|November 4, 2008|
Office of Workers' Compensation Programs (OWCP)
Division of Coal Mine Workers' Compensation (DCMWC)
Compliance Guide to the Black Lung
On December 20, 2000, the Department of Labor published a final rule amending the regulations implementing the Black Lung Benefits Act. This compliance guide explains some of the procedures that will be followed under the amended rules for processing black lung benefit claims filed after January 19, 2001. The final rule and an extensive preamble discussion are published at 65 Federal Register 79920-80107 (Dec. 20, 2000).
The Black Lung Benefits Act provides monthly payments and medical benefits to coal miners totally disabled from pneumoconiosis (black lung disease) arising from their employment in or around the nation's coal mines. The Act also provides monthly benefits to a miner's dependent survivors. Unless the miner was awarded benefits pursuant to a claim filed before 1982, a survivor must establish that pneumoconiosis was a substantially contributing cause of the miner's death to be entitled to benefits.
The program provides two types of medical services related to black lung disease: diagnostic testing for all miner-claimants to determine the presence or absence of black lung disease and the degree of associated disability; and, for miners entitled to monthly benefits, medical coverage for treatment of black lung disease and disability. Diagnostic testing includes a chest x-ray, pulmonary function study (breathing test), arterial blood gas study, and a physical examination. Medical coverage includes (but is not limited to) costs for prescription drugs, office visits, and hospitalizations. Also provided, with specific approval, are items of durable medical equipment, such as hospital beds, home oxygen, and nebulizers; outpatient pulmonary rehabilitation therapy; and home nursing visits.
Present and former coal miners (including certain transportation and construction workers who were exposed to coal mine dust) and their surviving dependents, including surviving spouses, orphaned children, adult disabled children, and fully dependent parents, brothers and sisters, may file claims.
The last coal mine operator for whom the miner worked for a cumulative period of at least one year is usually responsible for the payment of benefits; however, the Black Lung Disability Trust Fund pays benefits when:
In 2001, the basic monthly benefit for a totally disabled miner or the surviving spouse of the miner is $500.50 per month. This may be increased to a maximum of $1001.00 per month for claimants with three or more qualified dependents. Because the Act links benefit rates to Federal employee salary rates, benefit levels are usually adjusted annually in accordance with changes in the Federal employee pay schedules.
The Black Lung Benefits Act requires each coal mine operator to secure the payment of its benefits liability by either qualifying as a self-insurer or by purchasing and maintaining in force a commercial insurance contract (including a policy or contract procured from a State agency). Any coal mine operator who is required to secure the payment of benefits and who fails to do so is subject to a civil penalty of up to $1,000 for each day of noncompliance. In addition, the president, treasurer and secretary of an uninsured coal mine operator that is a corporation may be liable for the payment of benefits owed to former employees. Coal transportation and coal mine construction employers who are not also coal mine operators do not have to secure benefit payments in advance; however, once an employee is awarded benefits, the Department may require the employer to secure a bond or otherwise guarantee payment.
Information about self-insurance and a list of insurers providing coverage under the Black Lung Benefits Act is available from the Responsible Operator Section in the National Office, 202-693-0034.
The following summary of claims development and adjudication procedures apply to all claims filed after January 19, 2001. Different requirements may apply to claims filed before that date.
Development of Evidence
When a District Office receives a claim for benefits, the District Director (DD), or a claims examiner working under the DD's auspices, obtains a complete history of the miner's employment from the claimant. The DD then gathers other evidence regarding the nature and duration of the miner's employment, and any other information necessary to resolve the claim.
If the claim is filed by or on behalf of a miner, the DD authorizes a complete pulmonary evaluation paid for by the Black Lung Disability Trust Fund. The miner must select a physician or medical facility to conduct the evaluation from a list provided by the DD. The list includes physicians and facilities located in the miner's state of residence and contiguous states who have been authorized to conduct complete pulmonary evaluations. (Physicians and facilities that wish to become authorized providers may contact the National Office at:
U.S. Department of Labor
If the claim is filed by or on behalf of a survivor, the DD obtains whatever medical evidence is necessary and available to evaluate the claim.
In the event the DD determines that the evidence supports an award and that there is no coal mine operator responsible for the payment of benefits, the DD will issue a proposed decision and order awarding benefits payable by the Trust Fund. If the DD determines the evidence does not support an award and that there is no operator responsible for the payment of benefits, the DD will issue a Schedule for the Submission of Additional Evidence (see below). In that instance, the DD will be entitled to exercise the same rights as a responsible operator, subject to certain limitations. In all cases where an operator may be liable for the payment of benefits, however, the DD will issue a Notice of Claim.
Notice of Claim
If, after developing evidence related to the miner's employment history, the DD identifies one or more operators who may be liable for the payment of benefits should they be awarded, the DD sends a Notice of Claim to those operators and their insurers of record. These operators are called "potentially liable operators." The Notice advises the operators and insurers of the existence of the claim and that they have been made parties to the claim. The DD sends a copy of the claimant's application and all of the evidence the DD has developed pertaining to the miner's employment history along with the Notice.
An operator who receives a Notice of Claim must respond within 30 days of receipt of the Notice and indicate its intent to accept or contest its identification as a potentially liable operator. The operator must send a copy of its response to the claimant. An operator who contests its potential liability must state the precise nature of its disagreement with its designation by accepting or denying that:
If a notified operator fails to respond within 30 days, it will not be allowed to contest its liability for the payment of benefits in later proceedings on any of these five grounds (although it will retain the right to assert that another operator is liable for the particular claim involved). Within 90 days of the date on which it receives the Notice of Claim, an operator may submit documentary evidence in support of its position. Documentary evidence relevant to the five grounds listed above must be submitted to the DD; if it has not been submitted to the DD, such evidence will not be admitted in any further proceedings absent a showing of exceptional circumstances. The 30 and 90-day response periods may be extended for good cause shown if an extension request is filed with the DD before the response period expires.
Schedule for the Submission of Additional Evidence
Once the DD completes his development of medical evidence and receives responses and evidence regarding liability from potentially liable operators, the DD will issue a "Schedule for the Submission of Additional Evidence." The DD will send a copy of the Schedule, together with a copy of the evidence developed, to the claimant and all designated potentially liable operators.
The Schedule will include: 1) a summary of the results of the initial complete pulmonary evaluation or, for survivors' claims, a summary of the medical evidence developed; 2) the DD's preliminary analysis of the medical evidence; 3) the DD's designation of the "responsible operator" (selected from those earlier given notice of the claim as potentially liable operators) liable for the payment of benefits; and 4) a notice to the claimant and the designated responsible operator that they have a right to submit evidence on the claimant's entitlement to benefits and the responsible operator's liability for them.
The responsible operator named in the Schedule must respond to the schedule within 30 days of issuance (subject to extension for good cause shown) indicating whether it agrees or disagrees with its designation as the responsible operator liable for the payment of benefits. If it does not timely respond, the responsible operator will be deemed to have accepted liability should benefits be awarded, and to have waived its right to challenge its liability in any further proceedings. On the merits of the claim, the responsible operator may file a statement accepting the claimant's entitlement to benefits; otherwise, the responsible operator will be deemed to have contested the claim.
The Schedule will give the claimant and the responsible operator no less than 60 days to submit additional evidence on both the liability and entitlement issues, and will allow an additional 30 days within which to respond to evidence the other party submits. These time periods may be extended for good cause if an extension request is filed with the DD before the time period expires.
Development of Evidence by the Claimant and the Responsible Operator
During the time periods set out in the Schedule for the submission of affirmative and rebuttal evidence, the responsible operator may submit evidence to the DD demonstrating it is not the potentially liable operator that most recently employed the miner. Other parties as well may submit evidence regarding the designated responsible operator's liability. There is no limitation on the amount of evidence regarding liability a party may submit. A copy of any documentary evidence submitted must be mailed to all other parties. Absent extraordinary circumstances, no documentary evidence pertaining to this aspect of the liability determination shall be admitted in any further proceeding conducted with respect to the claim unless it is submitted to the DD in compliance with the schedule for the submission of additional evidence.
Documentary medical evidence is treated differently. A party may submit medical evidence either to the DD in compliance with the Schedule, or to the Administrative Law Judge (ALJ) up to 20 days before the hearing (or even thereafter if good cause is shown). The amount of documentary medical evidence a party may submit is limited. Each side may submit two chest x-ray interpretations, the results of two pulmonary function tests, two arterial blood gas studies and two medical reports as its affirmative case. Each side may also submit one autopsy report and one report of each biopsy. In addition, each party may submit one piece of evidence in rebuttal of each piece of evidence submitted by the opposing party. Finally, in a case in which rebuttal evidence has been submitted, the party that originally submitted the evidence subjected to rebuttal may submit one additional statement to rehabilitate its evidence. Documentary medical evidence exceeding these limits will not be admitted absent a showing of good cause. Notwithstanding these limitations, any record of a miner's hospitalization or medical treatment for a respiratory or pulmonary or related disease may be submitted. Each party must serve a copy of any documentary medical evidence it submits on all other parties. If the claimant is unrepresented, the DD will mail copies of the claimant's evidence to the other parties.
At the end of the period for submission of additional evidence, the DD will review the claim on the basis of all evidence submitted. The DD may notify additional operators of their potential liability, issue a new schedule for the submission of additional evidence identifying another potentially liable operator as the responsible operator, schedule an informal conference, issue a proposed Decision and Order, or take any other action that the DD considers appropriate. If the DD chooses to designate a different operator as the responsible operator, he will suspend development of medical evidence until the operator issue is resolved.
The DD may determine that an informal conference is not warranted in a particular case. In that instance, he generally will issue a proposed Decision and Order at the conclusion of the period allowed for submission of evidence (see discussion below). The DD may, however, conduct an informal conference in any claim where it appears that a conference will assist in the voluntary resolution of any issue raised with respect to the claim. The DD must hold the conference no later than 90 days after the conclusion of the period for submission of additional evidence unless a party, based on good cause shown, obtains an extension. A conference may be held only if all parties have representation. A coal mine operator, which is either self-insured or covered by a commercial insurance policy for the claim in question, is considered represented. The unexcused failure of any party to appear at an informal conference will be grounds for the imposition of sanctions: if the claimant does not appear, the claim may be denied as abandoned; if the operator does not appear, it will be deemed to have waived its right to contest its liability and, within the DD's discretion, to have waived its right to contest the claimant's eligibility. At the end of the conference, the DD will prepare, and all parties will sign, a stipulation of contested and uncontested issues. Within 20 days after the termination of all conference proceedings, the DD will prepare and send to the parties a proposed Decision and Order.
Proposed Decision and Order
A proposed Decision and Order is a document, generally issued by the DD after the evidentiary development of the claim is completed and all contested issues (if any) are joined, which attempts to resolve the claim on the basis of all of the evidence. The proposed Decision and Order will set forth the DD's determination of the merits of the claim - an award or a denial of benefits. It will also contain the DD's final designation of the responsible operator liable for the payment of benefits, and will dismiss all other potentially liable operators. The proposed Decision and Order will advise the parties of their right to request a formal hearing before the Department of Labor's Office of Administrative Law Judges.
If a party requests a hearing before the DD concludes his adjudication of the claim, and the DD's later determination is adverse to that party, the DD will forward the claim to the Office of Administrative Law Judges unless the party affirmatively states that it no longer desires a hearing. Otherwise, within 30 days after the date the DD issues the proposed Decision and Order, any party may request a revision of the proposed Decision and Order or a hearing. Such requests must be made in writing to the DD and served on all other parties. If any party requests a hearing within the 30-day period, the DD will refer the claim to the Office of Administrative Law Judges. If no party responds to a proposed Decision and Order, it will become final and effective upon the expiration of the applicable 30-day period.
ALJ Hearing and Review
Once a case is forwarded to the Office of Administrative Law Judges for hearing, it is assigned to an Administrative Law Judge (ALJ). In most cases, the ALJ will hold an oral hearing, receive testimony and other evidence in accordance with all applicable rules, and render a written decision on the claim. The decision will address the relevant issues in dispute between the parties and adjudicate the claim. If the ALJ awards benefits, the responsible coal mine operator must begin paying monthly benefits to the claimant, and pay any retroactive benefits to which the claimant is entitled.
Any party dissatisfied with the ALJ's decision has 30 days from the date the decision is filed with OWCP either to ask the ALJ to reconsider it or to appeal to the Department of Labor's Benefits Review Board. The Board reviews the ALJ's decision to determine whether it is supported by substantial evidence and in accordance with law, and issues a written decision disposing of the appeal. Any party adversely affected or aggrieved by the Board's decision may, within 60 days of its issuance, petition the court of appeals where the miner was exposed to coal mine dust for review of the Board's decision. Finally, a party may seek review of the court's decision in the Supreme Court. If the award becomes final, the responsible coal mine operator must reimburse the Trust Fund for any benefits paid to the claimant on an interim basis.
Once a decision becomes final, there are no rights to further proceedings with respect to the claim except for filing a request for modification. At any time before one year after the decision becomes final, or within one year of the last payment of benefits, a party may request modification of the Decision and Order based upon a change in conditions or because of a mistake in a determination of fact.
A claimant whose previous claim was finally denied more than one year earlier may file an additional (subsequent) claim for benefits. The subsequent claim will be processed and adjudicated in the same manner as an initial claim, except that the claim will be denied unless the claimant demonstrates that one of the applicable conditions of entitlement has changed since the date on which the order denying the prior claim became final.
For more information contact the nearest Department of Labor Black Lung district office at the toll-free 800 number listed below.
Following is a list of Black Lung offices and the claims jurisdictions they serve:
U.S. Department of Labor