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- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Health Benefits, Retirement Standards, and Workers’ Compensation: Black Lung Compensation
Updated: September 2009 Title IV, Federal Mine Safety and Health Act of 1977, as
amended Who is CoveredThe Black Lung Benefits Act (BLBA) is administered by the Office of Workers’ Compensation Programs (OWCP). The Act provides for monthly payments to and medical treatment for coal miners totally disabled from pneumoconiosis (black lung disease) arising from employment in or around the nation's coal mines. The BLBA also provides for monthly payments to certain survivors of miners who died due to pneumoconiosis. Current and former coal miners (including certain coal transportation and coal mine construction workers who were exposed to coal mine dust) and their surviving dependents, including surviving spouses, orphaned children, and totally dependent parents, brothers, and sisters, may file claims for black lung benefits. Individual coal mine operators are liable for the payment of benefits to miners/employees. For purposes of determining responsibility for paying benefits, a coal mine operator includes: any owner, lessee, or other person who operates, controls, or supervises a coal mine or preparation plant; or any independent contractor performing services or construction at a mine; or certain entities involved in coal transportation. Basic Provisions/RequirementsMonthly benefits for eligible miners and their survivors are based on a percentage of the monthly salary of a GS-2, step 1 federal government employee. A chart of benefit rates can be found at the Department of Labor's Black Lung Home Page(http://www.dol.gov/owcp/dcmwc/regs/compliance/blbene.htm). Benefit payments may be augmented for up to three dependents. Benefit payments are reduced by the amounts received for pneumoconiosis under state workers' compensation awards and, in some cases, by excess earnings. Benefits rates are adjusted periodically according to the percentage increase of federal pay rates. Medical payments are limited to the treatment of conditions directly related to black lung disease, and only totally disabled former miners can qualify for this benefit. The BLBA covers certain medical, surgical, and other expenses, such as hospital and nursing care, rehabilitation services, and drug and equipment charges. Each coal mine operator is required to pay an excise tax on coal sold. The current tax rate is $1.10 per ton for underground-mined coal and $.55 for surface-mined coal, subject to a cap of 4.4 percent of the sales price. Proceeds from this tax finance the Black Lung Disability Trust Fund, which pays the cost of administering the BLBA and, in certain cases, benefits to eligible claimants. The Trust Fund pays the cost of black lung claims: where the miner’s last coal mine employment was before January 1, 1970; or where no responsible coal mine operator has been identified in claims where the miner’s last coal employment was after December 31, 1969; or where the responsible coal mine operator has defaulted on the payment of such benefits. Coal mine operators (other than transportation and construction employers) must secure payment of benefits for which they are liable either by qualifying as a self-insurer or by obtaining insurance through a commercial insurance carrier or a state agency. Operators must obtain approval from the Department of Labor to become self-insurers. To qualify, they must have been in the business of coal mining for at least three years, demonstrate the ability to service black lung claims and agree to service claims in a timely manner, meet minimum asset requirements, and obtain an indemnity bond or post other security to secure payment of benefits, among other things. Operators whose applications to self-insure are denied may request reconsideration of that decision. When operators obtain commercial insurance, their obligations with regard to the payment of benefits and the provision of medical treatment are binding on the insurance carriers. Coal mine operators are required to begin paying benefits within 30 days of a final determination of their liability for the benefits. Where payment is made from the Black Lung Disability Trust Fund pending appeal of an award, the liable operator must reimburse the Trust Fund for the benefits paid plus interest if the award is upheld. Employee RightsIf an employee, or his or her survivor, or an employer disagrees with a claim determination by the Division of Coal Mine Workers' Compensation(http://www.dol.gov/owcp/dcmwc), that party may request a formal hearing before an Administrative Law Judge. The Administrative Law Judge’s decision may be appealed to the Benefits Review Board, and the Benefits Review Board's decision may be appealed to the U.S. Court of Appeals. Recordkeeping, Reporting, Notices and PostersNotices and PostersThere are no federal workplace poster or notice requirements under the Black Lung Benefits Act. RecordkeepingThere are recordkeeping requirements for employers under the Black Lung Benefits Act. Employers that pay benefits are required to keep a receipt for each payment made. A cancelled check is sufficient proof of payment. The employer must retain each receipt for at least five years after the receipt was executed and must produce the receipts for inspection upon the request of OWCP. Any employer permitted to self-insure its liabilities under the Act may be required to submit reports to OWCP concerning its self-insurance status. The employer is expected to maintain any books of account, records or other papers that would verify any financial statement or other information contained in such a report. At the request of OWCP, the employer must produce such material for inspection or examination. The failure to permit such inspection may result in a revocation of the employer’s self-insured status. ReportingThere are reporting requirements for employers, insurance carriers, medical providers, representative payees, and claimants under the Black Lung Benefits Act. Employers. The Black Lung Benefits Act imposes numerous reporting obligations. Many of these are related to the Act's requirement that coal mine operators (except for coal mine construction or transportation employers) secure the payment of benefits through self-insurance or commercial insurance. A coal mine operator permitted to self-insure must submit any report that OWCP might request, such as, for example, a report addressing the employer’s financial condition. The failure to submit any requested report could result in revocation of the employer’s self-insurance status. If an award of benefits is issued against an employer that has neither self-insured nor obtained commercial insurance, OWCP may require the employer to secure the payment of benefits by posting a bond, cash, or negotiable securities. In such a case, the employer is required to submit to OWCP, within 30 days, proof that it has complied with the request. Any employer ordered to pay benefits under the Act must report to OWCP the first payment of benefits and any change (such as suspension, reduction, or increase) in benefits payments thereafter. Employers should use Form CM 908(http://www.dol.gov/owcp/regs/compliance/cm-908.pdf) to report the termination or suspension of benefits and a reduction or increase in benefit amounts. In addition, within 16 days after the final payment of benefits, the employer must file a report with OWCP indicating that fact and listing the name of the beneficiary, the total amount of benefits paid and any other information required by OWCP. OWCP may also require other reports it deems necessary for the efficient administration of the Act. The failure or refusal to file any such report subjects the employer to a civil penalty of up to $550 for each such failure or refusal. If an employer is ordered to pay benefits to a miner, it must designate a person with decision making authority regarding medical benefits with whom the miner, the miner's providers and OWCP may communicate. The employer must also notify the miner, the miner's providers and OWCP of its designation. OWCP may require the employer or carrier to provide reports concerning the necessity, character or sufficiency of any medical care provided to the miner. Insurance Carriers. A commercial insurance carrier is required to report each insurance policy or endorsement issued, cancelled or renewed by the carrier to an operator. The reports must be sent by the carrier's home office, except that the carrier may authorize its agency or agencies to make such reports. Separate reports are required for each operator covered by a particular policy that is issued or renewed. Notice of cancellation must be given 30 days prior to the date the cancellation is to take effect. Carriers that are liable for benefits on behalf of an employer are required to report to OWCP immediately after making the initial benefit payment and after suspending the payment of benefits. Carriers are also required to provide any additional reports as OWCP may require for the efficient administration of the Act. Medical Providers. Physicians or medical facilities that provide care for a miner-beneficiary are required, within 30 days of the first medical or surgical treatment, to provide a report of such treatment to the employer and OWCP. In addition, a medical provider may be required to submit additional reports concerning the necessity, character and sufficiency of medical care provided to the miner. The failure to provide any requested report may result in the denial of payment for medical services rendered. Claimants. Individuals who are entitled to benefits are required to report to OWCP any circumstances that could affect their entitlement to benefits or the amount of benefits received. Claimants should use Form CM-929(http://www.dol.gov/owcp/regs/compliance/cm-929.pdf) to report this information. In addition, if a miner-beneficiary returns to coal mining or other comparable and gainful work, the miner must notify both the employer and OWCP. Representative Payees. If benefits are paid to a representative payee, that individual may be required to submit evidence to OWCP periodically addressing his or her continuing relationship to the claimant, responsibility for care of the claimant, or authority to accept payment. The representative payee may also be required to account for the use of all benefit payments certified to the payee. Representative payees should use Forms CM-929p(http://www.dol.gov/owcp/regs/compliance/cm-929P.pdf), CM 623(http://www.dol.gov/owcp/regs/compliance/cm-623.pdf), or CM 623s(http://www.dol.gov/owcp/regs/compliance/cm-623s.pdf) to report this information. The failure to submit any such evidence or report will result in the termination of the individual’s status as representative payee. Penalties/SanctionsThe Department of Labor may suspend or revoke the authority to self-insure due to an operator's failure to comply with the BLBA and its regulations, the insolvency of the operator’s surety on an indemnity bond, or impairment of the operator's financial responsibility. Revocation of the authority to self-insure or the failure to obtain insurance does not relieve operators of liability for the payment of benefits and the provision of medical treatment. Operators who fail to secure insurance may be subject to a civil money penalty of $1,000 for each day there is no insurance in effect. A lien may be placed against the property of operators who fail to reimburse the Trust Fund for benefits paid on the operator’s behalf. The Department of Labor may also seek an injunction in U.S. District Court to ensure that an operator’s obligations under the BLBA are met and to prevent future noncompliance. Operators are also subject to payment of interest to the claimant, if benefit payments are not timely made, and to the Trust Fund, on benefits paid on the operator’s behalf for which the operator is determined to be liable. Moreover, operators who fail to pay benefits within 10 days after payments become due, may be assessed an additional 20 percent of the amount due, which is payable to the claimant. Operators who knowingly conceal or dispose of any property to avoid the payment of benefits under the Act may be guilty of a misdemeanor and, if convicted, subject to a fine of $1,000, imprisonment for up to one year, or both. Relation to State, Local, and Other Federal LawsFederal 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, the federal black lung program covers the difference. Social Security disability benefits are also reduced by the amount of black lung benefits received. Compliance Assistance AvailableTo obtain additional information, contact the nearest Black Lung District Office(http://www.dol.gov/owcp/dcmwc/blcontac.htm), visit the DCMWC’s Black Lung Home Page(http://www.dol.gov/owcp/dcmwc) or contact the DCMWC by phone at 1-202-693-0047 or by fax at 1-202-693-1398. The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Black Lung Benefits Act. Compliance assistance related to the Act, including a Compliance Guide to the BLBA(http://www.dol.gov/owcp/dcmwc/regs/compliance/blbenact.htm), fact sheets, forms(http://www.dol.gov/owcp/dcmwc/regs/compliance/blforms.htm), Questions and Answers (PDF)(http://www.dol.gov/owcp/dcmwc/regs/compliance/cm-6.pdf), and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-blba.htm) Web page. DOL ContactsOffice of Workers' Compensation Programs (OWCP),
Division of Coal Mine
Workers' Compensation(http://www.dol.gov/owcp/dcmwc/blcontac.htm)
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