Labor Department unveils changes to aid miners in black lung benefits cases

IMPACT: Initiatives 'a step in the right direction,' senator says

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Coal miners sick with black lung disease should receive higher-quality medical reports and have a better chance to win benefits cases following a series of reforms announced Monday by the U.S. Department of Labor.

The initiatives, effective immediately, represent an attempt by the Labor Department to create a more level playing field for coal miners navigating a byzantine federal benefits system that often favors coal companies and the lawyers and doctors they enlist.

The changes come months after the publication of the yearlong Center for Public Integrity investigation Breathless and Burdened, produced in partnership with ABC News, which revealed how doctors and lawyers, working on behalf of coal companies, have helped defeat the claims of miners sick and dying of black lung.

The new measures include a pilot program that would provide some miners with an additional medical report, instructions to government lawyers across the country to intervene in some appeals and increased training for doctors and government officials.

“We really think this is going to create more balance and fairness,” said Gary Steinberg, the acting director of the Office of Workers’ Compensation Programs, which oversees the black lung benefits program. “Our goal is that it will result in an increase in the number of awards because of an increased quality in the reports and quality in the decisions.”

Sen. Jay Rockefeller, D-W.Va., called the Labor Department’s initiatives “a step in the right direction,” and Rep. George Miller, D-Calif., said they were "a good first step toward leveling the playing field.” Both noted, however, that only some miners qualify for them and called for further action.

Sen. Robert Casey, D-Pa., said: "While this is certainly an encouraging development, it’s far from what’s needed to ensure these miners and their families receive justice. I’ll continue to push the Department of Labor to make the necessary reforms to get this right.”

A spokesman for the National Mining Association declined to comment.

One program announced Monday addresses the first step in the process at which a Labor Department claims examiner evaluates the evidence of disease and issues a decision. Miners are entitled to a medical exam by a doctor from an approved list, paid for by a government trust fund. Claimants then must submit to an exam by a doctor of the coal company’s choosing.

These reports by the company’s doctors often challenge the initial exam and suggest other possible causes for a miner’s health problems. Under the pilot program announced Monday, the doctor who first saw the miner for the Labor Department will have the opportunity to review and, if warranted, rebut the company doctor’s report. The provision would apply only in some cases, though — those in which the claimant worked for at least 15 years in the mines and initially was found eligible for benefits based on the first exam.

This new step should provide department officials the information they need to make a more informed decision, Steinberg said. “We hope that we will see fewer appeals, and, if there is an appeal, that fewer of our decisions would be overturned,” he said.

Now, companies appeal virtually all awards to an administrative law judge. This is often when mining companies develop further medical evidence to challenge a claim.

To address cases at this level, Solicitor of Labor Patricia Smith issued a memo to the offices of all regional solicitors, the government attorneys who can intervene in black lung cases. Often, a miner is unable to find a lawyer because the system offers few incentives for attorneys to take a case.

Now, in those cases, involving a miner with at least 15 years of experience who won a claims case at the initial stage, a government lawyer will get involved.

Smith directed the lawyers to go back to the doctor who performed the initial Labor Department-sponsored exam and get a supplementary opinion. Attorneys are supposed to make sure the doctors address the key evidence presented by the company.

Another obstacle miners face at this stage in the process is a backlog of cases before administrative law judges, who also juggle disputes involving everything from longshore workers to whistle-blowers to immigration. In recent years, the number of judges has dwindled as the number of claims has skyrocketed. Last week, six Democratic lawmakers sent a letter to President Obama imploring him to provide resources in the coming budget to ease the logjam.

Labor Department officials on Monday also announced measures to help doctors and government officials better navigate the thorny medical issues that arise in many benefits cases. These include increased training for the doctors who perform exams for the department and the officials who evaluate evidence and issue decisions.

Department officials also said they had reached an agreement to consult regularly with the National Institute for Occupational Safety and Health, a research agency within the Centers for Disease Control and Prevention. As medical trends emerge, government officials will look to the agency, known as NIOSH, for advice on the latest science.

“What we’re trying to do is strengthen the quality of the evidence in the system without statutory or regulatory changes, just what we can do within the system,” Smith said.

“Regulatory changes are not off the table," Smith said, "but the department has a full regulatory agenda and we’d have to figure out how to fit something in.”

The department also has worked with members of Congress who are drafting reform legislation, Smith said. Lawmakers, including Rockefeller and Casey, have been working on a bill to strengthen the benefits system, using the Center’s series as a guide.

“I firmly believe that we must address the more systematic barriers that too many miners face when applying for and litigating claims under the Black Lung program,” Rockefeller said in a statement Monday. “For that reason, I am continuing to work to make it easier for our miners to get the benefits they need and so obviously deserve.

“Our work is not over by a long shot.”