a claimant. Moreover, according to DOL officials, the time 
taken for a miner to receive the first benefits payment from the RO may 
actually take as much as a month longer for administrative reasons. 
Finally, this analysis did not include miners who were denied benefits, 
deceased miners' widows or other dependents, or miners who were granted 
awards from the Black Lung Disability Trust Fund. For more information 
on this analysis, see appendix I. 

[End of figure] 

According to DOL officials, far fewer claims end up in the appeals 
process now than was the case historically due to a decline in the 
number of claims and the fact that presently, for the majority of 
claims, there is no request for further action beyond OWCP's decision. 
According to DOL officials, on average, about 80 percent of all claims 
decided by OWCP annually have no requests for further action. For 
example, in fiscal year 2006, OWCP decided about 81 percent of all 
claims with no requests for further action pending after one year. In 
addition, DOL officials said that for a number of reasons--including a 
decline in the number of miners in the United States--they receive far 
fewer claims annually than in prior years. For example, according to 
data provided by DOL, in fiscal year 1985, 12,250 new claims were filed 
at OWCP, while there were only 4,269 new claims filed in fiscal year 
2008. 

A Significant Number of Claims Are Appealed and Many Claims Are 
Remanded: 

Although a majority of claims are resolved with OWCP, we found that a 
significant number of claims--approximately 20 percent--request further 
action, many of which are appeals to OALJ. Both miners and mine 
operators frequently seek appeals,[Footnote 30] and a significant 
number of claims are appealed after a decision is issued by OWCP either 
awarding or denying benefits.[Footnote 31] For example, in fiscal year 
2008, for claims where an RO was identified and OWCP awarded benefits 
to a claimant, mine operators appealed OWCP's decision approximately 80 
percent of the time.[Footnote 32] In the same fiscal year, 
approximately 15 percent of all miners' claims denied at OWCP were 
appealed by miners. In addition, according to BRB officials, between 
fiscal years 2004 and 2008, approximately 43 percent of all claims 
decided by OALJ were appealed to BRB, and about 10 percent of all BRB 
decisions were appealed to federal appellate courts. 

In addition to the significant number of claims that are appealed, many 
are remanded back to the prior review stage by DOL adjudicators, 
according to DOL officials. Officials said remands can extend appeals 
for less than 1 month to up to 1 year, depending on why a claim is 
remanded and other factors. In fiscal year 2008, BRB remanded one-third 
of all claims referred to it back to one of the two lower bodies, while 
OALJ remanded 13 percent of claims it considered back to OWCP. Claims 
are remanded for several reasons. At the first stage of appeal (OALJ), 
remands are made when evidence needs to be developed further or when 
the appeal is withdrawn by the litigant or dismissed by the 
judge.[Footnote 33] At the second stage of appeal (BRB), remands are 
made to either OWCP for the resolution of issues, such as the proper 
development of evidence, or to the OALJ for reconsideration. 

Officials at DOL offered divergent opinions on why cases were remanded. 
Some administrative law judges said claims are sometimes remanded to 
OWCP because medical evidence submitted by DOL's approved doctors was 
incomplete and required clarification or further development. BRB 
judges said claims are commonly remanded to OALJ for reconsideration 
because of certain legal deficiencies, such as errors in weighing 
evidence. However, several administrative law judges said that they 
believed that BRB sometimes remands claims for further review by the 
administrative law judge to avoid the potential review of a BRB 
decision by a United States Circuit Court of Appeals, and others said 
that in their view, certain remands are the result of BRB reweighing 
evidence, which is beyond the narrow scope of BRB review.[Footnote 34] 
In 2007, an independent program reviewer examined the number of OALJ 
remands to OWCP and concluded that further study of the causes of 
remands could help DOL identify policies and procedures that reduce 
this source of delays.[Footnote 35] No study has been conducted to 
determine the causes of remands by any of DOL's adjudicators back to 
the prior review stage, whether from adjudicatory bodies back to OWCP 
or from BRB to OALJ, according to DOL officials.[Footnote 36] 

Stakeholders Say There Are Financial Incentives to Extend Appeals and 
Prolong the Adjudication of Claims: 

The structure of the Black Lung Benefits Program creates financial 
incentives for claimants to appeal denials of claims. According to DOL 
officials, some miners extend appeals in an attempt to have interim 
benefits reinstated or to maintain their payment of interim benefits. 
Specifically, for miners whose claims are initially awarded but then 
appealed, the program provides interim benefit payments that cover 
medical expenses and a roughly $600 to $1,200 monthly stipend. 
Consequently, if an award is overturned by OALJ or BRB, the claimant 
has a major incentive to appeal again in an attempt to reinstate these 
benefits. Moreover, according to DOL officials, some sick miners never 
expect to win; rather, the approach is to keep their black lung claim 
alive--for example, by requesting numerous continuances--until their 
death, with the expectation that DOL will not seek to recoup interim 
benefit payments from their surviving spouse or dependents.[Footnote 
37] 

DOL officials also said that mine companies have financial incentives 
to prolong the adjudication of claims. First, according to DOL 
officials, mine companies often skip the initial stage of the claims 
process altogether and do not begin to develop a defense until the 
hearing before OALJ, which may delay a definitive decision. Under the 
program, mine companies are not required to submit evidence during 
initial claims processing at OWCP, and as discussed earlier, any 
findings or conclusions by OWCP are not relevant or binding on the 
administrative law judge. DOL officials said that because some claims 
lack merit and many claims are abandoned or withdrawn, mine companies 
see no need to develop a defense and submit evidence for these cases. 
Second, according to some administrative law judges, when mine 
companies do submit evidence during appeals, it is sometimes submitted 
after the claimant has first submitted his own evidence and just prior 
to a hearing. Doing so may afford the mine companies the opportunity to 
evaluate and most effectively counter claimants' evidence, according to 
some administrative law judges and claimant attorneys. Some 
administrative law judges said that this tactic may delay the issuance 
of a decision because judges may allow claimants the opportunity to 
develop the record after the hearing if they did not have sufficient 
time prior to the hearing to address the newly submitted evidence. 

OWCP officials said that a provision in a 1997 proposed rule would have 
addressed such delays and other concerns, by requiring parties to 
submit all evidence at the initial claim stage.[Footnote 38] According 
to these officials, this proposed provision would have allowed OWCP to 
make more informed decisions up front and avoid some of the protracted 
and expensive appeals.[Footnote 39] The proposal received much 
criticism during the public comment period and was not adopted in the 
final rule.[Footnote 40] According to DOL officials, one concept from 
this proposal has been implemented through an administrative procedure: 
prior to issuing a decision on a claim, OWCP now issues a preliminary 
assessment concerning the claimant's eligibility for benefits based on 
the information gathered to that point. DOL officials said that this 
has helped to address mine operator concerns about the costs of 
developing a defense for every claim because many claimants withdraw 
when OWCP's preliminary assessment does not favor eligibility. 

Some Hearings Are Delayed by the Need for Judges to Travel to Remote 
Locations and to Grant Claimants Additional Time to Seek 
Representation: 

Some hearings are delayed because claimants reside in rural and remote 
locations. According to administrative law judges, when claimants live 
in remote locations, hearings are delayed until several cases can be 
scheduled at the same time in one region, which limits lengthy travel 
required of judges.[Footnote 41] According to one Black Lung Clinic 
official, in some cases, scheduling hearings for miners who live in 
remote locations can take more than 2 years. On the other hand, when 
asked whether video technology--such as that employed by the Social 
Security Administration's Disability Determination Services--might 
reduce hearing delays by eliminating the need to travel, some of DOL's 
administrative law judges said it might accelerate hearings for miners 
or their dependents in rural and remote settings. 

Hearings can also be delayed because claimants lack legal 
representation. Administrative law judges said that in some cases, the 
first appearance by miners or their dependents at the OALJ hearing is 
without legal counsel. In such cases, administrative law judges said 
that it is standard practice for the judge to ask if the claimant has 
legal representation or if the claimant has sought representation. If a 
claimant needs more time to obtain legal counsel, the judge typically 
grants a hearing continuance.[Footnote 42] According to OALJ, 
continuances may delay claims adjudication between 5 and 6 months. 
Administrative law judges said that it is not uncommon to grant one or 
two continuances to unrepresented claimants seeking counsel. 

Most Claims Are Initially Denied, Most Often because Claimants Cannot 
Meet All Evidentiary Requirements: 

DOL Denies a Majority of Initial Claims and about Half of All 
Subsequent Appeals: 

Since 2001, most claims have been initially denied; and for 2008, we 
calculated that about half of all appeals resulted in the denial of 
claimant benefits. The OWCP overall denial rate for black lung claims 
has remained constant at around 85 percent or higher in the 8 years 
since the fiscal year 2001 changes to the Black Lung Benefits Program 
regulations. At the initial claims level, OWCP denied 87 percent of the 
4,416 claims decided in fiscal year 2008 (see table 2). There was 
virtually no difference between the denial rates for claims filed 
against the DOL-managed Black Lung Disability Trust Fund (84 percent) 
and claims filed against mine companies (88 percent). At the first 
level of appeals, OALJ issued decisions that resulted in the denial of 
claimant benefits in more than half, or 53 percent, of the 1,367 
decisions issued in fiscal year 2008.[Footnote 43] At the second level 
of appeals, BRB decisions resulted in the denial of claimant benefits 
in about half, or 47 percent, of the 737 appeals issued in fiscal year 
2008.[Footnote 44] Because neither OALJ nor BRB systematically track 
whether their decisions result in the award or denial of claimant 
benefits, we were only able to determine their denial rates for 1 year 
and were not able to determine how they have changed over time. 

Table 2: The Number of Black Lung Claims and Appeals Decisions Issued 
and the Percent That Resulted in Denial of Claimant Benefits in Fiscal 
Year 2008: 

DOL agency: OWCP; 
Number of black lung claims and appeals decisions issued: 4,416; 
Percent of black lung decisions that resulted in the denial of claimant 
benefits: 87. 

DOL agency: OALJ; 
Number of black lung claims and appeals decisions issued: 1,367; 
Percent of black lung decisions that resulted in the denial of claimant 
benefits: 53. 

DOL agency: BRB; 
Number of black lung claims and appeals decisions issued: ; 
Percent of black lung decisions that resulted in the denial of claimant 
benefits: 47. 

[End of table] 

Source: GAO analysis of Department of Labor data. 

Few Claimants Are Able to Prove They Meet All of the Program's 
Evidentiary Requirements: 

Text Box: 

Lung Disease Associated with Long-Term Coal Mine Dust Exposure: 

Healthy Lung Photo: 

Source: NIOSH, 2009. 

Simple Coal Workers' Pneumoconiosis Photo: 

Source: NIOSH, 2009.

Coal mine dust can cause a range of lung diseases depending on the 
level of exposure. These images, taken from autopsies of deceased 
miners show the impact that coal dust can have on the lungs. The second 
image depicts lungs that have been damaged as a result of Simple Coal 
Workers’ Pneumoconiosis (CWP). In contrast to the healthy lungs on top, 
the CWP lungs show mild to moderate lung scarring that may result in 
impaired lung function. While lung scarring is apparent in the autopsy 
image, the ability to detect Simple CWP in X-rays may vary by 
physician. 

[End of text box] 

Few claimants are able to meet all of the program's evidentiary 
requirements, which are set by law. In order to be eligible for black 
lung benefits, claimants generally must prove they have pneumoconiosis-
-coal-induced lung disease--that they are totally disabled as a result 
of it, and that the disease is caused by their mine employment. Based 
on DOL data, we calculated that over 60 percent of the claims 
adjudicated and denied by OWCP in fiscal year 2008 and estimated that 
over half of the claims adjudicated and denied by OALJ and BRB were 
denied because claimants could not prove that they had pneumoconiosis 
or, if they could, that pneumoconiosis had caused disability or 
death.[Footnote 45] Some claimants have difficulty proving that their 
lung disease is pneumoconiosis.[Footnote 46] Although a lung X-ray can 
detect scarring, agency officials report that claimant doctors and 
company physicians may each read the X-ray differently. In addition, 
according to NIOSH scientists, some miners develop a form of lung 
disease associated with long-term exposure to coal mine dust that 
impairs lung function but frequently cannot be detected by X-ray. 
Agency officials and claimant doctors we interviewed said a significant 
portion of black lung claimants who have this form of pneumoconiosis 
also have a history of smoking, which presents another evidentiary 
problem: while the Black Lung Benefits Program regulations require that 
miners prove coal dust is a significant contributing cause of their 
disability,[Footnote 47] NIOSH officials reported that there is no 
scientific way to assign the proportion of cause to either inhalation 
of coal dust or tobacco smoke. Depending on the intensity and duration 
of exposures to coal dust and tobacco smoke, both can play a role in 
the impairment and disability of a miner. In such cases, judges told us 
that they rely heavily on nonclinical evidence to determine whether 
claimants are eligible for benefits. According to some administrative 
law judges, mining company doctors are usually better credentialed and 
produce lengthier, more sophisticated, and comprehensive medical 
reports and evaluations than claimants' doctors. For example, some 
claimants' doctors may only produce DOL's 4-page medical evaluation, 
while RO doctors will provide medical reports in excess of 20 pages 
supported by various citations from medical journals. 

Text box: 

Advanced Coal Workers’ Pneumoconiosis Photo: 

Source: NIOSH, 2009. 

Coal Mine-Induced Emphysema Photo:

Source: NIOSH, 2009. 

In contrast to Simple Coal Workers’ Pneumoconiosis (CWP), Advanced CWP, 
as seen in the first image, is generally characterized by massive lung 
scarring and lesions, resulting in severely impaired lung function. The 
second image depicts Coal Mine-Induced Emphysema, which is 
characterized by destruction of respiratory tissues, resulting in 
impaired airflow through the lungs and into the bloodstream. Emphysema 
is one type of Chronic Obstructive Pulmonary Disease (COPD) associated 
with long-term coal mine dust exposure, which includes Chronic 
Bronchitis, among others. 

[End of text box] 

Claimants who can prove they have pneumoconiosis may nevertheless be 
unable to establish that it is a significantly contributing cause for 
the condition of their lungs, if other medical conditions are present 
that may contribute as well. Agency officials, claimants' attorneys, 
and physicians with whom we spoke said claimants may also suffer from 
ailments such as heart disease, tuberculosis, or sarcoidosis-- 
impairments which, like pneumoconiosis, can diminish a claimant's lung 
function. In cases where it is difficult to determine the cause of a 
claimant's disability, administrative law judges must decide whether 
the claimant's doctor or the mine operator's doctor has offered the 
most well-reasoned medical opinion. As in the case of smokers with 
pneumoconiosis, judges told us they rely heavily on nonclinical 
evidence, namely physician credentials and the length and 
comprehensiveness of the evidence presented by the parties. 

Some Parties Suggest That the Black Lung Program Should Provide a 
Settlement Option: 

Although it can be difficult for some claimants to meet all of the 
Black Lung Benefit Program's evidentiary standards, there is no 
settlement option, such as an agreement for payment of partial benefits 
for partial disability. Though settlement is prohibited under the 
current statute,[Footnote 48] some stakeholders told us that a 
settlement option would increase the number of miners who would receive 
awards and reduce the amount of time it takes to resolve black lung 
claims. Still, others have said that such settlements would be 
incongruent with the fact that the disease is progressive. Some DOL 
officials told us that settlement would cause miners to settle for 
award amounts that would be less than what they would be eligible for 
once the disease progressed. Others noted that if the program permitted 
claimants to be paid through a lump sum settlement, instead of the 
current practice of receiving monthly benefit payments, miners might 
spend their award before they would most need it. 

Other state and federal workers' compensation programs, including the 
Longshore and Harbor Workers' Compensation Act, do allow claimants to 
settle their claims or to be compensated for partial 
disability.[Footnote 49] The West Virginia state workers' compensation 
program, among others, also provides the option for claimants to settle 
their black lung claim for partial disability. One claimant with whom 
we spoke who has been unable to resolve his federal black lung claim 
for 8 years was able to receive compensation for partial disability 
under the West Virginia workers' compensation program while still 
employed as a coal miner. Although this settlement option has been used 
in other workers' compensation programs, DOL officials--citing the 
prohibition in the statute--said to date, there has been no research 
done to evaluate the costs and benefits of offering settlement for 
partial disability to black lung claimants. 

Coal Miners Face a Number of Challenges in Pursuing Federal Black Lung 
Benefits, Including Finding Legal Representation and Developing Sound 
Medical Evidence: 

Although the Program and DOL Recognize the Importance of Legal 
Representation for Miners, DOL Does Not Track, Evaluate, and Report on 
Claimants' Access to Legal Representation: 

The importance of legal representation for black lung claimants is well 
established. The Black Lung Benefits Act recognizes the importance of 
claimant representation by providing reasonable fees for claimant 
attorneys in the successful prosecution of a claim under the 
statute.[Footnote 50] DOL has recognized that the early involvement of 
legal representatives in claimants' cases improves the quality of 
evidence submitted and the decision making in all claims for 
benefits.[Footnote 51] Therefore, DOL issued regulations in 2001 that 
provide for compensation of claimant attorneys for all reasonable time, 
from the outset of a case, if it ends in an award.[Footnote 52] In a 
variety of ways, DOL has also encouraged black lung claimants to seek 
representation for the claims they initially file, as well as the 
claims they appeal.[Footnote 53] For example, DOL's Web site includes a 
claimant resource page that provides representation guidelines for 
administrative appeals and identifies a number of lawyer referral 
services, including services with the American Bar Association and 
legal aid clinics associated with law schools and other nonprofit 
organizations. On this Web page, OALJ advises claimants that DOL 
adjudications "vary widely in complexity and in many instances it may 
be wise to obtain legal counsel." Administrative law judges also use 
various means to encourage claimants to seek representation. For 
example, some judges provide information about the advantages of 
representation in the Notice of Hearing, talk directly to unrepresented 
claimants about such advantages at the hearing, or issue a special 
letter to unrepresented claimants indicating that black lung cases 
often involve complicated legal issues and encouraging them to find 
representation. Finally, judges are permitted to grant claimants 
additional time in order for them to secure representation before a 
hearing.[Footnote 54] 

While DOL collects some information about claimant representation, it 
does not track, evaluate, or report on claimants' access to legal 
representation throughout the claims and appeals process. At our 
request, OWCP, OALJ, and BRB provided us with the number of claimants 
with legal representation at each stage of the process based on data 
captured by their systems. However, due to limitations in data 
collection, these numbers were not sufficiently reliable for use in our 
report. For example, at the OWCP level, officials told us that some 
claimant representation information is captured by an automated 
correspondence system, separate from the main data management system, 
but that the correspondence system was not designed to track claimant 
representation and cannot identify types of representatives and at what 
point in the claims process a claimant acquired representation. The 
data management systems used by OALJ and BRB capture claimant 
representation data, but these data are limited by similar factors. For 
example, OALJ's system cannot identify whether a representative is an 
attorney or lay representative and at what point in the appeals process 
a claimant acquired representation. In addition, BRB officials told us 
that their data do not include the number of all appeals filed without 
counsel because they do not track legal representation for appeals 
filed by nonprofit agencies on the behalf of black lung claimants. 
Further, OWCP, OALJ, and BRB officials told us that they do not report 
any of the representation information they collect or use it to measure 
performance. However, a number of DOL officials told us that finding 
representation is a significant challenge for many claimants. For 
example, program officials cited claimants' lack of representation, 
particularly in the early stages of a claim, as a significant barrier 
to successful claims. OALJ officials told us that few attorneys will 
represent black lung claimants and that lack of legal representation 
limits OALJ's ability to process cases quickly. 

Disincentives for Lawyers to Take Claimants' Cases and Scarce Nonprofit 
Resources Impede Claimants' Ability to Secure Legal Representation: 

There are few financial incentives for lawyers to take black lung 
claimants' cases, and claimants generally do not have the financial 
resources to cover the costs associated with developing the evidence 
needed to support and defend their claims. According to DOL officials, 
attorneys are not inclined to take claimants' cases due to a low 
probability of success. As noted previously, only 13 percent of all 
claims were initially approved by OWCP in fiscal year 2008. Moreover, 
while DOL has no official data on the final approval rate after all 
appeals are exhausted, black lung experts suggested that the final 
award rate is about half of the initial award rate. Other disincentives 
DOL officials and claimant attorneys cited are that the process can be 
lengthy and costly. For example, one attorney told us that it has taken 
as long as 15 years from the start of a black lung case to receive 
compensation for working on it.[Footnote 55] Among the significant 
legal costs that claimant attorneys said they incur with black lung 
cases is the time spent preparing legal briefs and expenses associated 
with evidence development, such as preparing medical experts' reports. 
Because claimants lack financial resources for evidence development and 
DOL's payment of claimant attorneys' fees is contingent on the success 
of cases, claimant attorneys bear much of the legal costs during the 
litigation of claimants' cases.[Footnote 56] In Black Lung Benefits Act 
cases, a claimant may not be charged a fee by an attorney unless black 
lung benefits are awarded.[Footnote 57] While no precise estimates of 
legal costs for claimant cases were available, based on GAO's analysis 
of one law firm's estimated total legal costs for black lung cases, 
cases that took roughly between 2 to 4 years to resolve averaged about 
$18,000 in total legal costs. This firm also indicated that it has five 
unresolved black lung cases that have been active 7 years or more, with 
an average cost of at least $70,000 in total accrued legal 
costs.[Footnote 58] In contrast to reports of limited representation 
available to claimants, DOL officials and representatives from claimant 
groups and mine companies said that mine operators tend to have greater 
resources to develop black lung evidence. 

Various nonprofit organizations offer assistance to claimants, but 
their capacity to meet the legal needs of black lung claimants is 
limited. A prominent nonprofit legal resource for claimants is a black 
lung legal clinic operated by the law school at Washington and Lee 
University in Virginia. Currently, the clinic has 42 active black lung 
cases, and its operation relies largely on the voluntary efforts of law 
professors and their students. Officials told us that the clinic does 
not have the resources to provide legal assistance to a larger number 
of black lung claimants. Another source of nonprofit legal assistance 
for claimants is the federally supported Black Lung Clinics program, 
which primarily provides medical services. Serving 14 states, these 
clinic; they provide miners with a number of services related to the 
diagnosis and treatment of black lung disease. Some clinics are 
authorized by DOL to conduct diagnostic testing for the Black Lung 
Benefits Program, and clinics are encouraged by the Black Lung Clinics 
program to assist miners with their claims through benefit counseling 
and legal referral. According to program officials, four clinics 
receiving HRSA grants also provide claimants with free lay 
representation.[Footnote 59] DOL administrative law judges told us that 
some lay representatives have provided miners with effective support 
and guidance by helping them understand the claims process and properly 
complete the required documentation on time. However, they noted that 
lay representatives are better suited to helping claimants with initial 
claims than with appeals, which they said generally requires formal 
legal training. At one time, the UMWA offered legal representation for 
black lung claimants, but UMWA representatives said currently that they 
can only refer claimants to outside legal representatives. 

Evidentiary Documents Submitted by DOL-Approved Doctors Do Not Always 
Provide Sound or Thorough Support for Miner Claims: 

DOL administrative law judges and claimant advocates reported that 
doctors who have been approved by DOL to conduct diagnostic tests and 
provide pulmonary evaluations do not always submit complete medical 
documentation.[Footnote 60] DOL judges told us that doctors' medical 
opinions are a key element of evidence in claims adjudication and 
indicated that most of the opinions submitted by DOL's approved doctors 
did not provide claimants with sound evidentiary support for their 
cases. In particular, DOL judges told us that doctors' written opinions 
frequently lack clarity and specificity on the causal factors of 
disease and do not adequately explain their reasons for their 
conclusions, if at all. 

While DOL has made efforts through its national and district offices to 
educate its approved diagnostic providers about documenting medical 
evidence for black lung claimants, some claimant doctors and 
representatives told us that the program does not consistently provide 
doctors with clear guidance for effectively and completely documenting 
their medical opinions, particularly with respect to describing the 
causes of disease and explaining the basis of their medical 
conclusions. In particular, one doctor with experience as a DOL- 
approved provider told us that doctors new to DOL's approved list are 
often unclear about how to properly document their medical opinions on 
DOL's medical evaluation form.[Footnote 61] 

While DOL provides supplemental guidelines for doing this, he suggested 
that many DOL-approved physicians are not accustomed to the 
comprehensive, narrative format required by DOL.[Footnote 62] Program 
officials told us that the comprehensive narrative format is necessary 
and preferable over forms that solicit discrete responses because of 
the complexity of black lung disease and the importance of good 
reasoning in developing sound medical evidence. However, according to 
one doctor, the narrative portion of the pulmonary evaluation form is 
often left incomplete or poorly developed because of its open-ended 
structure. In an attempt to improve the clarity and completeness of 
medical evaluations, as well as reduce the need for doctor follow-up, 
one DOL district office developed a supplemental questionnaire for 
soliciting explicit information from doctors and attached it to DOL's 
official medical form. According to officials at this district office, 
the supplemental form effectively supported their efforts in improving 
the quality of medical evidence documented by approved doctors. 
However, DOL's national office required the district office to 
discontinue using this supplement as a routine form because it had not 
been authorized through the Office of Management and Budget. 

Text box: 

Diagnostic Testing for Black Lung Disease and Associated Disability: 

Photo: 

Source: Cook County Health and Hospitals System. 

In order to determine the presence or absence of black lung disease and 
the degree of associated disability, miner-claimants for federal black 
lung benefits are required to undergo a series of diagnostic tests, 
including a chest X-ray, pulmonary function study (breathing tests), 
arterial blood gas study, and a physical examination. Diagnostic tests 
are conducted on miners by DOL-approved physicians, and if contested, 
by physicians contracted by mine companies or their insurers. The 
clinical information reported from diagnostic testing generally 
constitutes a significant part of the parties’ medical evidence in 
black lung cases. 

Photo: 

Source: Cook County Health and Hospitals System. 

[End of text box] 

The extent to which DOL's district offices hold approved doctors 
accountable for the quality of submitted medical evidence is unclear 
because DOL does not track whether and how often district offices need 
to follow-up with doctors or withhold payment for inadequate medical 
documentation. DOL can also remove a doctor from the approved list for 
poor performance, including poor quality of documentation and delays in 
submitting reports. Since the creation of DOL's approved provider list 
in 2001, OWCP has removed four doctors and reinstated one. However, DOL 
officials told us they are reluctant to remove doctors because of 
challenges in maintaining an adequate number who are qualified to 
conduct diagnostic testing for the program. For example, in identifying 
recruiting challenges, DOL officials said that some doctors do not want 
to expose themselves to cross-examination by attorneys for the mine 
employers or their insurers. They also noted that certain geographic 
areas present difficulties for finding enough qualified doctors 
suitable for the approved list. Consequently, OWCP may use more liberal 
standards for evaluating the qualifications of doctors in these areas 
to ensure that claimants have access to and, where possible, a choice 
between approved doctors. Because of recruiting challenges, DOL 
officials said that they prefer to work with approved doctors to 
improve the quality of their documentation, rather than remove them 
from the approved list. 

Blood Gas Testing Practices May Contribute to Inaccurate Disability 
Readings for Claimants: 

Medical experts with whom we spoke told us that some practices of 
conducting blood gas tests, which provide evidence for claimant and RO 
parties, may contribute to inaccurate disability readings for 
claimants.[Footnote 63] Blood gas tests are required by regulation and 
conducted with the miner at rest and, if medically indicated, during 
exercise.[Footnote 64] According to one medical expert, inaccurate 
readings can result from insufficient intensity or duration of 
exercise, poorly executed manual blood draw, prolonged delay between 
blood draw and sample analysis, and improperly calibrated diagnostic 
equipment, among others things. DOL officials acknowledged that 
differences in how doctors conduct blood gas tests may influence test 
results. In particular, they stated that using a catheter is more 
reliable and, therefore, preferable to a single stick or to manually 
drawing blood with a syringe. However, they explained that diagnostic 
testing facilities in some areas may not have the capacity to carry out 
blood draws using indwelling catheters. They also said that, generally, 
they are not able to monitor or control how doctors conduct blood gas 
tests. DOL validates the results of all blood gas tests conducted by 
its approved doctors. In contrast, officials said they do not have the 
authority to validate or require validation of results of tests 
conducted by mine operator doctors. 

Claimant advocates and representatives from black lung clinics we 
interviewed alleged that some doctors working for mine companies or 
their insurers conduct blood gas tests in ways that boost claimants' 
blood oxygen levels, thereby lowering their disability readings. 
Examples they provided include failing to record the pulse rate during 
the blood draw, not icing blood samples, shaking blood samples to 
aerate them prior to analysis, and allowing significant delays between 
drawing and analyzing blood. Program officials acknowledged that they 
are aware of such allegations but said they have no way to test the 
veracity of these claims or determine the incidence of such practices. 
Currently, DOL has no system for logging and tracking complaints it 
receives from parties to black lung cases concerning testing practices 
of either DOL-approved or RO-hired doctors. Mine industry 
representatives with whom we spoke said they are not aware of 
complaints or any cases of manipulation. 

Conclusions: 

The Black Lung Benefits Program remains a significant source of black 
lung compensation for the nation's coal miners, but there are a number 
of administrative and structural problems that could impede the ability 
of eligible miners to pursue claims. First, the high rate of appeals by 
both claimants and mine operators and the high number of remands by 
OALJ and BRB all prolong the resolution of claims. Although the cause 
for these rates is not entirely clear, it is evident that the program's 
structure can create financial incentives for both miners and mine 
operators to continue to file or extend appeals. Without ways to 
streamline or speed the appeals process, expedite hearings for remote 
areas, and avoid remands, many claims will likely continue to go 
unresolved for years. Yet, because DOL does not track all claims from 
initial application through appeals, the agency cannot begin to 
accurately assess the scope of this problem or develop strategies to 
improve it. 

In recent years, few claimants have been able to meet all of the 
program's evidentiary requirements, and the current state of black lung 
science makes it difficult for claimants to meet certain requirements. 
Without a thorough examination of the ability of claimants to meet 
evidentiary standards or exploring alternatives to resolving claims, 
such as settlement, claimants with meritorious claims may not receive 
benefits. 

Moreover, many claimants are not equipped with the medical and legal 
resources they need to develop evidence that will meet the program's 
requirements. While miners must be able to develop sound evidentiary 
support for their black lung cases, the medical evidence prepared by 
DOL-approved doctors does not consistently provide this support, and 
blood gas testing practices may contribute to inaccurate disability 
test readings. In the absence of complete and reliable medical evidence 
for miners, there is a greater chance that the judges who review the 
cases will be presented with medical evidence that is insufficient. 
Similarly, without better options for legal representation, significant 
numbers of claimants proceed with their claims through a complex and 
potentially long administrative process without the resources DOL 
officials and black lung experts note are important to developing 
evidence and supporting their claims. Yet, DOL does not collect data 
that would offer a complete assessment of the scope of this problem. 
Absent efforts to re-examine these structural issues and remedy 
administrative problems, claimants with meritorious claims will go 
without benefits, and delays in the resolution of claims will continue. 

Recommendations for Executive Action: 

To improve the effectiveness of the Black Lung Benefits Program, we 
recommend that the Secretary of Labor undertake the following seven 
actions: 

1. Take steps to reduce the number of black lung cases remanded from 
BRB to OALJ by convening a group to determine the causes of these 
remands and develop solutions for reducing their incidence. 

2. Obtain summary information on how long it takes to resolve claims 
using its current automated system to routinely track cases through the 
entire adjudication process and develop associated performance 
measures. 

3. Consider shortening the time required to schedule hearings for black 
lung cases by examining the feasibility of using video teleconferencing 
technology to streamline the scheduling of hearings in remote areas. 

4. Based on feedback from relevant black lung medical stakeholders, 
including approved diagnostic providers and Black Lung Clinics, develop 
options for improving how doctors' opinions are documented on DOL's 
medical evaluation form. 

5. Evaluate and report on claimant access to legal and lay 
representation by implementing changes to the data management systems 
of OWCP, OALJ, and BRB that will permit accurate data about claimant 
representation throughout the claims and appeals process. 

6. Evaluate and address blood gas testing practices that may contribute 
to inaccurate disability test readings by implementing a feedback 
mechanism to record and track complaints from federal black lung claims 
stakeholders about testing practices. 

7. Examine the following issues and evaluate the potential for 
proposing structural changes to the program to Congress: 

* options for enhancing incentives for attorneys and lay 
representatives to take claimants cases; areas that could be explored 
include alternate pay structures for attorneys and an examination of 
federal support for lay representation; 

* the costs and benefits of allowing compensation for partial 
disability and settlement of claims; 

* the clinical limitations in documenting evidence to prove 
pneumoconiosis; and: 

* new and previous proposals to reduce the amount of time it takes to 
resolve claims and appeals, including requiring complete evidentiary 
development at the primary claims processing phase and limiting the 
need for appeals. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to DOL for review and comment. The 
department provided written comments with OWCP, OALJ, and BRB 
responding to our report in three separate letters. These letters are 
reproduced in appendix II. In its comments, DOL generally agreed with 
six of our recommendations, and disagreed with one recommendation. DOL 
agreed to take steps to reduce the number of black lung cases remanded 
from BRB to OALJ by convening a group to determine the causes of these 
remands and develop solutions for reducing their incidence, though BRB 
expressed concern that the creation of an "independent panel" would be 
inappropriate. In order to respond to BRB's concern, we modified the 
language from "independent panel" to "group." We recognize BRB's 
judicial independence and authority and the need for the department to 
determine the reasons for remands in order to develop solutions to 
reduce them. The intent of our recommendation was not to assess or 
evaluate BRB's performance. 

The department generally disagreed with our recommendation to obtain 
information on how long it takes to resolve claims by developing a 
mechanism to track cases through the entire adjudication process and 
develop associated performance measures. OALJ and OWCP indicated in 
their individual responses that the current system does track the 
status of each claim and that the system is currently capable of 
tracking black lung claims throughout the appeals process. However, DOL 
does not currently track how long a claim remains in the adjudications 
process as one indicator of performance. We believe that DOL should 
leverage the capability of its current automated systems for routinely 
tracking such information and develop associated performance measures. 
Accordingly, we modified the wording of our recommendation to clarify 
this point. 

In its response, OWCP provided its own analysis of the time it takes to 
resolve black lung claims. However, we were unable to verify the 
accuracy of OWCP's analysis because DOL did not provide us with the 
data or the calculations used to derive this figure. Moreover, when we 
carried out our analysis of time to resolve claims, OWCP stressed the 
difficulty of conducting such an analysis and provided us with data, 
some of which we found unreliable. It was because of this difficulty 
and the lack of reliable data that we focused our analysis on the only 
subset of data for which we could reliably determine claim resolution 
times--those cases that were ultimately awarded benefits. It also made 
sense to examine these cases because: (1) they were the most likely to 
be litigated, (2) were, in our opinion, the best available proxy for 
how long a litigated claim could remain in the system and (3) because 
other types of claims, such as Trust Fund claims, are unlikely to be 
appealed. OWCP said it provided its analysis because ours used data 
that represented approximately 2 percent of black lung claims that were 
filed between 2001 and 2008, according to its data. OWCP did not 
provide us with information about how it derived the 2 percent figure, 
so we could not verify its accuracy. However, given that few miners who 
bring a claim prevail, and we examined those where a miner was awarded 
benefits, we recognize that the cases we examined represent a small 
part of all claims. In the report, we made clear that these cases were 
only a small subset of all cases and that processing times for these 
cases could not be generalized. Moreover, even though the claims we 
examined represent a minority of claims filed, they are part of the 
constituency that the Act sought to ensure would have recourse through 
the system. OWCP officials told us that they did not believe that a 
global measure of timeliness would improve its ability to measure 
performance or provide any other benefit. We disagree and believe that 
such a measure would add transparency that might ultimately improve 
DOL's processes. 

The department concurred with our recommendation to consider shortening 
the time required to schedule OALJ hearings. The OALJ supported the 
idea that video teleconferencing hearing technology could assist in 
expediting hearings in remote locations and used their comments to 
begin considering issues related to acquiring such technology. 

DOL also agreed with our recommendation to develop options for 
improving how doctors' opinions are documented. Though OWCP agreed with 
our recommendation, in their comments agency officials emphasized that 
any revisions to the form should include a "well-reasoned narrative" 
and allow less room for legal challenge from parties, not more. 
However, we believe that it is essential for DOL to collect and 
consider feedback from stakeholders in their revisions to the form. 

In response to our recommendation to collect more specific data for 
evaluating claimant access to legal and lay representation, DOL agreed 
to enhance their existing systems to begin to track when in the process 
a claimant is represented and whether the claimant is represented by an 
attorney or lay representative. OALJ, in its individual comments, 
disagreed with us on the extent to which claimant representation data 
is currently being captured by OALJ. However, we still maintain that 
the data provided by OALJ was not sufficiently reliable and that system 
enhancements--including the type of representation a claimant secured 
and at what point a claimant received that representation (e.g., 1 
month, 4 months, or 1 year after an appeal)--are required for DOL to 
develop a more accurate assessment of the level of claimant access to 
representation. 

DOL also stated that it would expand its existing medical provider 
database to include records of complaints in response to our 
recommendation to implement a feedback mechanism to record and track 
complaints from black lung program stakeholders about testing 
practices. Though they generally agreed with our recommendation, OWCP 
expressed concern that an increase in complaints could discourage even 
good doctors from remaining on DOL's list of approved medical 
providers. However, the purpose of our recommendation is not to 
penalize good doctors, but for DOL to begin to track complaints so that 
the agency can begin to understand the extent to which disability 
testing errors occur with DOL-approved doctors as well as mine company- 
hired doctors. 

DOL also agreed with our recommendation to evaluate the potential for 
proposing structural changes to the program to Congress. In response to 
our recommendation, both OWCP and OALJ used their comments to begin an 
examination of potential options for consideration for legislative 
changes. DOL also submitted technical changes to a draft of the report, 
which we incorporated into the report as appropriate. 

We are sending copies of this report to the Secretary of Labor, 
relevant congressional committees, and other interested parties. In 
addition, the report will be available at no charge on GAO's Web site 
at [hyperlink, http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact me at (202) 512-7215 or sherrilla@gao.gov. Contact points for 
our Offices of Congressional Relations and Public Affairs may be found 
on last page of this report. GAO staff who made key contributions to 
this report are listed in appendix III. 

Sincerely yours, 

Signed by: 

Andrew Sherrill: 

Director, Education, Workforce, and Income Security Issues: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

To gain insight in to the administration of the Black Lung Benefits 
Program, we examined (1) how long it takes to process and resolve black 
lung benefits claims; (2) at what rate and for what reasons black lung 
claims and appeals are denied by; and (3) what barriers, if any, 
confront miners or their survivors in pursuing their claims. 

To determine how long it takes to process black lung benefits claims, 
we collected data from the Office of Workers' Compensation Programs 
(OWCP) Automated Support Package claims tracking system, Office of 
Administrative Law Judges (OALJ) Case Tracking System, and the Benefits 
Review Board (BRB) Prime Appeals Tracking System. We assessed the 
reliability of OWCP, OALJ, and BRB data by (1) performing electronic 
testing of required data elements, (2) reviewing existing information 
about the data and the system that produced them, and (3) interviewing 
agency officials knowledgeable about the data. We also obtained 
processing data from performance reports from each of the three 
agencies. We determined that the data were sufficiently reliable for 
the purposes of this report. To establish criteria, the team compared 
current black lung claims and appeals processing times to the program's 
past performance and to agency and Office of Management and Budget 
performance goals. In addition to conducting data analysis, the team 
conducted interviews with officials from OWCP, OALJ, and BRB. 

To determine how long claims remain in the claims and appeals process, 
we collected data from the OWCP Automated Support Package claims 
tracking system. However, DOL does not track how long all claims remain 
in the claims and appeals process. DOL officials cited three primary 
reasons for not doing so: each body of the program maintains 
independence and does not share similar administrative; OWCP's claimant 
tracking system was designed, in part, to ensure that claimants are 
paid, not to determine how long claims remain in the process; and 
determining how long claims remain in the claims and appeals process 
can be challenging because it is difficult to determine what 
constitutes a claims resolution. For these reasons, we were only able 
to determine how long claims persisted in the claims and appeals 
process for one subset of claimants: miners for whom a responsible mine 
operator (RO) ultimately paid benefits.[Footnote 65] Although DOL 
provided data on other claimants, such as miners' widows who were 
awarded benefits, the data were not sufficiently reliable to determine 
the time to resolve these claims. We attempted to determine if newer 
claims were resolved at different rates than older claims and how two 
major regulatory changes to the program instituted in 1981 and 2001 
affected claim resolution times.[Footnote 66] However, our report 
focused on claims filed between January 19, 2001, and December 31, 
2008, because DOL officials said that these claims more accurately 
reflected how long claims persist in the current claims and appeals 
process. We determined the time that claims persisted in the process by 
measuring the date of the initial claim application to the date when a 
RO agreed to pay benefits.[Footnote 67] Our examination assessed two 
cohorts: 3,073 claims filed between January 2, 1982, and January 19, 
2001, and 763 claims filed between January 20, 2001, and December 31, 
2008. However, many claims filed between 2001 and 2008 are still in the 
claims and appeals process and hence could not be measured. Therefore, 
the time calculated to resolve these newer claims may not be fully 
representative of the time necessary to resolve the claims and appeals 
process. 

To determine the rates at which black lung claims and appeals are 
denied by DOL, we collected case tracking data from OWCP, OALJ, and 
BRB. OWCP was able to provide us with data tracking the number of 
denials, and we used these data to determine the OWCP denial rate. OALJ 
and BRB do not keep such data. To determine the OALJ and BRB denial 
rates, we reviewed all fiscal year 2008 OALJ and BRB case documents 
from a list generated from the agencies' respective case tracking 
systems. We calculated the number of denials and the total number of 
cases and then computed a denial rate. To determine the reasons that 
black lung claims were denied, we collected data from OWCP's case 
tracking system that captures the reasons for denials. Neither OALJ nor 
BRB track the ; therefore, to establish the reasons why black lung 
appeals were denied, we selected random probability samples of all 
black lung OALJ and BRB appeals cases decided and denied in fiscal year 
2008, recorded the results of this analysis into a data collection 
instrument, and projected the results onto the population. We sampled 
85 cases for OALJ and 76 cases for BRB. All percentage estimates in 
this report from these samples have a margin of error of plus or minus 
10 percentage points or less at the 95 percent confidence level, unless 
otherwise noted. In addition to our data analysis, the team also 
conducted interviews with officials from OWCP, OALJ, BRB, and the 
National Institute for Occupational Safety and Health (NIOSH). 

To understand the barriers that claimants face in pursuing federal 
black lung benefits, we conducted interviews with key officials and 
experts at DOL and other relevant federal agencies, representatives 
with national, regional, and local organizations that focus on issues 
or provide support services related to black lung disease and 
associated disability, as well as local stakeholders who are involved 
in federal black lung claims on behalf of miner-claimants. At DOL, we 
interviewed officials with OWCP, OALJ, and BRB and officials and 
experts with NIOSH, the Centers for Disease Control and Prevention, and 
the Health Resources and Services Administration. We interviewed 
representatives from national organizations, including the National 
Mining Association, the United Mine Workers of America, and the 
National Coalition of Black Lung and Respiratory Disease Clinics. At 
the regional and local levels, we interviewed representatives of 
federal grant-supported Black Lung Clinics, Washington and Lee 
University's black lung legal clinic, as well as miner-claimants and a 
range of local black lung stakeholders, including doctors, outreach 
workers, lawyers, and lay representatives. 

In our interviews, we collected information about factors that 
facilitate and hinder miners' pursuit of federal black lung benefits, 
including the availability and adequacy of relevant medical and legal 
services to miners. Our interviews with DOL officials specifically 
focused on the department's policies, procedures, and guidance for 
providing or assisting claimants with identifying such services, as 
well as their views on the effectiveness of such services in assisting 
claimants to develop sound evidence for their cases. Our interviews 
with miner-claimants and local black lung stakeholders, including Black 
Lung Clinic personnel, were organized as site visits to southern West 
Virginia and eastern Kentucky. These states and regions were selected 
because they have (1) high levels of miner death related to black lung 
disease,[Footnote 68] (2) a large volume of federal black lung 
claims,[Footnote 69] and (3) estimates of black lung-related resources 
and services.[Footnote 70] The site visits provided valuable 
information about the challenges miners face in pursuing federal black 
lung benefits from the perspective of claimants, as well as local black 
lung stakeholders who have worked closely with claimants. In addition, 
we reviewed relevant federal statutes, regulations, administrative 
cases, and court cases. 

We conducted this performance audit from October 2008 to October 2009 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient and appropriate evidence to provide a reasonable basis for 
our findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our findings 
and conclusions based on our audit objectives. 

[End of section] 

Appendix II: Comments from the Department of Labor: 

U.S. Department of Labor: 
Assistant Secretary for Employment Standards: 
Washington, D.C. 20210: 

September 30, 2009: 

Andrew Sherrill: 
Director: 
Education, Workforce, and Income Security Issues: 
United States Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548

Dear Director Sherrill:

Thank you for the opportunity to comment on your Draft Report No. GAO-
10-7, Black Lung Benefits Program: Administrative and Structural 
Changes Could Improve Miners' Ability to Pursue Claims. Although OWCP 
agrees with several of its recommendations, we have two major concerns. 
First, we believe that GAO's statements in the narrative underestimate 
the scope of the Automated Support Package (ASP) which is used by the 
Office of Workers' Compensation Programs' (OWCP) to record data about 
claims for black lung benefits. Claims are tracked throughout the 
claims process — including initial processing in OWCP, referrals to and 
from the Office of Administrative Law Judges (OAU), the Benefits Review 
Board (BRB), the US Circuit Courts of Appeals, and the US Supreme 
Court -- and ASP tracks the outcomes of the decisions rendered by those 
bodies. OWCP is the official repository of every claim filed under Part 
C of the Act, and as such it must maintain claims information to ensure 
that decisions on claims in all stages of the process are recorded and 
implemented. 

As illustrated by the chart below, OWCP can calculate the time interval 
between claims receipt and disposition. The same analytical ability can 
be applied to calculate time intervals between all stages in the claims 
resolution process, and is used extensively by OWCP to monitor its 
development and adjudication processes. GAO faults the OWCP system for 
the absence of detailed records of the representation of claimants by 
attorneys and lay representatives or a log of complaints about 
diagnostic physicians. OWCP acknowledges that its system does not now 
have the capability to perform these functions, but they can be added 
relatively easily to OWCP's records management system. But the OWCP 
data system does capture and track the status of each claim. 

Second, we are concerned that GAO has selected for its study a small 
subset of claimants that is unrepresentative of the overall population 
the Department actually serves. GAO has selected miners' claims filed 
between 2001 - 2008 for which a private party was potentially liable 
that have been ultimately awarded, a grouping which represents 
approximately 2% of the total claims filed during that period. The 
report states that this cohort of claims was selected because it 
represents the cases most likely to be litigated; because of that 
tendency, a significant portion of these claims took several years to 
reach an award. However, an analysis of all claims decided during that 
period shows that only-0.91% took over 6 years to be resolved. GAO's -
sample consisted of 763 claims out of 32,626 (not including the 
automatic continuation of benefits to dependent survivors of miners 
whose awarded claims were filed before January 1, 1982). A more 
representative graph, showing all claims filed in that period, is 
attached below: 

Figure: Time to Resolution of All Claims Filed 2001-2008: 

[Refer to PDF for image: Vertical bar graph] 

Years to Resolution: Less than 1; 
65.37%; 
25,978. 

Years to Resolution: 1-2; 
20.48%; 
8,139. 

Years to Resolution: 2-3; 
5.69%; 
2,261. 

Years to Resolution: 3-4; 
3.89%; 
1,545. 

Years to Resolution: 4-5; 
2.46%; 
979. 

Years to Resolution: 5-6; 
1.20%; 
478. 

Years to Resolution: More than 6; 
0.91%; 
362. 

[End of figure] 

Further, certain clarifications are in order. On the first page, GAO 
states that the Black Lung Program provides $250 million in benefits to 
40,000 beneficiaries. In fact, OWCP also administers Part B of the 
program, which distributed an additional $262 million in black lung 
benefits to over 33,000 disabled miners and their survivors in FY 2008. 
Those benefits are funded from the general revenues rather than the 
Trust Fund. On page 10, the phrase "claims can be appealed and modified 
up to a year after a decision" should read "modification may be 
requested up to one year after a decision denying benefits and may also 
be requested by any party up until one year after the last payment of 
benefits." The statement in the notes to Figure 2 that modification can 
be requested "for up to a year after initial payment" is also 
inaccurate and should be replaced. Footnote 2 fails to mention that 
Federal black lung benefits are only offset by state workers 
compensation or other disability benefits which are awarded for the 
same disease. Footnote 46 on page 19 reads "By regulation, there is an 
irrebuttable presumption of pneumoconiosis...." This should read "By 
statute, there is an irrebuttable presumption of total disability due 
to pneumoconiosis if X-rays of the miner's lungs show a spot or lesion 
that is greater than 1 centimeter in diameter. 30 U.S.C. §921 [Sec. 
411(c)(3)]." The regulation cited by GAO merely parallels the statutory 
language. Similarly, in footnote 11, which addresses the irrebuttable 
presumption, the phrase "present with" should be replaced with "have x-
ray evidence of." On the opening "Highlights" page, GAO states that the 
"regulations require that claimants prove that their condition is 
primarily caused by coal dust." In truth, a claimant need only 
establish that his lung disease is "significantly related to or 
substantially aggravated by" coal dust, a less stringent standard (20 
CFR §718.201(b). Footnote 3 appears to limit black lung to only two 
diseases, clinical pneumoconiosis and chronic obstructive pulmonary 
disease. The Act and regulations expansively define coal workers' 
pneumoconiosis as any chronic lung disease arising out of coal mine 
employment and its sequelae (30 U.S.C. §902(b); 20 C.F.R. § 
718.201(a)). Finally, footnote 10 incorrectly implies that if a miner 
has 10 years of coal mine employment any lung disease he has will be 
presumed to be due to that employment. This presumption applies only to 
miners suffering from clinical pneumoconiosis. 

Finally, we would like to address the Recommendations for Executive 
Action that specifically concern OWCP. 

Regarding recommendation 2), OWCP already tracks the times required to 
perform each of the stages of its claims development and adjudication 
processes, has established timeliness goals for them and continues to 
make significant progress in reducing the times required for their 
completion. The OALJ and BRB also have established goals for the 
performance of their roles in the hearings and appeals process. While 
we are able to track all portions, we do not believe that development 
of an overall global measure from receipt of claim to disposition would 
contribute more to the goal of timely disposition of claims than is 
currently being achieved through the efforts to complete each stage in 
the adjudication process in a more timely manner. 

Regarding 4), GAO believes that OWCP should "develop options for 
improving how doctor's opinions are documented...." OWCP agrees, and 
believes that GAO's recommendation for obtaining feedback from 
stakeholders has great merit. OWCP shares GAO's concern about how its 
diagnostic physicians document their diagnoses and opinions, and has 
made a strenuous effort to educate doctors on the need to ensure that 
their findings are supported by test results. OWCP district office and 
national office staff have worked closely with physicians when 
questions have been raised about the adequacy of their reports. The 
difficult question of how much explanation the physician should supply 
has been addressed in the recent Court of Appeals decision in Greene v. 
King James Coal Mining Inc.. 575 F.3d 628 (6th Cir. July 30, 2009), 
which found that a doctor's opinion that addresses all the elements 
necessary for entitlement is sufficient even if it is not persuasive. 
Because the regulations provide that totally disabling "legal 
pneumoconiosis" is compensable just as is "clinical pneumoconiosis," 
OWCP is apprehensive about not requiring the physician to write a well-
reasoned narrative that includes a determination of the miner's 
disability due to a chronic dust disease of the lungs that may not 
evince the classic radiological findings of pulmonary fibrosis. OWCP 
wants to ensure that any reporting form that evolves from such feedback 
allows less room for challenge, not more. 

Regarding recommendation 5), OWCP recognizes the need for more specific 
data concerning representation of claimants and is initiating 
enhancements to its case management system to capture additional 
information about representation, including a delineation of lay or 
attorney and beginning and ending dates of representation. 

Regarding recommendation 6), analysis of an ABG test requires 
sophisticated technical knowledge and equipment, and it is not 
reasonable to expect a claimant (or any patient) to be able to 
determine if the test was administered in compliance with the 
regulations (20 C.F.R. § 718.105.) OWCP is concerned that allegations 
against and investigations of DOL-authorized physicians, even if 
unfounded, may drive good doctors out of the program. Nevertheless, the 
National Office of OWCP/DCMWC does have a database of medical providers 
and will expand it to include a record of complaints from claimants and 
other parties reported to District Offices and the actions taken to 
resolve-them. 

In recommendation 7), GAO suggests the consideration of several changes 
to the Act, and OWCP will review all the GAO recommendations for 
potential legislative reform. OWCP notes that several of these 
recommendations, including alternate pay structures for attorneys and 
requiring complete evidentiary development at the initial phase of 
claims processing, were proposed in earlier black lung rulemakings. The 
Department carefully explained its ultimate conclusions in the preamble 
to the Final Rule that became effective on January 20, 2001. Also, 
Congress considered settlements and compensation for partial disability 
at the time of the original legislation and 'rejected it because it 
recognized the unequal bargaining power of ill, elderly miners when 
confronted with the resources of major mining and insurance companies. 
The purpose of the Act is to provide a lifetime of income maintenance 
to disabled-miners and their dependent survivors, and one of its unique 
features is the provision of interim benefits to eligible claimants 
during the pendency of prolonged challenges to their entitlement. Under 
state workers' compensation systems, lump-sum settlements and partial 
benefits are frequently exhausted within a short period (a typical 
example of a state award is compensation for 104 weeks), and may run 
out long before the miner's pneumoconiosis progresses to the point of 
total disability which would permit the lifetime award mandated by the 
Act. At the end of FY 2008 less than 9% of aWarded miners had any 
offsetting state workers' compensation award for the same disease. 
Although state workers' compensation benefits for total disability due 
to black lung disease are more generous than the Federal benefits, the 
laws of the all of the major coal producing states impose more 
stringent criteria for their receipt than does the Federal program. 

Thank you again for the opportunity to respond to this report. 

Sincerely,

Signed by: 

Shelby Hallmark: 
Acting Assistant Secretary: 

U.S. Department of Labor: 

Office of Administrative Law Judges: 
800 K Street, NW, Suite 400-N: 
Washington, DC 20001-8002: 
(202) 693-7300: 
(202) 693-7365 (FAX): 

September 30, 2009: 

Andrew Sherrill: 
Director
Education, Workforce, and Income Security Issues United States 
Government Accountability Office 441 G Street, NW
Washington, DC 20548: 

Dear Director Sherrill:

Thank you for the opportunity to comment on the Draft Report No. GAO-10-
7, Black Lung Benefits "Program: Administrative and Structural Changes 
Could Improve Miners' Ability to Pursue Claims. The efforts of you and 
your staff in preparing this important report are appreciated, and the 
Office of Administrative Law 'Judges (OALJ) welcomes an examination of 
the claims process under the Black Lung Benefits Act OALJ is in general 
agreement with the report's conclusions and recommendations, and offers 
only a few clarifications and comments. 

Comments on Recommendations for Executive Action: 

1. Development of mechanism for tracking claims throughout the 
adjudication: 

OALJ concurs with the Office of Workers' Compensation Programs (OWCP) 
comments on this recommendation. The existing computerized case 
tracking systems for OALJ, OWCP and the Benefits Review Board (BRB) are 
designed to meet unique needs of each of those agencies. OALJ 
recommends that any initiative for developing a method to track claims 
throughout each stage of the adjudication should focus on leveraging 
information from the existing systems, rather than creating a new 
system or consolidating the existing systems. 

2. Examination of feasibility of using video teleconferencing 
technology: 

OALJ concurs that video-hearing technology could assist in expediting 
the scheduling of hearings on those occasions when the hearing location 
cannot be easily combined with other cases on an Administrative Law 
Judge's docket. 

The Social Security Administration (SSA) has used video-hearing 
technology successfully in adjudications, and is presently expanding 
its use of that technology. OALJ has followed SSA's video-hearing 
program and those of other agencies and courts, examined video hearing 
technology at the College of William and Mary School of Law's Center 
for Legal and Court Technology, and conducted a few video hearings. 
Consequently, we recognize that video technology has the capacity under 
the proper circumstances for facilitating a timely and fair hearing, 
and would welcome the opportunity to do a more formal examination of 
whether video- hearings would assist the hearing process at the 
Department of Labor. 

OALJ's experience with black lung adjudications, however, suggests that 
video technology may be of limited value in the Black Lung Benefits 
Program Notably, a vast majority of black lung hearings are conducted 
in the coal mining regions of the United States and claims in these 
areas are scheduled regularly throughout the fiscal year On the other 
hand, the number of cases delayed because the hearing location is 
remote is relatively low. 

For hearings conducted in remote locations, OALJ is uncertain whether 
video conferencing technology will be available or easily accessible. 
Presently, less expensive alternatives have been employed by OALJ to 
adjudicate these claims. For example, Administrative Law Judges have 
conducted telephonic hearings on request of the parties. The 
transcripts from these hearings become part of the formal record. Also, 
on agreement of the parties, Administrative Law Judges have issued 
decisions "on the record." In such cases, the parties submit their 
medical evidence, affidavits, and arguments to the Administrative Law 
Judge who, in turn, issues a decision based on the documentation. 

3. Development of mechanism for evaluating claimants' access to legal 
and lay representation: 

The report concludes that some adjudicatory delays related to 
claimants' difficulty in finding legal representation could be better 
evaluated by implementing changes to the data management systems of 
OWCP, OALJ and the BRB. The reason for this recommendation appears to 
be GAO's finding that the Department's systems could not produce data 
in the format GAO needed for its report. For example, OALJ's existing 
system could not identify when in the process a representative was 
obtained by the claimant, or whether the representative was an attorney 
or a lay representative. 

Enhancements could be made to OALJ's case tracking system to record 
such information. We are not certain, however, how recording and 
reporting this information in a database would assist in remedying the 
problem of lack of representation.[Footnote 71] Rather, we suggest that 
this is already a well understood problem and that the focus should be 
examining whether incentives for attracting more attorneys and lay 
representatives to represent claimants is warranted. 

4. Requiring complete evidentiary development at the primary processing 
phase: 

The report recommends evaluation of "[n]ew and previous proposals... 
requiring complete evidentiary development at the primary claims 
processing phase and limiting the need for appeals." By law, black lung 
hearings must be conducted in accordance with the Administrative 
Procedure Act, which ensures full and fair adjudications of claims. 

Black lung hearings are adversarial. Employers and carriers, with rare 
exception, are represented by counsel and have resources to develop 
evidence. Consequently, closing the record at the OWCP level may have 
the unintended effect of lowering a claimant's opportunity to 
successfully prosecute his or her claim. Allowing evidentiary 
development by the parties at the OALJ level, and continuing to allow 
access to a formal hearing before an Administrative Law Judge, is 
essential to a fair hearing process. 

Further, as the system is presently constituted, it is unnecessary for 
employers or carriers to expend resources at the OWCP level if the 
Department-sponsored examination under 20 C.F.R. § 725.406 is 
unfavorable to the miner. Indeed, as noted in the report, "about 80 
percent of all claims decided by OWCP annually have no requests for 
further action."[Footnote 72] This high rate of resolutions at the 
informal OWCP level militates against the necessity of forcing parties 
to develop all medical evidence at that level. 

General Comments: 

1. Weighing the medical opinions in a claim: 

The draft report states that Administrative Law Judges rely on "non-
clinical" evidence such as physician credentials, length of depositions 
or reports, and level of sophistication of the medical reports in 
determining entitlement. 

To be clear, the "clinical" evidence in a claim, which includes chest x-
rays, autopsies or biopsies, CT-scans, and expert medical opinions 
based on a records review or examination of the miner dictate the 
outcome of a claim. In each and every decision issued by an 
Administrative Law Judge on the merits of a claim (as opposed to 
withdrawals, dismissals, or the like), the Administrative Law Judge 
specifically addresses each piece of "clinical" evidence submitted by 
all parties in compliance with the evidentiary limitations at 20 C.F.R. 
§ 725.414. 

As in other workers' compensation programs, claims arising in this 
program often involve a "battle of the experts," Therefore, 
Administrative Law Judges are required by law to consider a physician's 
credentials as well as how well-reasoned and well-documented a 
physician's opinion is compared to the credentials and opinions of 
other experts in the claim. This has nothing to do with the length of a 
report or deposition; rather, it has to do with whether the physician's 
rationale and conclusions are supported by testing, symptoms, work and 
smoking histories, and examination results. Opinions that are better 
supported and better reasoned by credentialed physicians will be 
accorded greater weight by the Administrative Law Judge. 

2. Delay tactics: 

The report states that some claimants and employers may have incentives 
to prolong the claims adjudication process. Parties should well note, 
however, that Administrative Law Judges have little tolerance for delay 
tactics that may be utilized by either party and they will deny 
requests for continuances that do not have a reasonable basis, or that 
have become excessive in number. 

Claimants who fail to cooperate during discovery in violation of an 
Administrative law judge's order, or who fail to attend their scheduled 
hearing, risk having their claims dismissed. Similarly, employers or 
carriers who violate an Administrative Law Judge's discovery orders, or 
fail to attend a scheduled hearing, risk having their evidence excluded 
and the claim decided on the basis of the Department-sponsored 
examination and evidence presented by the claimant. 

The draft report states that some mine operators deliberately wait to 
submit their medical evidence until after the miner has submitted 
evidence and, often, such evidence is submitted just prior to the 
hearing. Certain safeguards are built into the regulations to protect 
claimants from consequences of this conduct. First, in every claim set 
for hearing, the Administrative Law Judge issues a "Notice of Hearing" 
that sets forth specific deadlines for submitting evidence. If any 
party fails to comply with these deadlines, then the Administrative Law 
Judge may exclude the late evidence. Moreover, pursuant to 20 C.F.R.. § 
725.456(b)(3), the parties are required to exchange medical evidence at 
least 20 days prior to the date of the hearing. Failure to comply with 
this requirement may lead the Administrative Law Judge to exclude the 
proffered evidence. 

There are times, however, when scheduling a physical examination, or 
taking a physician's deposition is difficult due to time constraints on 
the parties and experts. By regulation, any party may depose its 
medical expert prior to the hearing, or have the expert testify at the 
hearing. At certain hearing locations, it is common for claimants to 
have physicians testify at the hearing in support of entitlement to 
benefits. In cases where evidence is submitted on the eve of the 
hearing or at the hearing, Administrative Law Judges may allow 
development of post-hearing evidence so that no party is disadvantaged, 
provided the Administrative Law Judge does not find improper motive in 
submission of the evidence. 

Again, thank you for the opportunity to comment on the draft report. If 
you require any further information, please contact us at anytime. 

Sincerely, 

Signed by: 

John M. Vittone: 
Chief Administrative Law Judge

U.S. Department of Labor: 

Benefits Review Board:  
P.O. Box 37601: 
Washington, DC 20013-7601: 

September 21, 2009: 

Andrew Sherrill: 
Director: 
Education, Workforce, and Income Issues: 
United States Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Dear Director Sherrill:

Thank you for the opportunity to comment on the Draft Report No. GAO-10-
7, Black Lung Benefits Program: Administrative and Structural Changes 
Could Improve Miners Ability to Pursue Claims. The effort of your 
staff, in addressing this important issue as well as the professional 
manner in which the information was acquired 'to review the complex 
statutory and regulatory claims process is appreciated. The Benefits 
Review Board (BRB) is in general agreement with the report's conclusion 
and BRB'recommendations and offers only a few comments for 
clarification purposes. 

Comments on BRB's Role in Adjudication of Miner's Claims: 

The report provides analysis that is incomplete with respect to the 
BRB's statutorily-created standard of review for final decisions on 
appeal from the Office of the Administrative Law Judges under the 
Longshore Act and the Black Lung Act. 

Pursuant to Section 21(b)(3), 33 U.S.C. §921(b)(3) of the Longshore and 
Harbor Workers' Compensation Act, as incorporated into the Black Lung 
Act by Section 422, 30 U.S.C.§932, the BRB is charged with reviewing 
the findings of fact and conclusions of law of administrative law 
judges (ALJs) in cases on appeal before it. If substantial evidence 
supports the findings of fact, and those findings of fact are 
consistent with ALJ applicable law, the ALJ's decision is affirmed; if 
not, the case is remanded to the ALI to correct the errors. 

The GAO report finds that approximately one-third (33%) of the BRB's 
decisions are remands and that the Board affirms denials in 46% of the 
ALJ's it considers. It follows that in approximately 20% of cases, the 
BRB affirms the ALJ's award of benefits. In addition, the Board 
reverses the ALJ's Decision and Order as a matter of law in 
approximately 1% of the cases it considers. In cases of affirmance, the 
BRB is affirming the findings of the whether an award or denial. To 
suggest that the Board remands cases for procedural matters is simply 
not true. Historic consistent appeal rates from the BRB to the U.S. 
Court of Appeals (10%) and affirmance of BRB decisions by the U.S. 
Court of Appeals (85-90%) confirm this. The BRB reviews ALJs' findings 
of fact for substantial evidence, and affirms them if they are rational 
and consistent with applicable law, in accordance with the 
Administrative Procedure Act. The BRB is a creature of statute with 
limited authority, as set forth above. 

Comments on Recommendation for Executive Action: 

Recommendation 1: BRB believes "creation of an independent panel" is 
inappropriate. The BRB is a statutorily created independent quasi-
judicial body with responsibility to review the cases appealed to it, 
pursuant to a statutorily created standard of review. 

However, if the purpose of the recommendation is to analyze the reasons 
for the remand of cases, GAO is advised that the Board maintains a 
complete library of its issued decisions, both on the web and in hard 
copy. A study of the reasons for remand is possible by reviewing those 
decisions and cataloguing the rationale provided in each case in 
support of remand. 

General Comments: 

Page 7- Figure 2. 
the second block down, under "BRB   in Figure 2," "In the Overview of 
the Black Lung Claims Adjudication Process," The Board's actions also 
include "Remanding." 

Page 10- Issue of Appeal / Modification. 

The report suggests that the time for filing both an appeal and a 
request for modification is one year. The time for filing an appeal and 
time for filing a request for modification are 30 or 60 days, and one 
year, respectively. An appeal and a modification request are two 
separate legal actions with respect to a case. The statutory authority 
to seek modification within one year of any action on a claim extends 
the timeline for resolution of a claim. 

Page 14- Remand: 

For the record, the Board notes its disagreement with comments 
attributable to "some ALJ's" regarding the purpose of BRB remands. 

Page 21 - Legal Representation: 

The report correctly expresses concern over the lack of legal 
representation for claimants pursuing claims. However, the report does 
not reflect any of the discussions held with the audit team regarding 
BRB's standard of review in an appeal where a claimant does not have an 
attorney. When an appeal is filed by a claimant without an attorney (a 
pro se appeal) the Board provides a complete substantial evidence 
review on all issues of fact and law pertinent to the ALJ's decision. 
In many cases this results in an ALJ denial of benefits being remanded 
for reconsideration of whether claimant is entitled benefits.

Sincerely, 

Signed by: 

Nancy S. Dolder:  
Chairman of the Board and Chief Administrative Appeals Judge: 

[End of section] 

Appendix III: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Andrew Sherrill, (202) 512-7215 or sherrilla@gao.gov: 

Acknowledgments: 

Patrick Dibattista (Assistant Director) and Michelle Bracy (analyst-in- 
charge) managed all aspects of the assignment. Edward Bodine, 
Christopher Lyons, and Brenda Muñoz made significant contributions to 
this report, in all aspects of the work. In addition, James Ashley, 
Cynthia Grant, and Jean McSween provided technical support in design 
and method; Doreen Feldman and Roger; James Bennett and Susan Bernstein 
assisted in the ; and Jeff Miller assisted with quality assurance. 

[End of section] 

(130892): 

[End of section] 

Footnotes: 

[1] Title IV of the Federal Coal Mine Health and Safety Act of 1969 
(Pub. L. No. 91-173), as amended, 30 U.S.C. § 901, et seq., commonly 
referred to as the Black Lung Benefits Act. 

[2] Monthly income payments can range from $616 to $1,232.60 and vary 
by the number of dependents claimed by a miner. Black lung income 
payment amounts may only be offset by other state workers' compensation 
or other federal disability payments, which are awarded for the same 
disease. 

[3] Black lung is a term that includes coal workers' pneumoconiosis and 
any other chronic respiratory or pulmonary impairment arising out of 
coal mine employment. 30 U.S.C.§ 902 (b). The statistics on black lung 
disease included in the background section of this report refer to CWP 
only. 

[4] These data were extracted from the National Occupational 
Respiratory Mortality System administered by the U.S. Department of 
Health and Human Services, Public Health Service, Centers for Disease 
Control and Prevention, and the Surveillance Branch of NIOSH's Division 
of Respiratory Disease Studies at [hyperlink, 
http://webappa.cdc.gov/ords/norms.html] (accessed, August 3, 2009). The 
Web site provides data on deaths from 1968 to 2005. 

[5] NIOSH collects information on the prevalence of black lung disease 
among underground coal miners through its Coal Workers' Health 
Surveillance Program and Enhanced Coal Workers' Health Surveillance 
Program. According to NIOSH, about 30 percent of underground coal 
miners participate in these black lung screening programs. 

[6] These percentages represent underground coal miners who 
participated in the Coal Workers' Health Surveillance Program. 

[7] According to the Department of Energy, the state of Wyoming mines 
the most coal, followed by West Virginia, Kentucky, Pennsylvania, and 
Texas. 

[8] These data reflect the number of coal mine workers in 2007. This 
number includes mine contractors and excludes office employees working 
at coal mines. 

[9] Benefits are also provided to eligible survivors of miners whose 
death was due to black lung disease. 20 C.F.R. § 718.205 (2009). 
Federal black lung benefits are offset by state workers' compensation 
benefits for the same disease. If state black lung benefits are less 
than federal black lung benefits, then the federal black lung program 
covers the difference. Social Security disability benefits are also 
reduced by the amount of black lung benefits received. 20 C.F.R. § 
725.535 (2009). 

[10] For a miner with 10 years of coal mine employment and who suffers 
from CWP, there is a rebuttable presumption that the miner's lung 
disease resulted from coal mine employment. 

[11] For miners who have X-ray evidence of lesions and/or scarring on 
their lungs greater than 1 centimeter, there is an irrebuttable 
presumption that the miner is totally disabled due to pneumoconiosis. 

[12] Claimant refers to the miner or the miner's eligible survivor. For 
the purposes of this report, we will use the word "claimant" to refer 
to both miners and the miners' eligible survivors, unless otherwise 
noted. 

[13] The trust fund pays the cost of black lung claims: (1) where the 
miner's last coal mine employment was before January 1, 1970; (2) where 
no responsible coal mine operator has been identified in claims where 
the miner's last coal employment was after December 31, 1969; or; or 
(3) where the responsible mine operator has defaulted on the payment of 
such benefits. 

[14] Until recently, the trust fund was in chronic deficit--expending 
more than what it collected in taxes--but the Emergency Economic 
Stabilization Act of 2008 (Pub. L. No. 110-343) provided an 
appropriation to repay a portion of the fund, and permitted DOL to 
restructure and retire the remaining debt. 

[15] OWCP, OALJ, and BRB also administer and review claims arising 
under other statutes and programs, including the Longshore and Harbor 
Workers' Compensation Act. 

[16] For ease of discussion, this report will refer to requests for an 
administrative law judge hearing as an "appeal." 

[17] 30 U.S.C.§ 923 and 20 C.F.R. § 725.406 (2009). 

[18] Currently, there are 177 doctors practicing in 111 different 
medical facilities on DOL's authorized list. 

[19] 20 C.F.R. § 725.409 (2009). 

[20] DOL regulations also direct how claims are to be handled in the 
event that the miner dies of pneumoconiosis before a claim is filed. 
See, e.g., 20 C.F.R. § 718.104 (c) and 20 C.F.R. § 718.205 (d). 

[21] 20 C.F.R. § 725.414 (2009). 

[22] Performance goals vary across OWCP, OALJ, and BRB because, 
according to DOL officials, the goals are independently established. 

[23] According to an independent study commissioned by DOL, in recent 
years OWCP has reduced the average time it takes to decide claims from 
323 days in FY 2004 to 250 days in 2006. 

[24] Using these data, our analysis could not determine whether or not 
further action had been requested within 1 year of the decision date. 
Under the program, any party (claimant or mine operator) may petition 
an OWCP district director for modification within 1 year of the last 
payment of benefits or denial of a claim. 20 C.F.R. § 725.310 (2009). 
Our examination did not determine whether or not a claim was modified 
after a RO agreed to pay benefits. 

[25] For additional information on the analysis conducted, see appendix 
I. 

[26] We also examined 3,073 claims submitted between 1982 and 2000, 
where a miner was ultimately awarded benefits by an RO. Mine companies 
agreed to pay benefits in 3 years or less for about 47 percent of 
claims, between 3 and 6 years for 34 percent, and between 6 and 20 or 
more years for roughly 19 percent of claims. However, using the data 
that DOL provided, we were not able to determine if, or how many, 
claims were subsequently modified. According to DOL officials, some 
claimants may have been receiving payments from an RO for several 
years, only then to have those payments challenged in court. For 
example, a claimant may have begun receiving payments from an RO in 
1982, but in 2002, the mine company filed a modification alleging that 
they should not have been designated as the company responsible for the 
payment of benefits. In such a case, under our analysis, it may appear 
that an RO did not agree to pay benefits for 20 years. 

[27] DOL officials said that awarded claims--where an RO is identified-
-are often appealed by mine companies. 

[28] DOL officials also said that the adjudication of all claims in the 
program was held up for nearly a year because of a judicial stay issued 
in 2001. Consequently, the processing and adjudication of claims in 
2001 was delayed due to circumstances beyond DOL's control. 65 Fed. 
Reg. 79920 (Dec. 20, 2000). 

[29] If an award is contested, claimants receive interim benefits while 
their claims are in the appeals process. 20 C.F.R. § 725.420 (2009). 
However, according to DOL officials, claimants who appeal denied claims 
typically do not receive interim benefits. 

[30] A claim may be appealed by a miner or a miner's eligible survivors 
(e.g., a surviving spouse or dependents), an RO, the insurance carrier, 
or by a district director. 20 C.F.R. § 725.360 (2009). According to DOL 
officials, a third-party administrator may also appeal a claim on 
behalf of a mine company. Third-party administrators manage the claims 
process for insurance carriers or self-insured employers by providing 
services such as claims administration, investigation, insurance 
negotiations, accounting, legal, and claim loss analysis. 

[31] DOL officials said that miners or their dependents occasionally 
appeal claims awarding benefits because of disputes over the size of 
the monetary award, the timing of payment, or other issues. 

[32] The percentage of claims appealed for fiscal year 2008 do not 
include claims that were abandoned, withdrawn, or where no RO was 
identified. 

[33] OALJ may also issue remands when the RO agrees to pay benefits 
without further litigation. In these instances, claims are sent back to 
OWCP for the implementation of an agreement to pay benefits. 

[34] BRB is not empowered to engage in an initial consideration of 
evidence or unrestricted review of a case brought before it. Pursuant 
to section 21(b)(3), 33 U.S.C. § 921(b)(3) of the Longshore and Harbor 
Workers' Compensation Act, as incorporated into the Black Lung Act by 
section 422, 30 U.S.C. § 932. BRB is authorized to review the findings 
of fact and conclusions of law of administrative law judges in cases on 
appeal before it, on which the decision or order appealed from was 
based, and such findings may be set aside only if they are not, in the 
judgment of the BRB, supported by substantial evidence in the record 
considered as a whole or in accordance with law. 20 C.F.R. § 802.301 
(2009). For example, in one case, the U.S. Court of Appeals for the 
Sixth Circuit held that in requiring the administrative law judge to re-
evaluate the evidence, the BRB had evaluated each fact and thus 
exceeded the narrow scope of review, which it is accorded under 20 
C.F.R. § 802.301 (2009). Campbell v. Consolidation Coal Co., 811 F.2d 
302 (6th Cir. 1987). 

[35] ICF International, Evaluation of the Efficiency and Effectiveness 
of the Black Lung Program (June 13, 2007). 

[36] OWCP officials noted that the reasons for remands to OWCP are well 
understood and primarily occur because claims require further d; 
therefore, no formal study was necessary for OWCP to focus on reducing 
this source of delays. 

[37] DOL officials said that it is not their practice to seek the 
repayment of interim benefits from the surviving family members of 
deceased miners ultimately denied benefits. 

[38] 62 Fed. Reg. 3338 (Jan. 22, 1997). 

[39] According to DOL, in fiscal year 2008, 43 percent of funds 
appropriated for administrative activities from the Black Lung 
Disability Trust Fund were provided to the Office of the Solicitor, 
BRB, and OALJ. 

[40] 65 Fed. Reg. 79920 (Dec. 20, 2000), effective January 19, 2001. 
According to officials, criticism centered on the following: (1) mine 
operators' costs to develop a defense for every claim were expensive 
and unnecessary, (2) limited opportunities to appeal may have violated 
some due process rights, and (3) unrepresented claimants may have been 
disadvantaged. Some officials at DOL also expressed concern that claims 
adjusters at OWCP may not be appropriately qualified to make decisions 
about the submission of evidence that would have been required under 
the proposal. 

[41] To conduct hearings, administrative law judges attempt to travel 
to locations convenient for claimants, typically within 75 miles of a 
claimant's residence. 

[42] OALJ also said that continuances are also commonly granted to 
develop additional medical evidence. 

[43] OALJ awarded claimant benefits in 23 percent of its decisions in 
fiscal year 2008 and remanded 13 percent. The remaining 11 percent of 
OALJ decisions were either withdrawn by parties, dismissed, or involved 
decisions that were not related to the awarding of claimant benefits. 

[44] The BRB does not deny or award claims but affirms, reverses, 
modifies, or vacates the OALJ decision to grant or deny benefits to 
claimants. 

[45] We estimated that other claims were denied because claimants were 
not able to prove total disability, were not able to prove coal mine 
employment, or did not follow procedures for preparing claims or 
submitting evidence. 

[46] By statute, there is an irrebuttable presumption of total 
disability due to pneumoconiosis if X-rays of a miner's lungs show a 
spot or lesion that is greater than 1 centimeter in diameter. 30 U.S.C. 
§ 921. 

[47] See 20 C.F.R. §§ 718.204(c) and 718.201 (2009). 

[48] 30 U.S.C. § 932 (a). 

[49] 33 U.S.C. § 933 (g) (1). 

[50] A reasonable attorney fee, subject to department approval, may be 
collected from the RO that is ultimately found liable for the payment 
of benefits or, in a case in which there is no RO who is liable for the 
payment of benefits, from the Black Lung Disability Trust Fund. See 30 
U.S.C. § 932(a). (This section of the Black Lung Benefits Act 
incorporates 33 U.S.C. § 928(a), the attorney fee provision of the 
Longshore and Harbor Workers' Compensation Act.) 

[51] DOL regulations state that a representative can be an attorney or 
a nonattorney. 20 C.F.R. § 725.363 (2009). 

[52] The regulation states that the fees payable include reasonable 
fees for necessary services performed prior to the creation of the 
adversarial relationship. 20 C.F.R. § 725.367 (2009). 

[53] DOL regulations state that OALJ does not have authority to appoint 
counsel or refer claimants to attorneys. 29 C.F.R. § 18.35 (2009). 

[54] According to BRB, when an appeal is filed by a claimant without an 
attorney to BRB (a pro se appeal), the Board provides a complete 
substantial evidence review on all issues of fact and law pertinent to 
the administrative law judge's decision. In many cases, this results in 
an administrative law judge's denial of benefits being remanded for 
reconsideration of whether the claimant is entitled to benefits. 

[55] DOL regulations permit interest to be assessed for attorney's 
fees, computed from the date on which the attorney fee was awarded 
through the date the RO paid the attorney's fee. 20 C.F.R. § 725.608(c) 
(2009). 

[56] If benefits are awarded, attorney's fees are paid by the mine 
company or the Black Lung Disability Trust Fund. 20 C.F.R. §725.366 
(2009). 

[57] 20 C.F.R. §725.365 (2009). 

[58] We did not independently assess the reliability of these cost 
estimates. 

[59] HRSA officials could not provide us with information about grantee 
expenditures on lay representation because the program does not collect 
this information. 

[60] To ensure that claimants have access to physicians who are well 
qualified to conduct black lung diagnostic testing and complete 
pulmonary evaluations, DOL issued regulations in 2001 requiring OWCP to 
create and maintain an official, publicly available list of department- 
approved medical providers. See 20 C.F.R. § 725.406 (2009). 

[61] For DOL's medical evaluation form, see CM-988: Medical History and 
Examination for Coal Mine Workers' Pneumoconiosis (OMB No.: 1215-0090). 

[62] For DOL's supplemental guidelines, see CM-988A: Instructions for 
Black Lung Physical Examination. 

[63] Blood gas tests measure the ability of the lungs to oxygenate 
blood and are an indication of the level of a claimant's impairment. 

[64] 20 C.F.R. § 718.105 (2009). 

[65] Given the challenges noted above, we did not attempt to determine 
how long claims that were denied remained in the process, even though 
they may represent a significant proportion of claims. We also did not 
focus on claims where a miner was awarded benefits from the Black Lung 
Disability Trust Fund because, according to officials, many of these 
claims are awarded at OWCP, and it is unlikely that these awards would 
be appealed. 

[66] 45 Fed. Reg. 13678 (Feb. 29, 1980) and 65 Fed. Reg. 79920 (Dec. 
20, 2000), respectively. 

[67] Claims resolved in 1 year or less included 138 claims that 
recorded "zero" as the number of days in which a RO agreed to pay 
benefits. DOL officials said that this is an artifact of their claims 
process. Specifically, in some cases, a mine company agrees to pay 
shortly before or after OWCP's initial decision, and for administrative 
reasons, a zero is recorded. However, for 24 of these claims, the 
number of days in which a RO agreed to pay benefits appeared unreliable 
(e.g., when an agreement to pay was dated several years prior to the 
claim application date). These claims were not omitted from our 
analysis. 

[68] Based on 2009 data derived from NIOSH's National Occupational 
Respiratory Mortality System. 

[69] Based on 2009 data derived from OWCP. 

[70] Based on the opinions of national experts and federal agency 
officials. 

[71] According to OALJ's Case 'Tracking System, approximately 80 
percent of claimants are represented at the OALJ level. As noted in the 
report, Administrative Law Judges actively encourage claimants to 
obtain representation. Although Administrative Law Judges are 
prohibited by regulation from appointing counsel or referring a 
claimant to an attorney, OALJ's public website contains a list of black 
lung clinics, OWCP offices, and a law school clinical program that 
claimants may contact for assistance. 

[72] See Draft Report at p. 12. 

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