Black Lung Benefits Program: Administrative and Structural Changes Could Improve Miners' Ability to Pursue Claims

DOL conducted data analyses in February 2010 and March 2011 on the subsequent history of cases remanded by the Benefits Review Board (BRB). The data will be used as a starting point for internal DOL discussions to examine the causes and results of remands and to identify potential measures for reducing their number and the delay they generate, without compromising the integrity and fairness of the claims process.

The Office of Workers' Compensation Programs (OWCP) is using its Automated Support Package to produce ad hoc reports on the approximately twenty percent of claims that are disputed and proceed beyond its jurisdiction, and is perfecting the parameters of those reports to measure timeliness and outcomes. These reports track the claims that proceed to the Office of Administrative Law Judges (OALJ), the Benefits Review Board (BRB) and the Courts of Appeals; identify the parties who requested further review; and specify the additional time that elapses at each stage of the process. This reporting system enables OWCP to track the amount of time it takes claims to proceed through the entire adjudication process. Additionally, OWCP, OALJ and BRB have each developed the recommended performance measures by establishing goals for the timeliness of their dispositions.

In FY11, the Office of Administrative Law Judges (OALJ) purchased a videoconferencing monitor and related equipment, and appointed a Project Manager for its videoconferencing hearings. The Project Manager is charged with overseeing the technical aspects of OALJ's videoconferencing hearings and coordinating availability and utility of off-site videoconferencing facilities at remote hearing locations. On September 9, 2011, OALJ management and the Project Manager participated in videoconferencing training at the U.S. District Court for the District of Columbia. OALJ has conducted a few videoconferencing hearings in certain remote locations through use of facilities at United States District Courthouses, and OALJ used videoconferencing for a docket of black lung claims in Big Stone Gap, Virginia in October 2011.

In March, 2010, the Office of Workers' Compensation Programs (OWCP) requested feedback from a selected group of experienced diagnostic physicians and from experienced attorneys seeking to improve this reporting form. After receiving and analyzing that feedback, OWCP redesigned the physical examination reporting forms to focus more specifically on the nature and extent of a claimant's pulmonary disease and disability. The new reporting package was submitted to OMB for review and was approved on October 31, 2011 (OMB 1240-0023.) The forms were formatted and tested for use by the Division of Coal Mine Workers' Compensation (DCMWC) correspondence system and website. The form was posted on the web site after OMB approval. In addition, the program has conducted extensive training of diagnostic providers, including presentations at workshops sponsored by the National Coalition of Black Lung and Respiratory Disease Clinics in June 2010 and June 2011 in West Virginia (WV). DCMWC officials also visited physicians in Birmingham, AL in November 2011, Centerville Clinics in Pennsylvania in 2010, Zanesville, OH in 2011, and Kayenta AZ in July 2011. A presentation of a panel discussion by pulmonary experts about reasoned medical opinions has been distributed widely to physicians on DVD. The program also presented a conferencing session for lay representatives, clinics, and physicians in WV on the medical and non-medical evidence required for an award of benefits.

The Office of Workers' Compensation Programs (OWCP) instituted changes to its Automated Support Package that enables OWCP to track claims with either attorney or lay representation. OWCP can determine the starting and ending dates of representation, and whether the representative is an attorney or non-attorney. These changes are in effect for all claims in which a written declaration or notice of representation is received (and, in the case of a lay representative, representation is approved by the District Director). Instructions for data entry were provided to all claims personnel in December 2009. The Office of Administrative Law Judges (OALJ) records in its database those cases in which the claimant has representation and the Chief ALJ issued a memorandum to all ALJs in May 2010 reminding them to ensure that representation information is entered into the database. 78% of claimants at the ALJ level are represented by attorneys or lay representatives. The Benefits Review Board (BRB) is also able to identify those appeals in which the claimant is represented.

OWCP has expanded its ability to collect, record and analyze complaints regarding medical evaluations, including blood gas testing. This improved complaint tracking system, initiated in June 2009, allows OWCP to identify individual providers who have generated complaints about blood gas testing and other testing practices. OWCP also sends a guide to black lung medical testing procedures to the miner with every test authorization. This guide, expanded and improved after our recommendation was issued, explains the test requirements and procedures in clear language, allowing miners to understand what they should expect when undergoing testing.

The Department of Labor has made preliminary studies of the costs and benefits of allowing compensation for partial disability as suggested by GAO. OWCP would be willing to study the inclusion of settlements as part of a broad compensation scheme that would not preclude a miner from seeking additional compensation as his disease progressed and that would not preclude an eligible survivor from receiving benefits following the death of the miner. OWCP has found very little support for amending the Act to include either settlements or partial disability compensation. OWCP has instituted administrative measures to improve medical documentation of disability and disease. For example, OWCP has revised its physical examination reporting form. Additionally, amendments to the Black Lung Benefits Act (BLBA) made by the Patient Protection and Affordable Care Act (PPACA) greatly ease the evidentiary burdens faced by some claimants in establishing entitlement to benefits. These amendments apply to claims filed after January 1, 2005, provided the claim is pending on or after the PPACA's March 23, 2010 enactment date. The amendments reinstate a presumption of total disability due to pneumoconiosis for miners who worked at least fifteen years in qualifying coal mine employment and who have a totally disabling respiratory or pulmonary impairment. In such claims, miners no longer have to prove the existence of pneumoconiosis. For survivors' claims in which a miner with fifteen years employment had been diagnosed with a totally disabling lung impairment, the amendment reinstates a presumption that death was caused by pneumoconiosis. The PPACA also reinstated a BLBA provision that awards benefits to the survivors of miners who had been awarded benefits on a lifetime claim. Eligible survivors no longer have the burden of establishing that the miner's death was caused or hastened by pneumoconiosis. OWCP continues to monitor the effect of the legislation on approval rates as claims go through the adjudication process. The Department proposed requiring that evidentiary development be completed while a claim is pending before the District Director in its 1997 regulatory proposal. This proposal was ultimately rejected because of objections from both the claimant and the employer/insurer communities. Until the Department has evidence that those groups have changed their positions, the Department believes further pursuit of that option does not appear to be appropriate.