[Senate Hearing 113-860]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-860

  COAL MINERS' STRUGGLE FOR JUSTICE: HOW UNETHICAL LEGAL AND MEDICAL 
         PRACTICES STACK THE DECK AGAINST BLACK LUNG CLAIMANTS

=======================================================================

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                                   ON

        EXAMINING COAL MINERS, FOCUSING ON BLACK LUNG CLAIMANTS

                               __________

                             JULY 22, 2014

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                               


      Available via the World Wide Web: http://www.gpo.gov/fdsys/
      
      
 
                    U.S. GOVERNMENT PUBLISHING OFFICE                    
24-452 PDF                  WASHINGTON : 2017                     
          
----------------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, 
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). 
E-mail, [email protected]. 
                 


          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland			LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington			MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont			RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania		JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina			RAND PAUL, Kentucky
AL FRANKEN, Minnesota				ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado			PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island		LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin			MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut		TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
                      Derek Miller, Staff Director

        Lauren McFerran, Deputy Staff Director and Chief Counsel

               David P. Cleary, Republican Staff Director

                                 ______

            Subcommittee on Employment and Workplace Safety

              ROBERT P. CASEY, JR., Pennsylvania, Chairman

PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
AL FRANKEN, Minnesota                RAND PAUL, Kentucky
MICHAEL F. BENNET, Colorado          ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     TIM SCOTT, South Carolina
TAMMY BALDWIN, Wisconsin             LAMAR ALEXANDER, Tennessee (ex 
TOM HARKIN, Iowa (ex officio)        officio)
                                       

                       Larry Smar, Staff Director

                 Tommy Nyguyen, Minority Staff Director

                                  (ii)

                            C O N T E N T S

                               __________

                               STATEMENTS

                         TUESDAY, JULY 22, 2014

                                                                   Page

                           Committee Members

Casey, Hon. Robert P., Jr., Chairman, Subcommittee on Employment 
  and Workplace Safety, opening statement........................     1
    Prepared statement...........................................     3
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  opening statement..............................................     6
Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................    21
    Prepared statement...........................................    23

                           Witnesses--Panel I

Lu, Christopher P., Deputy Secretary, Department of Labor, 
  Washington, DC; accompanied by Patricia Smith, Solicitor, 
  Department of Labor, Washington, DC............................     7
    Prepared statement...........................................     8
Howard, John, M.D., Director, National Institute for Occupational 
  Safety and Health, Washington, DC..............................    14
    Prepared statement...........................................    15

                          Witnesses--Panel II

Cline, John, Attorney, Piney View, WV............................    27
    Prepared statement...........................................    28
Parker, John E. (Jack), M.D., Pulmonary Section Chief, West 
  Virginia University Department of Medicine, Morgantown, WV.....    32
    Prepared statement...........................................    33
Bailey, Robert, Jr., Former Coal Mine Worker, Princeton, WV......    38
    Prepared statement...........................................    39
Briscoe, Robert, WCP, Principal and Senior Consultant, Milliman, 
  New York, NY...................................................    41
    Prepared statement...........................................    42

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Rockefeller..........................................    51
    Senator Manchin..............................................    54
    Letters:
        President Barack Obama from the Congress of the United 
          States, Washington, DC.................................    55
        George E. Mehalchick, Esq., Lenahan and Dempsey, 
          Scranton, PA...........................................    57
        Paul E. Frampton, Bowles Rice LLP, Attorneys at Law, 
          Charleston, WV.........................................    58
        Arthur Traynor, Associate General Counsel, United Mine 
          Workers of America, Triangle, VA (UMWA)................    59

                                 (iii)

  

 
  COAL MINERS' STRUGGLE FOR JUSTICE: HOW UNETHICAL LEGAL AND MEDICAL 
         PRACTICES STACK THE DECK AGAINST BLACK LUNG CLAIMANTS

                              ----------                              


                         TUESDAY, JULY 22, 2014

                                       U.S. Senate,
           Subcommittee on Employment and Workplace Safety,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:45 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Robert P. 
Casey, Jr., chairman of the subcommittee, presiding.
    Present: Senators Casey and Isakson.

                   Opening Statement of Senator Casey

    Senator Casey. Good morning, everyone. The subcommittee 
hearing will come to order. I want to thank the witnesses who 
are with us. I want to thank our ranking member, Senator 
Isakson, for his presence here today and his work to help 
schedule this hearing and to ask questions of our witnesses.
    Today the Subcommittee on Employment and Workplace Safety 
convenes to focus on an issue that doesn't get a lot of 
attention. In particular, we're here today to talk about and to 
focus on the alleged actions of certain coal industry doctors 
and the alleged actions of certain lawyers as well as others in 
attempting to deny benefits to miners who are suffering from 
the debilitating effects of black lung disease. Black lung 
disease is caused through the inhalation of coal mine dust, and 
it leads to severe breathing complications and is found mostly 
in central Appalachia, in particular, the States of 
Pennsylvania, West Virginia, Kentucky, and Virginia.
    According to the Department of Labor, black lung disease 
contributed to the deaths of over 75,000 miners from 1968 to 
2007. That averages to over 1,900 miner deaths per year over a 
39-year period. That's an extraordinary number. I'm not sure 
how widely reported that number is. While overall rates have 
dropped since 1968, research conducted by the National 
Institute for Occupational Safety and Health shows that there 
has been a spike since the early 1990s, particularly in the 
most severe, fast progressing type of black lung disease, which 
has increasingly affected younger miners.
    Last October, the Center for Public Integrity and ABC News 
released findings from a year-long investigation examining how 
coal industry doctors and lawyers helped defeat and delay 
benefit claims from the growing number of miners suffering from 
black lung disease and their grieving survivors, who have been 
consistently denied or delayed justice from a system that seems 
increasingly stacked against them. The investigation 
specifically highlighted the alleged medical practices of Dr. 
Paul Wheeler, who failed to find a single case of complicated 
black lung in over 1,500 cases he reviewed since 2000.
    Without objection, I would like to enter the CPI, the 
Center for Public Integrity, report entitled ``Breathless and 
Burdened,'' into the record.

    [Editor's Note: Due to the high cost of printing, 
previously published materials are not reprinted in the hearing 
record. The above referenced document may be found at https://
cloudfront-files-1.publicintegrity.org/documents/pdfs/
CPI+Breathless+and+
Burdened.pdf.]

    Following this report, as well as inquiries from my office 
as well as other Members of Congress, the Department of Labor 
has taken steps to address the issues identified in the black 
lung benefit process. The Department announced that it will 
issue a new rule to address disclosures that lawyers 
representing coal companies have withheld medical evidence from 
miners in black lung benefit cases.
    The Department also issued a field memo instructing staff 
to no longer credit evidence presented by Dr. Wheeler. And, 
finally, the Department has sent letters to black lung 
claimants whose cases involved medical evidence from Dr. 
Wheeler and whose benefits were subsequently denied, explaining 
the process for reopening their cases.
    I am pleased to work with the Department of Labor in its 
efforts to begin leveling the playing field for black lung 
claimants. But there's still more that needs to be done, 
particularly in relation to the growing backlog of cases at the 
Department's Office of Administrative Law Judges.
    I am deeply concerned that miners who have been afflicted 
have to wait years for their cases to be decided. According to 
data from the Department of Labor, black lung claimants are 
waiting an average of 429 days just for their cases to be 
assigned, just to be assigned to an administrative law judge 
and an additional 90 to 120 days after assignment before their 
cases are heard in court. That's over 520 days for claimants, 
520 days. Many claimants too disabled to work are just starting 
to make the case that they deserve benefits.
    One of my constituents from Glen Lyon, PA, not far from my 
hometown of Scranton--where we have a coal mining tradition and 
history, after finding out about the hearing--contacted my 
office to describe her five-plus year struggle as a widow 
fighting for black lung survivor benefits following her 
husband's death in 2008. I'm entering into the record a letter 
detailing her long and tortured pursuit of justice.
    [The information referred to may be found in additional 
material.]
    Justice delayed, as we often have said, is justice denied, 
and in this case, for coal miners suffering from the 
debilitating effects of black lung disease. Our Nation's 
hardworking miners and their families deserve much, much, 
better than that.
    I called this hearing today so we can do the following 
three things. No. 1 is highlighting the struggles that black 
lung claimants face in seeking and finding justice, basic 
justice, particularly how legal and medical practices place an 
undue and often insurmountable burden on miners in the black 
lung claims process. No. 2, we're going to review the actions 
taken by the Administration to help level the playing field for 
claimants and determine what additional steps need to be taken. 
And third is to discuss the growing backlog of cases at the 
Department and explore actions that can be taken by the 
Administration and Congress to begin reducing and ultimately 
eliminating the lengthy wait times that miners face in seeking 
the benefits that they deserve and that they desperately need.
    I'm also entering into the record statements from Senators 
Rockefeller and Harkin, who have been great champions for coal 
mine workers during their nearly 60 years combined service in 
the U.S. Senate.
    [The prepared statements of Senator Harkin and Senator 
Rockefeller can be found in additional material.]
    We will miss their leadership in addressing the important 
issues facing hardworking miners when both of these Senators 
retire at the end of this year. But they aren't finished yet. 
They're still working on these issues, and I'm currently 
working with Senators Rockefeller, Harkin, Manchin, as well as 
Representative George Miller, to update Senator Rockefeller's 
Black Lung Health Improvements Act of 2013. We're exploring 
ways to tackle the issues highlighted in the Center for Public 
Integrity and ABC News investigation, and we'll incorporate any 
additional information or ideas brought forward in this 
hearing.
    I look forward to the testimony and ensuing discussion from 
our two witness panels. With that, I'll turn it over to Senator 
Isakson for his opening remarks.
    [The prepared statement of Senator Casey follows:]

                  Prepared Statement of Senator Casey

    This hearing of the Subcommittee on Employment and 
Workplace Safety will come to order.
    We are here today to talk about the real and disheartening 
effects caused by the actions of certain coal industry doctors 
and lawyers in attempting to deny benefits to miners who are 
suffering from the debilitating effects of black lung disease.
    Black lung disease is caused through the inhalation of coal 
mine dust. The accumulation of dust particles in the lungs 
ultimately leads to severe breathing complications, such as 
shortness of breath and moderate to severe airway obstruction, 
decreasing quality of life. The disease is diagnosed through 
chest x-rays and breathing tests and is found mostly in central 
Appalachia, particularly in Pennsylvania, West Virginia, 
Kentucky, and Virginia.
    According to the Department of Labor, which administers the 
black lung benefits program, black lung disease contributed to 
the deaths of over 75,000 miners from 1968 to 2007--that 
averages to over 1,900 miner deaths per year over the 39 year 
period. And while overall rates have dropped since 1968, 
research conducted by the National Institute for Occupational 
Safety and Health shows that there has been a spike since the 
early 1990s, particularly in the more severe, fast-progressing 
type of the disease, which has increasingly affected young 
miners.
    Last October, the Center for Public Integrity and ABC News 
released findings from a yearlong investigation examining how 
coal industry doctors and lawyers have helped defeat and delay 
benefits claims from the growing number of miners suffering 
from black lung disease and their grieving survivors, who have 
been consistently denied or delayed justice from a system that 
seems increasingly stacked against them.
    This CPI and ABC News investigation found that lawyers at 
Jackson Kelly PLLC, a firm that advocates on behalf of coal 
companies, often withheld medical evidence in black lung 
benefits cases if it supported a miner's claim. According to 
the Department of Labor, less than one-third of miners have a 
lawyer when first filing their claims and this practice of 
withholding medical evidence further prevents a miner from 
having a fair shot at presenting his or her case. Withholding 
evidence also prevents a miner from knowing exactly when black 
lung disease was first diagnosed, which is important for 
determining if and when back pay is warranted.
    The investigation also highlighted the unethical medical 
practices of Dr. Paul Wheeler, of Johns Hopkins, who failed to 
find a single case of complicated black lung in the over 1,500 
cases he reviewed since 2000, even though x-ray readings from 
other B Reader certified doctors (including one of the 
witnesses at this hearing, Dr. Parker), biopsies, or autopsies 
have repeatedly proven him wrong. Dr. Wheeler's questionable 
methods led to the denial of benefits to many deserving 
claimants, who were then forced to suffer through this terrible 
disease without the financial support that they and their 
families so desperately needed.
    Johns Hopkins, to its credit, quickly shut down its black 
lung clinic when news of Dr. Wheeler's unethical practices 
surfaced, pending an investigation into the matter.
    Following the October 2013 CPI and ABC News report, as well 
as inquiries from myself and other Members of Congress, the 
Department of Labor has taken steps to address the issues 
identified in the black lung benefits process.
    The Department announced that it will issue a new rule to 
address disclosures that lawyers representing coal companies 
have withheld medical evidence from miners in black lung 
benefits cases. The Department also issued a field memo 
instructing staff to no longer credit evidence presented by Dr. 
Wheeler. And finally, the Department has sent letters to black 
lung claimants, whose cases involved medical evidence from Dr. 
Wheeler and whose benefits were subsequently denied, explaining 
the process for reopening their cases.
    I am pleased with the Department of Labor's efforts to 
begin leveling the playing field for black lung claimants, but 
there is still more that needs to be done--particularly in 
relation to the growing backlog of cases at the Department's 
Office of Administrative Law Judges.
    I am deeply concerned that sick miners have to wait years 
for their cases to be decided. According to data from the 
Department of Labor, black lung claimants are waiting an 
average of 429 days just for their cases to be assigned to an 
administrative law judge and an additional 90-120 days after 
assignment before their cases are heard in court. That's over 
520 days for claimants, many too disabled to work, just to 
start making the case that they deserve benefits.
    I, along with other Members, sent a letter to the President 
in February asking him to make the reduction of backlogged 
cases a priority in his fiscal year 2015 budget request. He 
responded with a $2.9 million increase in funding, which is a 
step in the right direction, but does not go far enough--even 
with this level of funding, the backlog would continue to grow, 
from just over 11,000 cases in fiscal year 2013 to almost 
15,000 cases by the end of fiscal year 2015, based on data from 
the Department of Labor. Based on these figures, my staff 
estimates that it will take about $10 million more than what 
the President requested to not only stop the backlog from 
growing, but to actually begin reducing the number of 
backlogged cases.
    I encourage Members on the Appropriations Committee to work 
with me to look into this issue and to come up with a way to 
find, what amounts to a very small amount of funds in relation 
to the overall budget, but an amount that could have an 
enormously positive impact on this overwhelmed program and for 
the sick miners who rely on it.
    One of my constituents from Glen Lyon, PA, not far from my 
hometown of Scranton, after finding out about this hearing, 
contacted my office to describe her 5-plus year struggle as a 
widow fighting for black lung survivor benefits following her 
husband's death in 2008. I am entering a letter detailing her 
long and tortured pursuit of justice into the record.
    Justice delayed is often justice denied for coal miners 
suffering the debilitating effects of Black Lung disease. Our 
Nation's hard-working miners and their families deserve much 
better than that.
    I called this hearing today so that we can do the following 
three things:

     Highlight the struggles that black lung claimants 
face in seeking and finding justice--particularly how legal and 
medical practices place an undue and often insurmountable 
burden on miners in the black lung claims process.
     Review the actions taken by the Administration to 
help level the playing field for black lung claimants and 
determine what additional steps need to be taken.
     Discuss the growing backlog of cases at the 
Department of Labor's Office of Administrative Law Judges and 
explore actions that can be taken by the Administration and 
Congress to begin reducing and, ultimately, eliminate the 
lengthy wait times that miners face in seeking the benefits 
that they deserve and so desperately need.

    I am also entering into the record statements from Senators 
Rockefeller and Harkin, who have been great champions for coal 
mine workers during their nearly 60 combined years in the U.S. 
Senate. We will all miss their leadership on addressing the 
important issues facing hard working miners when they retire at 
the end of the year.
    But they aren't finished just yet--I am currently working 
with Senators Rockefeller, Harkin, Manchin, and Representative 
George Miller to update Senator Rockefeller's Black Lung Health 
Improvements Act of 2013. We are exploring ways to tackle the 
issues highlighted in the CPI and ABC News investigation and 
will also incorporate any additional information or ideas 
brought forward in this hearing.
    I look forward to the testimony and ensuing discussion from 
our two witness panels. With that I'll turn it over to Senator 
Isakson for his opening remarks.

                  Opening Statement of Senator Isakson

    Senator Isakson. Thank you, Mr. Chairman, for calling this 
hearing on a critical subject. The Black Lung Compensation 
Program is critical to those who work in the mining industry 
for workers' compensation, and it's absolutely our 
responsibility to see to it that the information is accurate 
and that the program has great integrity.
    Understanding that we have three votes at 10:45 and 
understanding the stars of this show are our witnesses rather 
than me, I'll ask unanimous consent that my entire statement be 
entered into the record and turn it over to the chairman to 
introduce our guests.
    [The prepared statement of Senator Isakson was not 
available at time of print.]
    Senator Casey. Senator Isakson, thank you very much.
    We are joined by Senator Harkin, and he missed only by 
seconds my commendation of his service in the Senate, 
especially as it relates to miners. We're grateful that he's 
here with us.
    First, I'll introduce our first panel, and then we'll get 
right to the testimony. I would urge the witnesses to keep--
because of what Senator Isakson referred to, our votes--keep 
your statements to 5 minutes, and, of course, your full 
statements will be entered into the record.
    First, Chris Lu was sworn in as the Deputy Secretary of the 
U.S. Department of Labor on April 4th of this year, where he 
serves as the chief operating officer for a 17,000 employee 
organization that works to create greater opportunities for all 
Americans. Previously, he held many governmental positions, 
including White House Cabinet Secretary and Assistant to the 
President, Legislative Director and Acting Chief of Staff for 
then Senator Obama. Prior to working in the Senate and the 
White House, Mr. Lu worked for 8 years with Representative 
Henry Waxman as the Deputy Chief Counsel of the House Oversight 
and Government Reform Committee.
    Mr. Lu, thank you for being here.
    Patricia Smith was confirmed by the Senate as the Solicitor 
of Labor on February 4, 2010. Prior to becoming Solicitor of 
Labor, Patricia Smith was the New York State Commissioner of 
Labor and the chief of the Labor Bureau for the New York State 
Attorney General. She also argued and won two cases before the 
Supreme Court and has an extensive history of representing 
employees in various legal service organizations.
    Ms. Smith, thank you very much for being here.
    Third and finally for this panel, Dr. John Howard serves as 
the Director of the National Institute for Occupational Safety 
and Health in the U.S. Department of Health and Human Services. 
Dr. Howard was first appointed by President George W. Bush and 
was reappointed to serve in this capacity under President 
Obama.
    Prior to his appointment as Director of NIOSH, the acronym 
which we'll hear a lot about today, Dr. Howard served as the 
chief of the Division of Occupational Safety and Health in the 
California Department of Industrial Relations. Dr. Howard is 
board certified in internal medicine and has written numerous 
articles on occupational health law and policy.
    Doctor, thank you for being with us today.
    Let me start with Mr. Lu. Thank you for your presence here, 
we look forward to your testimony.

STATEMENT OF CHRISTOPHER P. LU, DEPUTY SECRETARY, DEPARTMENT OF 
     LABOR, WASHINGTON, DC; ACCOMPANIED BY PATRICIA SMITH, 
         SOLICITOR, DEPARTMENT OF LABOR, WASHINGTON, DC

    Mr. Lu. Thank you, Chairman Casey, Ranking Member Isakson, 
Senator Harkin. Thank you for inviting me and Solicitor 
Patricia Smith to testify about the Department of Labor's 
administration of the Black Lung Benefits Act.
    Mr. Chairman, when I first appeared before this committee 
in February, I assured you and Senator Harkin that if confirmed 
I would be committed to ensuring fairness for America's coal 
miners and their families. Let me restate that commitment to 
you today.
    The Department's Office of Workers' Compensation Program, 
OWCP, administers the Black Lung Benefits Program. When a claim 
is filed, OWCP provides a complete pulmonary evaluation at the 
Department's expense. OWCP considers the evidence from the 
evaluation along with other evidence submitted by the parties 
and then makes a claim determination. Any claimant or employer 
dissatisfied with OWCP's decision may request a hearing before 
the Department's Office of Administrative Law Judges and from 
there may appeal to the Benefit Review Board and then to the 
appropriate Federal circuit court.
    Senator Casey, as you indicated, last fall the Center for 
Public Integrity and ABC News published a series of reports 
highlighting the difficulties faced by claimants seeking black 
lung benefits. The reports described litigation tactics of coal 
company attorneys to selectively disclose medical evidence. In 
particular, the reports focused on a case involving Gary Fox in 
which his employer's attorneys concealed evidence that Mr. Fox 
had advanced black lung disease. Due to this concealment, Mr. 
Fox was initially denied black lung benefits.
    CPI and ABC News also looked at the routine use of certain 
physicians by coal companies. As you indicated, the reports 
focused on the Johns Hopkins Medical Center B Reader program 
led by Dr. Paul Wheeler. Those reports found that Dr. Wheeler 
failed to diagnose complicated black lung disease in over 1,500 
cases while other experts reading the same x-rays found the 
disease in 390 of those cases.
    In response to these reports, on February 24th of this 
year, the Department of Labor launched a pilot project to 
strengthen the complete pulmonary evaluation given to miners 
when they initially file a claim, which will increase the 
accuracy of decisions. The Department also announced a new 
black lung rulemaking initiative that will consider whether all 
parties must disclose medical evidence related to a claim. Such 
a requirement will help ensure that coal miners have full 
access to information about their health.
    With regard to Dr. Wheeler, OWCP issued a bulletin 
instructing its district directors not to credit evidence 
submitted by Dr. Wheeler's x-ray readings in the absence of 
evidence rehabilitating his credibility. OWCP has searched its 
records to identify denied claims that contained x-ray 
interpretations made by Dr. Wheeler and has attempted to 
contact almost 1,100 affected claimants about their right to 
request a reopening of their claim or their right to file a new 
claim.
    Finally, the Department has launched a new training 
initiative in connection with NIOSH to further improve the 
quality of its decisions. As the subcommittee has also 
recognized, there is a backlog of black lung claims awaiting 
hearing and decision by the Office of Administrative Law 
Judges.
    To begin to address this situation, the president's fiscal 
year 2015 budget for the ALJs proposes a programmatic increase 
of $2.72 million. In total, OALJ's budget reflects an 11.5 
percent increase over the fiscal year 2014 budget and is the 
largest increase the Department has sought in 10 years.
    In fiscal year 2015, the Department plans to hire two new 
ALJs for the Pittsburgh office primarily to adjudicate black 
lung cases. The Department will also bring back a retired ALJ 
in Pittsburgh to focus predominantly on black lung cases. In 
addition, we are instituting a number of efficiencies that we 
believe will increase the productivity of ALJs and speed up the 
disposition of black lung cases.
    Nevertheless, the Department's outreach efforts to miners 
whose claims contained Dr. Wheeler's interpretations are likely 
to result in a significant number of new claims. And even 
without this recent outreach effort, the number of claims filed 
in 2014 is projected to increase by 10.6 percent.
    In conclusion, let me assure you that the Department of 
Labor is committed to improving the effectiveness of these 
programs, and we look forward to working with the subcommittee 
on this important effort.
    Thank you.
    [The prepared statement of Mr. Lu and Ms. Smith follows:]

                Prepared Statement of Christopher P. Lu

    Chairman Casey, Ranking Member Isakson, and distinguished members 
of the subcommittee, thank you for inviting me to testify about the 
Department's administration of the Black Lung Benefits Act. The 
Department is committed to the Nation's coal miners and their families, 
and to ensuring fairness in the claims process.
    You have asked us to address the steps the Department has taken in 
response to the October 2013 Center for Public Integrity (CPI) and ABC 
News reports about difficulties miners and their survivors have 
encountered in pursuing black lung benefits. You have also asked us to 
address the backlog of black lung cases pending before the Office of 
Administrative Law Judges. We appreciate your ongoing interest in the 
Black Lung program and welcome the opportunity to discuss the program 
with you, Mr. Chairman, and the subcommittee today. We look forward to 
your continuing leadership on these issues.
                              introduction
    Recognizing that coal miners were sacrificing both their health and 
economic futures to produce the coal necessary to meet the Nation's 
energy needs, and that State workers' compensation programs were 
inadequate for them, Congress enacted the Black Lung Benefits Act in 
1969. Since then, the Act has provided compensation and medical-
treatment benefits to thousands of disabled coal miners and 
compensation to their surviving family members. Currently, the Act 
provides benefits to coal miners who are totally disabled by black lung 
disease and to the survivors of miners who died due to the disease. The 
Byrd Amendments, enacted in 2010, also restored automatic entitlement 
to survivors of miners who were found entitled to benefits based on 
their own lifetime claims.\1\
---------------------------------------------------------------------------
    \1\ Pub. L. No. 111-148,  1556(c), 124 Stat. 260 (2010).
---------------------------------------------------------------------------
    Generally, a miner must establish that he or she has a lung disease 
arising from coal mine employment, a totally disabling respiratory 
impairment, and that the lung disease contributed to the impairment. A 
survivor who cannot benefit from the Byrd automatic entitlement 
provisions must establish that the miner had a lung disease arising 
from coal mine employment, and that the lung disease hastened the 
miner's death. Any claimant, miner, or survivor, must prove his or her 
case by a preponderance of the evidence.
    In making his case, a claimant may be able to take advantage of two 
important statutory presumptions. First, if the claimant proves the 
miner has or had complicated black lung disease--an advanced form of 
the disease also known as progressive massive fibrosis--the claimant 
can invoke a presumption of entitlement that the liable party is not 
permitted to rebut.\2\ Second, if the miner engaged in underground coal 
mine employment, or substantially similar above-ground coal mine 
employment, for at least 15 years and the claimant proves that the 
miner has or had a totally disabling respiratory impairment, the 
claimant can invoke a presumption that the miner has or had black lung 
disease and that the miner's disability or death was due to the 
disease. The liable party may rebut this presumption only by showing 
the absence of black lung disease and that no part of the miner's 
disability or death was related to coal mine employment.\3\
---------------------------------------------------------------------------
    \2\ 30 U.S.C.  921(c)(3).
    \3\ 30 U.S.C.  921(c)(4) (2006 & Supp. V 2011).
---------------------------------------------------------------------------
    The Department's Office of Workers' Compensation Programs (OWCP) 
administers the program. OWCP's District Directors, whose offices are 
located around the country, develop claims and conduct initial 
adjudications. OWCP offers all miners who file claims a complete 
pulmonary evaluation at the Department's expense. OWCP then considers 
this evidence, along with that submitted by the private parties, in 
adjudicating the claim. Any claimant or coal company dissatisfied with 
the District Director's decision may request a de novo hearing before 
the Department's Office of Administrative Law Judges (OALJ). Before the 
administrative law judge, parties may offer additional evidence--within 
the limitations established by the Department's regulations--on 
contested issues. The judge will also conduct an oral hearing unless 
waived by the parties. After hearing the case and receiving evidence, 
the judge issues a decision either awarding or denying benefits. An 
aggrieved party may seek appellate review by the Department's Benefits 
Review Board, and thereafter by the United States Court of Appeals for 
the circuit in which the miner's coal mine employment occurred.
    The Act originally divided responsibility for the program between 
the Social Security Administration, which administered early claims 
that were payable directly by the Federal Government, and the 
Department of Labor, which administered all claims filed after 1973. 
Claims administered by the Department are payable by coal mine 
companies (or their insurance carriers) that employed the miner; if 
there is no liable coal mine company available, the Black Lung 
Disability Trust Fund pays benefits.
                        the cpi/abc news reports
    Last fall, CPI and ABC News published a series of reports 
highlighting hurdles claimants face in seeking black lung benefits. 
They focused primarily on two areas. First, the reports described 
litigation tactics used by attorneys representing coal companies. These 
tactics included selective disclosure of company-developed medical 
evidence to the adjudicator as well as to the company's other medical 
experts and the miner. The reports used miner Gary Fox's case, among 
others, to illustrate the problem. In that particular case, the coal 
company's attorney did not share medical evidence that was indicative 
of complicated pneumoconiosis--an advanced form of black lung disease 
that when proved, establishes entitlement to benefits--with either the 
coal miner or the company's other medical experts who ultimately 
testified that Mr. Fox did not have black lung disease. The company's 
evidence resulted in denial of Mr. Fox's initial claim for benefits.
    Second, CPI and ABC News looked at coal companies' routine use of 
certain physicians in developing medical evidence to defend against 
claims. The reports mainly focused on the Johns Hopkins Medical Center 
B-reader program, led by Dr. Paul Wheeler. (A ``B-reader'' denotes a 
physician who has passed the National Institute for Occupational Safety 
and Health's examination on proficiency in using the International 
Labor Office (ILO) classification system to describe or ``classify'' 
the presence or absence of, and the severity of, radiographic opacities 
visible on chest X-rays, that are consistent with black lung or other 
dust-induced diseases.) Many employers, including coal companies, use B 
Readers to classify miners' chest X-rays and serve as expert witnesses 
in contested proceedings. The CPI and ABC News reports stated that Dr. 
Wheeler had failed to diagnose complicated pneumoconiosis in over 1,500 
cases, while other experts who evaluated the same cases had found 
complicated pneumoconiosis in 390 of them. The stories also documented 
that Dr. Wheeler was failing to properly classify chest X-rays showing 
obvious large opacities because he argued that the opacities were due 
to diseases other than Black Lung. Johns Hopkins suspended the program 
shortly after the CPI and ABC News stories were published and launched 
an internal review. To our knowledge, the program remains suspended 
today.
                       the department's response
    The Department took these reports seriously. We conducted an 
extensive review of the program to look for innovative ways to address 
the disparity in resources between coal companies and benefits 
claimants within the existing statutory and regulatory framework. The 
Department also looked for other changes that could be made to improve 
the fairness of the claims process and increase the accuracy of 
decisions made on claims.
    I would like to share with you some of the actions the Department 
has taken as a result of this review.

    1. Pilot Program to Develop Supplemental Medical Evidence

    On February 24, 2014, the Department launched a pilot project to 
strengthen the complete pulmonary evaluation given to miners. When a 
miner files a claim, the miner picks a doctor to conduct an examination 
from an approved list the Department maintains. The physician examines 
the miner, conducts medical tests to determine whether the miner is 
disabled from black lung disease, and prepares a written report of his 
or her findings. OWCP then bases its initial entitlement determination 
on the report. All claims filed by miners follow this procedure.
    But these initial medical reports do not always hold their value as 
a claim moves through the adjudication process. They are often rejected 
because they are outdated or do not consider all of the medical data 
added later to the record by miners and coal companies. The Department 
launched the pilot program to help alleviate these problems. In a small 
subset of claims--generally those where the miner worked 15 or more 
years in the mines (and thus might be able to invoke the 15-year 
statutory presumption of entitlement) and whose initial medical report 
supports an award of benefits--the Department is developing additional 
medical evidence. We ask the doctor who conducted the initial 
examination to review any evidence submitted by the miner or the coal 
company and update his or her initial opinion by drafting a 
supplemental report. Depending on the particular circumstances of any 
given case, we may ask for supplemental reports during both the OWCP 
and administrative law judge adjudication phases.
    The Department chose this approach in response to the CPI and ABC 
News stories because it had multiple advantages. Developing additional 
medical evidence at no expense to the miner would: (1) address concerns 
about disparate resources; (2) improve decisionmaking; and (3) fit 
within the existing legal framework, making speedy implementation 
possible.
    The pilot project is still in its early stages. OWCP has sent out 
79 requests for supplemental reports in cases being adjudicated by 
District Directors and has received 42 in response. OWCP has issued 37 
decisions: 25 awards, 11 denials, and 1 claimant withdrew his 
application for benefits. We have also requested supplemental opinions 
in several cases set for hearing before an administrative law judge, 
but these cases have not yet been decided.
    The Department hopes the pilot project gives deserving miners 
stronger medical reports that strengthen OWCP's initial entitlement 
decisions and that withstand scrutiny when weighed against the coal 
companies' contrary evidence. Stronger OWCP decisions may lead to fewer 
hearing requests in the future. While it is too soon to assess the 
pilot's effectiveness, the Department will consider expanding this 
procedure to all claims filed by miners if the pilot is judged 
successful.

    2. New Regulatory Initiative

    In addition to the pilot project, the Department announced a new 
black lung rulemaking initiative on May 23, 2014, motivated in part by 
Gary Fox's case and the CPI and ABC News reports. The Department plans 
to address three important issues in a proposed rule: whether all 
parties involved in a claim must disclose medical evidence they obtain 
in connection with a claim; the fee schedule used for payment of a 
miner's medical expenses related to black lung disease; and a liable 
coal company's responsibility to pay benefits under an effective award 
while seeking modification of the award.
    The first of these issues--the medical-evidence disclosure rule--is 
the most relevant here. We want to ensure that coal miners have full 
access to information about their health. We also want to render 
accurate decisions in adjudicating claims. Having access to medical 
evidence developed by all parties can help us accomplish both of these 
goals.
    The Department invited stakeholders to comment on all three 
rulemaking topics during outreach sessions held earlier this month on 
July 8 and 9. Both sessions were well attended and productive. The 
information the Department gathered will be of great assistance in 
drafting a proposed rule.

    3. X-ray Interpretations Made by Dr. Wheeler

    The Department also responded quickly to the allegations made in 
the CPI and ABC News reports about Dr. Paul Wheeler's potentially 
incorrect X-ray readings. We immediately verified that OWCP was not 
employing Dr. Wheeler for any purpose. Shortly thereafter, OWCP's 
National Office shared the news reports with their District Directors, 
instructed them to closely scrutinize any evidence offered by Dr. 
Wheeler and to consult with National Office staff on cases involving 
Dr. Wheeler's X-ray readings.
    The CPI and ABC News reports continued to be discussed in routine 
bi-weekly management meetings involving OWCP National Office and 
District Director staffs. Not surprisingly, coal companies, for the 
most part, stopped submitting X-ray readings made by Dr. Wheeler. One 
attorney who represents coal companies asked a District Director to 
disregard any earlier requests he had made for OWCP to forward 
radiographs to Dr. Wheeler for re-reading. When OWCP's National Office 
learned that one of its district offices was not following these oral 
instructions, the Department issued more detailed, written guidance.
    The Department made the judgment that the CPI and ABC News reports 
and Hopkins' suspension of its B-reader program were sufficiently 
trustworthy and reliable to warrant consideration when weighing X-ray 
interpretations made by Dr. Wheeler. Accordingly, on June 2, 2014, OWCP 
issued a bulletin instructing its District Directors to consider this 
information when weighing Dr. Wheeler's negative X-ray interpretations, 
and not to credit Dr. Wheeler's interpretation in the absence of 
persuasive evidence either challenging the CPI and ABC News conclusions 
or otherwise rehabilitating Dr. Wheeler's readings. The Solicitor's 
Office is also asking administrative law judges and the Benefits Review 
Board to take official notice of the CPI and ABC News reports in 
appropriate cases.
    In addition to issuing this guidance, OWCP searched its records to 
identify denied claims that contained X-ray interpretations made by Dr. 
Wheeler. The search included claims filed from 2001 to the present. 
OWCP broke these claims into two groups: those denied within the past 
year that could be reopened under the Act's 1-year modification 
provision, and those denied more than 1 year ago.
    OWCP identified 83 claims that had been denied within the past year 
and sent a letter to those claimants alerting them to OWCP's new 
guidance on Dr. Wheeler's X-ray readings. The letter informed the 
claimants that they could request reopening of their claims, included 
the date by which they had to make the request, and told them that the 
request could be made either by telephoning or writing OWCP. In four 
instances, the 1-year modification deadline was quickly approaching, so 
OWCP telephoned the claimants in addition to sending the letter. To 
date, 13 claimants have sought modification in response to OWCP's 
letter.
    OWCP also identified approximately 1,000 claims filed by miners 
between 2001 and 2013 that contained Dr. Wheeler X-ray interpretations 
and had been denied for more than 1 year. Although modification is no 
longer available to these miners, a miner may always file a new claim 
because his or her condition may significantly deteriorate over time. 
Black lung disease can be latent and progressive, appearing after a 
miner's coal mine employment ends or progressing to total disability 
with or without continued mining exposure. OWCP sent letters to these 
miners advising them of the new guidance regarding Dr. Wheeler's X-ray 
interpretations and that they could file new claims. The letter told 
them that the Department would once again provide each miner with a 
complete pulmonary evaluation at no expense. Because the letters were 
sent earlier this month, we do not yet know whether any miners will 
file new claims in response.
    Unfortunately, most survivors (unlike miners) whose claims were 
denied more than 1 year ago have no avenue of relief. These survivors 
cannot ask for modification because the 1-year period has expired. And 
under the current statutory and regulatory scheme, such survivors 
cannot be found entitled to benefits based on a new claim.
    I can assure you that if a claimant files a timely modification 
request or a miner files a new claim, OWCP intends to follow its stated 
policy and not credit Dr. Wheeler's X-ray interpretations without 
persuasive evidence either challenging the CPI/ABC News conclusions or 
otherwise rehabilitating Dr. Wheeler's readings. The Solicitor's Office 
will also continue to ask administrative law judges and the Benefits 
Review Board to take official notice of the CPI/ABC News stories where 
appropriate.
    In addition, to address any similar issues that may arise going 
forward, the Department has begun exploring with the National Institute 
for Occupational Safety and Health (NIOSH) the feasibility of 
establishing an inter-agency quality assurance program for B-readers 
whose X-ray classifications are submitted and considered in black lung 
claims adjudications.

    4. Training Initiatives

    The Department has also launched a new training initiative to 
further improve the quality of its decisions in black lung claims. We 
have worked closely with NIOSH to develop advanced training for 
Department personnel who adjudicate claims and physicians who examine 
miners on behalf of the Department. The program will keep staff up-to-
date on medical developments relevant to black lung claims. A potential 
curriculum for the program was reviewed and evaluated by a broad range 
of participants--including physicians and other medical providers, coal 
miners, claimant representatives and attorneys, OWCP staff, and 
Solicitor's Office staff--at the West Virginia Black Lung Clinics 
Program Conference in Pipestem, WV, last month. The curriculum will be 
refined based on the feedback received at that session. We have engaged 
a contractor, Dr. Robert Cohen from the University of Illinois, to 
develop the training program with input from NIOSH. We believe the 
training will increase the quality of the medical evaluations the 
Department provides to miners and enhance the Department's evaluation 
of the medical evidence when adjudicating claims.
    OWCP is committed to ongoing training, and, in addition to entering 
into the contract noted above, recently added a training coordinator to 
its National Office black lung staff.

    5. Communications and Outreach

    OWCP has used a variety of forums to communicate the steps that it 
is taking to improve the program. OWCP leaders have discussed the pilot 
project, the agency's expanded consultations with NIOSH, and the new 
training program at several conferences attended by miners and their 
representatives, doctors, and other medical providers who are involved 
with the program. OWCP has also placed on its website information about 
the pilot project, OWCP's guidance on Dr. Wheeler's X-ray readings, and 
a set of Questions and Answers about the rights of claimants whose 
claims were potentially impacted by Dr. Wheeler's readings. OWCP also 
shared the Questions and Answers with interested congressional offices 
and OWCP's District Offices.

    6. Looking Forward

    In addition to the actions already taken, the Department is 
planning for the future. We have committed to consult regularly with 
NIOSH on recurring medical issues raised in claims litigation. If 
science resolves a particular issue, the Department will consider 
promulgating a rule to address it. Promulgating rules where the science 
is clear can lead to less litigation and help resolve miners' and 
survivors' claims more quickly. Both OWCP staff and the Solicitor's 
Office attorneys who litigate black lung cases are on the lookout for 
recurring medical and scientific issues so that we can consult with 
NIOSH in a timely manner.
    We will also be enhancing our accountability review process within 
OWCP. OWCP's National Office staff performs onsite reviews of its 
District Offices and assesses their performance on critical program 
activities such as initial claim adjudications, administering benefit 
payments, and performing related activities associated with financial 
management and program administration. Each District Office is reviewed 
based on a sample of approximately 450 case files and other documents 
reflecting the work of the particular office.
    We are considering adding spot audits that would require District 
Directors to review a sample of awards and denials after lower 
management reviews have been completed but before the award or denial 
is issued. The spot audits will be used as a quality enhancement tool 
and address whether the decision is appropriate, well-reasoned and in 
compliance with applicable statutes, regulations and policies.
      cases pending before the office of administrative law judges
    As the committee has recognized, there is a backlog in black lung 
claims awaiting hearing and decision by the Office of Administrative 
Law Judges. The number of judges available to hear cases has gone down 
over the past 10 years from 45 to 36 due to retirement and other 
departures. We are working on replacing those that we have lost, but 
that process has been hindered by sequestration reductions. In 
addition, the President's fiscal year 2015 budget provides funding for 
OALJ to hire additional staff to address the backlog. The budget 
proposes a programmatic increase in OALJ for 10 full-time employees, 
$2,027,000 in general funds and $693,000 in Black Lung resources. In 
total, the budget reflects an 11.5 percent increase for OALJ over the 
fiscal year 2014 enacted budget and is the largest increase the 
Department has sought in 10 years. The fiscal year 2015 budget also 
includes a plan for fully replacing the automatic sequester cuts with 
smarter, better targeted reductions. If allowed to continue, 
sequestration will further reduce available Black Lung funding for 
OALJ's administrative needs. These additional resources proposed in the 
President's budget will increase OALJs' ability to hear and decide 
claims more quickly.
    OALJ is also tackling the black lung case backlog in other ways. 
Some actions are directly related to adjudicating black lung cases 
while others are designed to free administrative law judges in other 
areas so that they have more time to devote to black lung cases. These 
actions include:

     Hiring two new administrative law judges for OALJ's 
Pittsburgh District Office in fiscal year 2015 to adjudicate black lung 
cases predominantly. In the meantime, an administrative law judge who 
had previously retired will be brought back as a Senior ALJ in the 
Pittsburgh office, where he will focus predominantly on black lung 
cases. OALJ will also be hiring two new administrative law judges for 
the National office in Washington. The Washington office has the 
largest staff of judges and disposes of more black lung claims than any 
individual district office.
     Hiring a Senior Attorney in each OALJ District Office, 
instead of relying solely on law clerks who serve 2-year terms. A 
Senior Attorney would develop greater expertise in black lung law and 
thus be better able to assist administrative law judges faced with 
difficult issues. Given the funding issues involved, OALJ is launching 
this as a pilot program only.
     Exploring the use of contract attorneys, who are usually 
former law clerks, to draft black lung decisions on a fixed cost per 
case. In the past, this has proved a cost-effective method of reducing 
decision backlogs.
     Routinely advising represented parties in black lung cases 
that a decision may be made on the documentary record, without an oral 
hearing, if all parties agree. Where the parties do agree, OALJ will be 
able to proceed more quickly to a final disposition of the claim.
     Monitoring the productivity of all administrative law 
judges with regard to the disposition of black lung cases, and 
counseling judges who are less productive.
     Using rehired annuitants to form additional Board of Alien 
Labor Contract Appeals panels to dispose of Permanent Labor 
Certification (PERM) cases. This will free up administrative law judges 
to hear and decide more black lung cases.
     Continuing to explore using electronic systems for 
hearings. This could reduce travel costs and conserve valuable 
administrative law judge time that could be devoted to decisionmaking.
     Developing 10-15 training modules in conjunction with 
NIOSH to help administrative law judges and staff better understand the 
medical issues typically presented in black lung claims. This training 
could speed up the disposition of these claims.
    You have also asked whether the Department's actions taken in 
response to the CPI and ABC News reports might have an impact on the 
backlog. The Department's outreach efforts to miners whose claims 
contained Dr. Wheeler X-ray interpretations are likely to result in a 
significant number of new claim filings. We project approximately 330 
new claims will be filed in fiscal year 2014 with an additional 300 to 
400 in fiscal year 2015 in response to the 1,000 letters sent to miners 
whose claims were denied. In addition, new claim filings thus far in 
fiscal year 2014 have exceeded earlier estimates. OWCP now projects 
7,100 new claim filings (not including any new claims filed in response 
to the letters sent about Dr. Wheeler) by the end of this fiscal year, 
a 10.6 percent increase over claim filings in fiscal year 2013. 
Although the reason for this increase is difficult to determine, 
drivers likely include OWCP's publication of regulations in September, 
2013, implementing the Byrd Amendments; the increased publicity the 
program has received; and OWCP's outreach efforts to the coal-mining 
community. The increase in new claim filings will, of course, be 
reflected in the Department's workload at all adjudication levels, 
including OALJ.
                               conclusion
    Coal miners who have sacrificed their health because of their 
occupation deserve a fair process when they file claims for black lung 
benefits. The actions the Department has taken will further that goal. 
We look forward to continuing to work with you to improve the program 
and the lives of coal miners and their families.

    Senator Casey. Thank you, Deputy Secretary Lu. And I want 
to explain that because you and Solicitor Smith are in the same 
department, you've submitted joint testimony. So there's joint 
written testimony, but only one oral testimony. Of course, 
Solicitor Smith will be available for questions.
    Next we'll move to Dr. Howard.

 STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL INSTITUTE 
       FOR OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, DC

    Dr. Howard. Good morning, Mr. Chairman, Ranking Member 
Isakson, and Senator Harkin. I would like to provide an update 
on NIOSH's efforts to provide high-quality health surveillance 
for coal miners and to assist in ensuring accurate assessment 
of chest radiographs for coal workers' pneumoconiosis or black 
lung disease.
    Surveillance for coal workers' pneumoconiosis, a 
progressive lung disease even after cessation of coal dust 
exposure, was first required by the Coal Mine Health and Safety 
Act of 1969. It was quickly recognized that there was 
substantial disagreement between physicians in determining 
whether chest radiographs showed evidence of pneumoconiosis.
    In 1978, NIOSH promulgated regulations that took steps to 
ensure accurate chest radiograph readings for the NIOSH Coal 
Workers' Health Surveillance Program. The regulations required 
physicians to meet certain requirements before participating in 
the NIOSH surveillance program and a rigorous process to 
evaluate chest radiographs for evidence of pneumoconiosis. This 
process is based on multiple independent evaluations that are 
summarized in a way that emphasizes mainstream views and 
minimizes the impact of extreme or outlying views.
    The NIOSH B Reader Certification Program based on these 
regulations trains and tests physicians for their ability to 
use the system from the International Labor Organization, or 
ILO, for standardized description or classification of changes 
on chest radiographs that are associated with pneumoconiosis. 
Physicians can become a B Reader by passing an examination in 
which they are graded on their ability to classify a group of 
chest radiographs using the ILO system.
    Currently, there are 221 B Readers in the United States, 
down from a high of 634 in 1997. Besides their role in the 
NIOSH surveillance program, B Readers provide classifications 
in non-NIOSH settings, such as the Department of Labor's Black 
Lung Compensation Program.
    NIOSH was also concerned by reports from the Center for 
Public Integrity and ABC News suggesting that a B Reader 
involved in the Department of Labor's Black Lung Compensation 
Program systematically chest radiographs. NIOSH took four 
actions in response.
    First, we immediately offered Johns Hopkins our assistance 
to help them with its inquiry. Second, NIOSH noted that the 
Johns Hopkins B Reader in question reportedly asserted that 
clearly visible chest radiographic changes need not be 
classified if the B Reader believed they had a cause other than 
pneumoconiosis. This is not consistent with the purpose of the 
ILO classification system.
    In response, NIOSH obtained approval from the OMB to revise 
the NIOSH form, which many B Readers use in non-NIOSH settings. 
The new form clearly requires that all findings described by 
the ILO classification system that are seen on the chest 
radiograph must be classified regardless of the physician's 
opinion about their underlying cause.
    Third, NIOSH has entered into a partnership with the 
Department of Labor's Office of Workers' Compensation Programs 
to work together to establish a quality assurance program that 
will allow the Department of Labor to assess whether physicians 
performing classifications of chest radiographs in connection 
with black lung compensation cases are doing so accurately.
    Fourth, NIOSH reiterated that when it is provided with a 
written complaint about the ethics or competence of an 
individual B Reader that performs services in non-NIOSH 
settings, NIOSH would refer the complaint to the appropriate 
State licensing board if it involved medical interpretation. 
The practice of medicine is regulated at the State level, and 
State licensing boards have investigative authorities in non-
NIOSH settings not available to NIOSH.
    Since 1978, NIOSH is aware of only two B Readers who have 
lost their licenses to practice medicine because of the way 
they classified chest radiographs. NIOSH offers its technical 
assistance to any State medical licensing board that makes the 
decision to investigate chest radiograph classifications 
performed by a B Reader. More information about the NIOSH B 
Reader program, including a list of best practices, is provided 
in my written testimony.
    Thank you, Mr. Chairman, and I am happy to answer any 
questions.
    [The prepared statement of Dr. Howard follows:]

                Prepared Statement of John Howard, M.D.

    Good morning, Mr. Chairman, Ranking Member Isakson, and 
distinguished members of the subcommittee. My name is John Howard and I 
am the director of the National Institute for Occupational Safety and 
Health, or NIOSH, which is part of the Centers for Disease Control and 
Prevention (CDC) within the U.S. Department of Health and Human 
Services (HHS). I am here today to provide an update on NIOSH's efforts 
to provide high-quality health surveillance to coal miners to protect 
their respiratory health.
                     b reader certification program
    The need for the B Reader Certification Program was recognized soon 
after NIOSH was established in 1970. One of NIOSH's very first 
responsibilities was to provide ongoing, periodic health surveillance 
to underground coal miners, using chest radiographs to screen for a 
type of dust-induced lung disease (pneumoconiosis). The requirement to 
provide this surveillance was established in 1969 by section 203(a) of 
the Federal Coal Mine Health and Safety Act (Public Law 91-173), hereby 
referred to as the ``Coal Act.''
    The Coal Act required that miners found to have evidence of 
pneumoconiosis be offered the opportunity for transfer to jobs with 
lower dust exposures to minimize progression of their disease. It was 
found at that time that there was substantial disagreement between 
physicians in determining whether chest radiographs showed evidence of 
pneumoconiosis. This was attributed in part to physicians' lack of 
experience with the classification systems employed to describe chest 
radiographic changes and their lack of familiarity with the 
radiographic manifestations of pneumoconiosis. In response, efforts 
were initiated to develop a pool of physicians with the skills needed 
to provide high quality, reproducible documentation of changes in 
miners' chest radiographs. These efforts led in 1978 to the 
regulations, codified at 42 CFR part 37, under which the B Reader 
Certification Program operates. It was also recognized that accurate, 
reproducible results depended as much on the system within which B 
Readers were used as upon their individual skills. Thus, Part 37 also 
included regulations describing how B Readers were to be employed in 
classifying chest radiographs for the presence and severity of changes 
associated with pneumoconiosis.
    The B Reader Certification Program trains and tests physicians for 
their ability to use a standardized system for describing changes found 
on chest radiographic images that are associated with pneumoconiosis. 
This system is called the International Labor Organization (ILO) 
International Classification of Radiographs of the Pneumoconioses. The 
ILO Classification System is used in many countries to provide a 
framework for reproducible ``classification'' or description of chest 
radiograph quality and the presence and severity of changes associated 
with pneumoconiosis on chest radiographs. The focus of the 
classification is to have standardized, reproducible reporting of what 
changes can be seen on the chest radiographs. Relatively few physicians 
are familiar with the system since it is not typically used to provide 
clinical care. Rather, a classification using the ILO system (sometimes 
referred to as a ``B reading'') is more often used in epidemiological 
research, health surveillance, legal and compensation systems where 
greater standardization is required. Making a clinical diagnosis about 
what medical condition or disease has caused visible radiographic 
changes that are classified in an individual is a separate process from 
image classification. Clinical diagnosis involves considering 
additional clinically relevant information, for example: work or 
exposure history, medical history and physical examination, and the 
results of other medical tests.
    Physicians seeking to become B Readers can learn to perform ILO 
classification using a self-study syllabus available from NIOSH or can 
take a course periodically offered by the American College of 
Radiology. Physicians can become B Readers by taking a certification 
examination in which they are graded on their ability to classify a 
group of chest radiographs. They must take a re-certification 
examination every 4 years to maintain their certification. Over the 
years, the certification examination has had an approximately 50 
percent pass rate and the recertification examination an approximately 
85 percent pass rate. There are currently 221 B Readers in the United 
States--down from the high of 634 in 1997.
    Part 37 specifies how B Readers are employed to classify chest 
radiographs for the NIOSH Coal Workers' Health Surveillance Program 
(CWHSP). At least two readers independently classify each chest 
radiograph. If the first two readers are in disagreement, a third 
reader classifies the film and, if there is sufficient agreement, a 
median classification is used. However, if there is still insufficient 
agreement, up to five readers may be used. This system inherently 
assures that classifications represent mainstream views and minimizes 
the impact of extreme individual classifications that differ from those 
of other B Readers.
    The B Reader Certification Program was developed to improve the 
quality of NIOSH's CWHSP and the same regulations that established the 
B Reader Program also established an appropriate system of employing B 
Readers to optimize the accuracy and reproducibility of their 
classifications. Over time, successful completion of the B Reader 
Certification Examination has been recognized internationally as 
evidence of competence in using the ILO Classification System to 
classify changes on chest radiographs. Even though only physicians with 
U.S. licensure can become B Readers, NIOSH allows international 
physicians and scientists to take the B Reader certification and 
recertification examinations. If they pass, their names are listed on 
the NIOSH website. The website currently lists 63 of these successful 
international examinees.
    burden of pneumoconiosis documented by the coal workers' health 
                          surveillance program
    The ability of the CWHSP to obtain accurate classifications of 
underground coal miners' chest radiographs has allowed it to 
longitudinally monitor the burden of pneumoconiosis in U.S. underground 
coal miners since the 1970s. Because it takes 5 years to complete a 
full national surveillance cycle, NIOSH typically shows pneumoconiosis 
rates over 5-year intervals.
    Pneumoconiosis most often takes several decades to become apparent, 
so only trends for those engaged in underground coal mining for 20 
years or more are discussed.
    In this tenure group, prevalence of pneumoconiosis in CWHSP 
participants was at its highest, 29.3 percent, in the 5-year period of 
1970-74. Rates fell continuously after that until 1995-99, reaching a 
low of 3.2 percent. Rates subsequently increased to 6.1 percent and 6.4 
percent in 2000-2004 and 2005-2009, respectively. NIOSH will soon 
complete another 5-year period and it appears that rates will be 
similar. Prevalence rates have been higher among underground coal 
miners working in the Central Appalachian region and in smaller mines, 
although pneumoconiosis continues to be a problem nationwide.
    NIOSH does not have similar longitudinal data for surface coal 
miners, who have not previously been required to be offered health 
surveillance. This situation will change as of August 1, 2014, when the 
Mine Safety and Health Administration's new respirable coal mine dust 
regulations go into effect. At that time, NIOSH's CWHSP will be 
expanded to include surface coal miners. Required health surveillance 
will also add a lung function test called spirometry to the screening 
that is offered to coal miners.
     updating the b reader certification program to digital format
    In recent years, most clinical facilities have moved from film-
based chest radiography to digital chest imaging. In response, NIOSH 
assisted the ILO to enable digital chest images to be classified using 
the ILO system. This involved doing research to document technical 
approaches that would yield the same classification regardless of 
whether an individual was evaluated using a film-based chest radiograph 
or a digital chest image. NIOSH is now updating the B Reader 
Certification Program to digital format. NIOSH has entered into a 
contract with the American College of Radiology to accomplish this 
work, which will include updating the B Reader Certification Program's 
educational syllabus, certification examination, and recertification 
examination into modern digital format. This modernization of the 
program is critically important for us to maintain an adequate pool of 
physicians able to classify chest radiographs using the ILO 
Classification System.
             b reader classifications in non-niosh settings
    The B Reader Certification Program is the only formal national 
program that provides training and evidence of competency in 
classifying chest radiographs according to the ILO Classification 
System. Because there is also a need for classification of chest 
radiographs using the ILO Classification System in a range of non-NIOSH 
settings, B Readers have been sought after to provide classification in 
those settings. Examples include research, industry health surveillance 
programs, legal proceedings, and various governmental eligibility 
programs, including the Department of Labor's Black Lung Compensation 
Program. Examples of non-NIOSH employers in these settings include 
academia, medical practices, industry, legal firms, and other 
governmental agencies.
    Because NIOSH's authority for operating the B Reader Certification 
Program is tied to operation of the Coal Workers Surveillance Program, 
we do not have any formal role or authority in many of these settings. 
For example, we do not have the authority to obtain information about 
what non-NIOSH classifications are performed, the results of the 
classifications, or to obtain the images that were classified. Also, 
many of these settings--chiefly adversarial proceedings--do not employ 
B Readers in a way that optimizes accuracy and mainstream 
classifications, as I have described for the Coal Workers Surveillance 
Program.
    Thus, over the decades that the B Reader Certification Program has 
been in existence, NIOSH has not monitored or guaranteed the accuracy 
of classifications performed by B Readers in non-NIOSH settings. For 
those seeking to assess the quality of classifications performed in 
non-NIOSH settings, NIOSH has developed a set of recommended practices 
for obtaining accurate classifications of chest radiographs, which are 
posted on the NIOSH website. Classifications resulting from practices 
such as using a summary classification of multiple independent readers, 
blinding the readers to the source of the radiograph, picking readers 
randomly (or taking other steps to assure they are in the mainstream), 
and conducting quality assurance can in general be viewed as more 
credible than classifications that do not employ these measures to 
optimize accuracy.
       niosh actions in response to center for public integrity/
                            abc news reports
    Even though NIOSH has a limited role and a limited ability to 
address chest radiograph classifications performed in non-NIOSH 
settings, we still want to do what we can to promote high quality, 
accurate classifications of chest radiographs. We also believe that B 
Readers should demonstrate high levels of ethics and integrity, which 
is why we developed a B Reader Code of Ethics. Devotion to accurate 
classification of chest images is an important feature of the Code. In 
view of this, NIOSH was disturbed by evidence presented in the Center 
for Public Integrity and ABC News reports suggesting that a B Reader 
involved in Black Lung compensation cases systematically misclassified 
chest radiographs. NIOSH has taken several actions in response to these 
reports.
    First, when the particular B Reader's employer, Johns Hopkins 
University, announced that they were suspending their program of 
providing expert medical testimony for legal firms, NIOSH offered Johns 
Hopkins help with their internal investigation. NIOSH subsequently 
answered questions and provided information to help them with their 
investigation.
    Second, in reading the Center for Public Integrity report and 
viewing the companion report on ABC News, NIOSH noted that the 
particular B Reader reportedly argued he should not classify clearly 
visible chest radiographic changes because he thought they had a cause 
other than pneumoconiosis. As I have previously described, this is not 
consistent with the purpose of the ILO Classification System, which 
provides a standardized way to record the changes that can be plainly 
seen on a radiograph. In response, NIOSH obtained approval from the 
Office of Management and Budget (OMB) to revise the NIOSH form which 
many B Readers use in non-NIOSH settings to report the results of chest 
radiograph classifications. The new form clearly requires that all 
findings described by the ILO Classification System that are seen on 
the chest radiograph must be classified regardless of opinions about 
underlying cause, which are entered elsewhere on the form.
    Third, NIOSH has been in discussions with the Department of Labor 
(DOL), Office of Workers' Compensation Programs (OWCP), which operates 
the Black Lung Compensation Program about the feasibility of 
implementing a quality assurance program to determine whether B Readers 
are providing accurate classifications of chest radiographs for 
consideration in compensation proceedings. NIOSH and OWCP have agreed 
in principle to establish the program and are currently evaluating 
technical issues such as the availability of chest radiographic images 
for re-classification, appropriate methods for using re-classifications 
to assess B Reader performance, and how this information will be used 
for quality improvement. It should be noted that the quality assurance 
program will operate separately from the process of adjudicating 
individual compensation claims. We hope to implement the quality 
assurance program during fiscal year 2015.
    Fourth, for many years, NIOSH has had a policy that if provided 
with a written complaint about the ethics or competence of an 
individual B Reader that performed services in non-NIOSH settings, 
NIOSH would refer the complaint to the appropriate State Medical 
Licensing Board. The reasoning for this policy was that the practice of 
medicine in the United States is regulated at the State level and thus 
State Medical Licensing Boards have investigative authorities in non-
NIOSH settings that are not available to NIOSH. State Boards also have 
the ability to restrict or suspend a physician's privilege to practice 
medicine based on the outcome of an investigation. It should be noted 
that since the B Reader Certification Program was established in 1978, 
we are aware of only two B Readers who have lost their licenses to 
practice medicine because of the way they classified chest radiographs. 
In response to the current situation, NIOSH is taking the additional 
action of formally offering our technical assistance to any State 
Medical Licensing Board that makes the decision to investigate chest 
radiograph classifications performed by a B Reader. NIOSH will also 
consider requests for technical assistance from other government 
agencies that wish to develop quality assurance programs or to 
investigate the performance of individual B Readers in chest image 
classification.
                               conclusion
    Since the current NIOSH B Reader Certification Program was 
established in 1978, it has played a critical role in ensuring the 
availability of a pool of physicians able to classify chest radiographs 
for the NIOSH Coal Workers' Health Surveillance Program using the ILO 
system. Part 37 also specifies that readers be employed in a way that 
favors mainstream classifications and minimizes the impact of outliers, 
thus optimizing the accuracy of chest radiograph classifications used 
by the surveillance program. Because the B Reader Certification Program 
is unique in providing formal documentation of the competency of 
physicians to classify chest radiographs using the ILO system, B 
Readers are often sought after to perform classifications in non-NIOSH 
settings. These settings do not always follow NIOSH recommendations to 
ensure high quality classifications.
    NIOSH has taken action to help DOL in its efforts to improve the 
quality of classifications submitted for consideration by the Black 
Lung Compensation Program, and, within our ability to do so, NIOSH 
stands ready to assist others undertaking similar efforts in other non-
NIOSH settings.
    Thank you for the opportunity to provide this testimony. I am 
pleased to answer any questions you may have.

    Senator Casey. Thank you, Doctor. We'll start a round of 
questions.
    Deputy Secretary Lu, I wanted to ask you about the question 
of resources. We've had some discussion about this. I've 
noticed that over time, especially in the last several months, 
and really within the last year, when you consider the 
additional responsibilities that you have to deal with as well 
as the resources you're going to need because of the new 
initiatives that you've embarked upon, I believe that you're 
going to need substantially more resources for the work that 
you're doing.
    We know that based upon data from the Department, we 
estimate that approximately $10 million in funding above the 
president's fiscal year 2015 budget request for the--and I'm 
talking now about the Office of Administrative Law Judges--
would be necessary to begin reducing and ultimately trying to 
eliminate the backlog. So I'd ask you, in particular, will you 
continue to work with us to ensure, not just to try, but to 
ensure that the Department has the resources to adequately 
address the backlog of cases?
    Mr. Lu. Mr. Chairman, I'd like to first of all commend you 
on your longstanding leadership on this issue. As I indicated 
in my opening statement, we have asked for an 11.5 percent 
increase in fiscal year 2015 for the ALJs. But as you've 
recognized, the ALJ caseload is increasing both because of the 
Dr. Wheeler cases and because of other factors like greater 
publicity and greater outreach. So the Department is absolutely 
interested in working with you and your staff to ensure that we 
have sufficient resources on this important issue.
    Senator Casey. We've got some work to do on that, and I'm 
grateful for your willingness to work with us on that.
    Solicitor Smith, I wanted to ask you about the allegation 
that's often made that miners are allowed to file as many 
claims as they like no matter how many times their claims are 
denied. Can you describe how the process for resubmitting a 
previously denied claim differs based on whether or not it 
falls within the 1-year time limit?
    Ms. Smith. Yes, Senator. Thank you. This is an issue which 
many courts have looked at, and all of them have felt that the 
rule is proper. There are two possibilities. If a miner has 
been denied a claim within a year he may move to reopen that 
claim on the basis of there's a mistake or his condition has 
changed.
    I'd like to point out that a coal mine operator also has 
that ability to ask for a modification of a claim where 
benefits were awarded within 1 year after the last payment of 
benefits. Both of those re-opening have to be on the basis of 
either a mistake or a change in condition. If an award is 
granted or denied, it is on the basis of the current claim.
    On the other hand, after 1 year, a miner may file a claim 
for new benefits. It is a new claim. It is a new time period. 
That's because, as Dr. Howard has pointed out, black lung 
disease can be progressive and latent even after there's been a 
cessation of exposure to coal mine dust.
    What a miner must prove in that situation as a threshold 
matter is that there has been a change in some condition of 
eligibility since the last claim. If they can't prove that as a 
threshold matter, the claim is denied. If then they can prove 
that the change in condition has made it clear that they have 
black lung disease and it's totally disabling, they would be 
able to get an award of benefits.
    But that award of benefits does not go back to the previous 
time. It only goes back from when that new claim has been made. 
Again, this is because the black lung can be progressive and 
latent. So if there are changes in conditions and now the miner 
is eligible when they may not have been eligible before, we 
don't want to bar them forever when they have become eligible.
    Senator Casey. You're talking about the situations where 
you have a new claim.
    Ms. Smith. Right. That's a new claim. It's not a reopening 
of an old claim. It does not go back to the time period of the 
old claim. Once the old claim has been denied for over a year, 
it's barred by res judicata. You cannot reopen that claim. But 
if you can prove that you have a change in your condition and 
you are now eligible, you can file a new claim for a new time 
period.
    Senator Casey. Before we wrap this up, why don't we put on 
the record your best definition of res judicata.
    Ms. Smith. Res judicata means that the claim is final and 
you cannot reopen it.
    Senator Casey. Thanks very much.
    Senator Isakson.
    Senator Isakson. Thank you, Mr. Chairman. I have one 
question for Dr. Howard.
    Since the CPI report was published, NIOSH has created a new 
form which requires that all findings described by the ILO 
classification system that are seen on the chest radiograph be 
classified--and you mentioned this in your opening remarks--
regardless of opinions about the underlying cause. My question 
is this: Under the new system, how would a physician be able to 
exercise their professional judgment or annotate their own 
medical conclusion regarding other causes if this is 
classified?
    Dr. Howard. Thank you, Senator Isakson. They can certainly 
do that by providing their own medical interpretation of the 
findings that they see. So there are two parts to the process 
of looking at a chest x-ray. One is to assess what they see 
visibly in terms of the profusion score, et cetera, all the 
findings on the ILO form, and those have to be recorded. Then 
the second process is their medical interpretation of those 
findings. So they can do both.
    Senator Isakson. So if it's classified, what does that 
classification mean? What restriction does that imply?
    Dr. Howard. The restriction on classification, the actual 
reading of what's on the x-ray, is within the bounds of the ILO 
classification system. The interpretation of what is seen on 
the x-ray is a medical activity, a diagnostic activity. So the 
physician can draw his or her own conclusions about what they 
see. But the accuracy of what they see is what we certify, what 
they're certified for as a B Reader.
    Senator Isakson. I don't want to belabor this, but this is 
an important question, I think. So the ILO classification 
system sets out the parameters by which a doctor may make a 
medical determination of the radiograph?
    Dr. Howard. No. The ILO classification system sets out the 
parameters for looking at the visible findings on the x-ray and 
has a number of different categories that the physician checks 
or does not check. That's what we train physicians to do, to 
match that with the ILO classification system. And then at the 
end of that process, they can add their interpretation about 
what they've seen. But the two are different.
    Senator Isakson. So they're not professionally restricted 
from----
    Dr. Howard. No. We do not control the practice of medicine, 
per se. But we do certify people on the accuracy with which 
they read an x-ray according to the ILO classification system.
    Senator Isakson. Thank you, Dr. Howard. That's my only 
question.
    Senator Casey. Thank you, Senator Isakson.
    Senator Harkin.

                  Opening Statement of Senator Harkin

    The Chairman. Thank you very much, Mr. Chairman. First, let 
me commend you for your great leadership on this very important 
issue. I thank Senator Isakson for being a good partner in 
helping to try to change some of the ways we do business with 
regard to coal miners.
    We often talk about how coal produces some of the cheapest 
electricity and energy that we have in the United States. 
That's true for a number of reasons. One is because the forces 
of nature created the coal over hundreds of millions of years.
    But I think it's also true because those who mine the coal 
have not been adequately compensated in the last century or so 
that we've been mining coal in this country. They're 
compensated both in terms of wages and salaries, which are much 
better now because of the work of the United Mine Workers and 
others. But the other thing is the compensation that goes to 
these miners who develop serious health problems because of 
mining coal.
    Many of the good producers, good coal mine owners, have 
taken great steps to keep the dust down to provide that miners 
do not inhale a lot of coal dust when they're mining. But 
there's still a lot of bad actors out there, too, who have not 
done that.
    The Department has now issued a new rule--or I think you're 
in rulemaking now--for keeping that level of dust down. Is that 
correct, Mr. Lu?
    Mr. Lu. That is correct.
    The Chairman. When will we see that rule?
    Ms. Smith. That rule is effective August 1st.
    The Chairman. So it is effective August 1st?
    Ms. Smith. Yes.
    The Chairman. I'll be checking to see how that works. Coal 
companies claim that costs them a lot of money. Well, of 
course, it does. But what's the cost of a miner that lives out 
the remainder of his life for 30 or 40 years unable to breathe, 
hooked up to an oxygen machine, unable to even do some of the 
most rudimentary things of daily life.
    As the chairman knows, I come at this from a personal 
standpoint. My father mined coal for over 23 years in Iowa. A 
lot of people don't know that Iowa had a lot of coal. We were 
once the second largest coal producing State in the Nation. 
John L. Lewis, the great coal mine leader, came from Iowa, not 
from West Virginia or the chairman's State, Pennsylvania.
    But in those days, they had nothing. I mean, they worked 
underground, and they had nothing. They didn't call it black 
lung. I never heard that until I came here. But we always 
called it the miner's cough, the miner's lung, and that's just 
what they had. They might not have been totally disabled, but, 
boy, their lives were not worth very much in terms of what they 
could do physically as they reached into their fifties, 
sixties, and seventies. So I'm glad that we got the rule out.
    Second, the chairman hit upon the backlog of cases. But I 
also want to know what the Department basically--you touched on 
that, Mr. Lu, in your testimony--how we're leveling the playing 
field. A lot of times, these miners don't have a lot of money. 
They don't have adequate counsel. They file their claim. It 
goes to Dr. Wheeler, who I hope is not a part of our program 
any longer. But they don't have any recourse to adequate 
counsel.
    How are we going to help those individuals who live in 
remote places, small communities? How are we going to help them 
level that playing field?
    Maybe Ms. Smith from the solicitor's office could respond.
    Ms. Smith. Senator, there's a few things that we've been 
doing lately. We have really been thinking about this, what we 
can do for miners who do not have counsel, which is why in our 
pilot program, where we have a miner who has filed a claim and 
he's unrepresented, we have an initial determination that he is 
eligible for benefits--in order to strengthen his evidence, 
because he does not have counsel--if there is evidence to the 
contrary, we are sending that evidence back to his original 
doctor to reassess it, to come up with up-to-date medical 
evidence, something that unrepresented miners would not do on 
their own. That's one thing that we're doing to try to 
strengthen the medical evidence.
    Second, at the ALJ level, in the same circumstances where 
we have an unrepresented miner, I have instructed officers in 
the solicitor's office, who normally do not get involved in 
these cases, to look for those cases, to get the medical 
evidence which may have been submitted at the ALJ level, and 
send it back to the original doctor. Sometimes the original 
doctor's evidence is 2 or 3 years old, so it's considered 
outdated--send it back and get more evidence.
    The Chairman. What's the backlog? I don't even know that 
number. Do you know the number, Chris?
    Mr. Lu. Senator, we can get you the number. What I can tell 
you is that the number of cases that have been filed has 
increased from about 6,400 in fiscal year 2013. We believe it 
will be about 7,400 in fiscal year 2014. So the number of 
claims filed has increased by about 1,000, and we can get you 
more detailed information on what the backlog numbers are.
    The Chairman. Counsel has told us there's probably around 
14,000. Does that sound about right?
    Mr. Lu. I think that's about right.
    The Chairman. I hope and trust that we're going to be 
providing the kind of support, legal support and otherwise, so 
that we don't just wait until they all die off. They deserve 
compensation, and they deserve it now.
    Thank you.
    [The prepared statement of Senator Harkin follows:]

                  Prepared Statement of Senator Harkin

    I would like to thank Senator Casey for holding this 
important hearing so that we can learn more about the struggles 
that coal miners and their families face when filing for 
benefits under the Black Lung Benefits Act. I would also like 
to thank my colleagues Senators Rockefeller and Manchin and 
Congressman George Miller for all their work helping us try to 
address the issues raised by the Center for Public Integrity 
and others. It is my hope that this hearing shines a brighter 
light on these issues and helps inform our work on legislation 
to try to restore justice for our Nation's coal miners.
    Although we don't really mine coal in Iowa anymore, 
protecting the health, safety, and benefits of our Nation's 
miners has always been important to me because of my father, 
who was a coal miner. The topic of today's hearing--black lung 
or what we used to call miners' lung--is personal for me 
because I know what it is like to see a loved one fight for 
breath after years of working in clouds of coal dust and 
struggle to support a family.
    My father's work as a coal miner was long before the 
passage of the Coal or Mine Acts and the establishment of a 
benefits program for miners stricken with debilitating black 
lung. When my father reached the age of 65 in 1951--and I was 
11 years old--his health was pretty poor from his years 
laboring in the mines. At most, he could work odd jobs like 
painting houses or fixing things up, but even that was hard.
    His total Social Security check at that time was about $120 
a month, the sole source of income for our family. We had no 
outside income, no savings, no stocks, just the little house 
that we lived in. My father would go and get his lungs cleared 
out at Mercy Hospital in Des Moines because the nuns would let 
him pay what he could when he could. He was really happy when 
he finally got his Medicare card because he didn't have to rely 
on charity anymore, and he felt like that was something that he 
earned from his years of hard work.
    Although conditions in the mining industry have improved 
from my father's time, many of the same issues remain--coal 
miners are still getting sick just from going to work and even 
though there is a system in place to provide them benefits and 
healthcare when they become disabled, many still struggle to 
take care of their families.
    In reading the remarkable investigative reports that tell 
the stories of countless coal miners and their families who 
were denied justice, it seems to me that one common theme 
explains it all--greed.
    For decades, coal miners have gone underground and done the 
most dangerous of jobs so they could provide for their families 
and help build America into the economic power it is today. 
Some were lucky to have a union looking out for them, while 
others had to fend for themselves.
    I can't help but believe that greed and the desire to reap 
large profits lead some coal companies to fight against miners 
and the government every time issues regarding miner safety and 
health and benefits are debated. Not all, but historically, far 
too many coal operators have put profits ahead of the safety 
and health of the miners they employ. A recent example of this 
was the terrible disaster at the Upper Big Branch Mine that 
took the lives of 29 men. When we tried to pass a reasonable 
piece of legislation--the Byrd bill--to strengthen our mine 
safety laws to address the problems raised by the 
investigations, we were blocked by the coal industry and their 
allies in Congress.
    For years, some of these same companies have worked 
together with allies in the legal and medical communities to 
deny miners and their families justice and a fair shot to 
receive benefits to which they are entitled. Sadly, it is a 
playbook that has become all too familiar, use every trick and 
resource advantage to game the system long enough for miners to 
give up hope and fight the government tooth and nail when it 
takes actions to protect miners that could eat into the 
industry's profits.
    Although this hearing is focused on black lung benefits, I 
would be remiss if I didn't also mention how pleased I was when 
the Department of Labor's Mine Safety and Health Administration 
announced in April that it had finalized a strong rule to 
prevent miners from developing black lung disease in the first 
place. I strongly support the Department's efforts to combat 
black lung and hope that once these protections are in effect, 
the miners that make up today's workforce won't suffer from 
black lung and need to file claims for benefits in the first 
place.
    In closing, I would like to commend the Department of Labor 
for the actions that it has already taken to address the 
problems plaguing the black lung benefits program, including 
the pilot program to help strengthen miners' medical evidence 
and expand legal assistance. Moreover, I was encouraged that 
DOL recently announced intentions to promulgate a regulation to 
reform the black lung program. Based off the information in the 
reports, the testimony from today's hearing, and input from 
miners and other stakeholders, it is my hope that the 
Department puts forth a robust rule to make the system more 
efficient and fair. I would also like to thank the National 
Institute for Occupational Safety and Health (NIOSH) for 
participating in today's hearing and for all the great research 
that it produces to help make miners healthier and safer on the 
job.
    At the end of the day, if a miner is willing to travel into 
the bowels of the earth every day knowing that he may one day 
suffer from a lung disease, the least we can do is make sure he 
has a fair shot at justice and that the cards aren't stacked 
against him when he applies for benefits to support his family.
    Senator Casey. Mr. Chairman, thank you very much.
    I know we're running out of time for this panel. But I 
wanted to ask Dr. Howard a question about the prevalence of 
black lung disease. We sometimes hear people assert that the 
approval rates for black lung benefits are driven more by 
public policy considerations than by the actual circumstances 
or the actual incidence, I should say, of dust induced lung 
disease.
    Based upon your knowledge, what's the scientific evidence, 
as best you can summarize it, about the prevalence of black 
lung disease?
    Dr. Howard. Thank you, Senator. We publish at NIOSH 5-year 
prevalence rates. We wait until 20 years or more, because this 
is a slow, progressive disease. Starting back in the 5-year 
time period of 1970 to 1974, the prevalence rate was 29.3 
percent. It dropped down considerably to around 3.2 percent, 
which was the lowest, in the period 1995 through 1999. And then 
recently, 2000 to 2004, it rose to 6.1 percent, and in 2005 to 
2009, which is our last 5-year prevalence period that we're 
reporting on currently, it is 6.4 percent.
    We're going to complete our most recent 5-year report soon, 
and we can provide you with those figures.
    Suffice it to say that prevalence rates have risen, as you 
said. They have spiked and predominantly among underground coal 
miners in the Central Appalachian region of the United States 
and in smaller mines, although coal workers' pneumoconiosis 
continues to be a nationwide problem.
    We don't have any data with regard to surface miners, and 
we're awaiting, as Ms. Smith pointed out, the new MSHA coal 
dust rule, which goes into effect August 1st. At that time, 
surface coal miners will be covered, and we'll be assessing the 
prevalence of coal workers' pneumoconiosis in that population 
also.
    Senator Casey. Doctor, I want to make sure I got this 
right. What years was the prevalence 3 percent?
    Dr. Howard. That was the lowest period of time, and that 
was 1995 through 1999. Since that time, throughout the decade 
of 2000, it has risen. Our latest numbers are 6.4 percent 
prevalence.
    Senator Casey. So more than double.
    Dr. Howard. Exactly.
    Senator Casey. Thank you. I'll have more questions for you 
for the record after the hearing, because I know we've got to 
transition here.
    Before I wrap up, Solicitor Smith, I wanted to ask you 
about one part in your prepared testimony, where the Department 
states, ``Survivors whose claims were denied more than 1 year 
ago have no avenue for relief.'' I want to ask you what that 
means. Does it mean that survivors' claims that were denied 
using evidence from Dr. Wheeler cannot be either reopened or 
modified if they were denied more than 1 year ago? And does it 
also mean that these survivors are unable under current 
statutes to ever receive benefits?
    Ms. Smith. Unfortunately, yes, Senator. I will have to go 
back and give you my plain language view of res judicata. I'll 
try to explain that. Basically, a survivor's claim that was 
denied more than a year ago, as I discussed, could not be 
reopened. Then the question is could they file a new claim.
    The basis of a miner filing a claim is that his condition 
could have changed since then. However, the issue in a 
survivor's claim is whether the death of the coal miner was 
caused by black lung disease. Because the coal miner was dead 
and is dead, there is no change in the condition of his death. 
So under the principals of res judicata, it's final. There's 
not a new issue to be dealt with.
    This could be taken care of by legislation, which could 
allow a survivor whose claim was denied more than a year ago 
and who has Dr. Wheeler evidence to be basically legislatively 
relieved from the bar of finality and to reopen a claim, but it 
would have to be done through legislation.
    It could also be done for miners through legislation. As I 
discussed with you before, a new claim for a miner is for a new 
time period. But in that situation, if they were relieved from 
that bar, they could go back to the date of their original 
claim. Right now, they cannot do that when they file a new 
claim.
    Senator Casey. Thank you. So you've told us we need 
statutory change.
    Ms. Smith. Exactly.
    Senator Casey. Thank you very much, and I know each of us 
will probably have more questions, but we're going to 
transition.
    Senator Casey. I want to thank all three of our witnesses 
for being here and for your testimony and for your public 
service.
    We will go to panel No. 2, and I'll begin the introductions 
while our witnesses are taking their seats. I'll just run 
through the biographies for each so we can continue to move 
forward.
    First, John Cline. John Cline is an attorney in Pitney 
View, WV, who specializes in the representation of Federal 
black lung claimants. Mr. Cline earned his J.D. degree from the 
West Virginia College of Law in Morgantown, WV.
    Prior to starting private practice in 2005, he spent many 
years working on behalf of coal miners as a VISTA volunteer, 
Black Lung Association member, benefits counselor, and lay 
representative. Mr. Cline grew up in East Aurora, New York, and 
is married to his wife, Tammy, and is the father of three 
children.
    Mr. Cline, thank you for being here.
    Dr. John Parker has been practicing at West Virginia 
University since 1985. He has published numerous peer-reviewed 
studies and textbook chapters on occupational lung disease. He 
has consulted for the World Health Organization and the 
International Labor Office on issues related to respiratory 
diseases and traveled the world over doing teaching and 
training related to occupational lung disease.
    He is currently a professor and chief of Pulmonary and 
Critical Care Medicine at West Virginia University. Dr. Parker 
is married to his wife, Christine, and has two children, Josh 
and Katie.
    Doctor, thank you for being with us.
    Robert Bailey, Jr., is a retired coal miner and member of 
the United Mine Workers of America with complicated black lung 
disease. He began working in the coal mines in July 1972 after 
graduating from high school. He retired after 36\1/2\ years due 
to the debilitating effects of black lung disease.
    Mr. Bailey was born in Bluefield, WV, and has been married 
to Brenda Bailey for 41 years. They have three children and 
nine grandchildren.
    Mr. Bailey, thank you for being with us.
    Robert Briscoe, our fourth witness on this panel, is a 
principal and senior consultant with the New York office of the 
actuarial firm of Milliman. Mr. Briscoe specializes in the 
valuation and cost determination of individual large and long-
term workers' compensation claims, particularly occupational 
disease.
    He has worked on analysis of compensation for occupational 
lung disease since the early 1970s. He is also Director of the 
American Society of Workers' Compensation Professionals and New 
York Workers' Compensation Policy Institute.
    Mr. Briscoe, thank you very much.
    I'll ask our witnesses to keep your testimonies to 5 
minutes, and we'll do a round of questions after that.
    Mr. Cline, you can start.

       STATEMENT OF JOHN CLINE, ATTORNEY, PINEY VIEW, WV

    Mr. Cline. Thank you, Chairman Casey, Ranking Member 
Isakson, Senator Harkin.
    As you know, the Coal Mine Health and Safety Act is 
intended to protect the health and safety of working miners and 
also to provide modest benefits when miners become totally 
disabled from black lung disease. Like all workers' 
compensation programs, it is remedial and intended to provide 
benefits at the time of need.
    But in order to qualify, a disabled miner or widow must 
engage in fairly complex, adversarial litigation and must 
prevail against large coal companies with experienced attorneys 
and significantly greater resources. In addition, as revealed 
by the Pulitzer prize winning articles by Chris Hamby and the 
Center for Public Integrity plus the news coverage of ABC, the 
adversarial process is not only complex, but it has been abused 
by deceptive tactics by coal companies and their attorneys, or 
at least some of them.
    In my written statement, I provided five examples, and I 
would like to focus my remarks today on the case of Gary Fox, 
who I represented near the end of his life. In short, Mr. Fox 
was born in 1950. After high school, he entered the Army and 
served in Vietnam. He worked as a coal miner for 32 years, from 
1974 to 2006.
    Three years later, he died of complicated black lung at the 
age of 58. He had what is being recognized now as a very 
aggressive form of complicated pneumoconiosis that seems to 
progress more rapidly. But if we take a closer look, there 
could have been a different outcome, in my opinion, if the 
purposes of the act had not been subverted.
    In 1997, the West Virginia Occupational Pneumoconiosis 
Board issued a report to both Mr. Fox and his employer, Elk Run 
Coal Company, stating that Mr. Fox's x-ray findings were 
consistent with progressive massive fibrosis, another term for 
complicated black lung. However, Mr. Fox's treating physicians 
also were concerned about the possibility of lung cancer, and 
they removed a 5 centimeter mass from his right upper lung 
that, thankfully, was not cancer, but the local pathologist did 
not diagnosis black lung, even though he said it contained 
numerous anthracotic deposits.
    Mr. Fox was still working but realized that he needed to 
get out of the dust and filed a claim for Federal black lung 
benefits. His claim was approved, but Elk Run appealed. Elk 
Run, who was represented by experienced attorneys from the law 
firm of Jackson Kelly, hired two expert pathologists who both 
found that the samples of Mr. Fox's lung tissue actually were 
consistent with complicated black lung.
    Lawyers and judges familiar with black lung litigation know 
that pathology is the gold standard and that Elk Run's two 
expert pathology reports met the requirements for benefits 
under the act. In other words, Elk Run knew that Mr. Fox 
qualified. But Elk Run's attorneys not only withheld those two 
reports, but also used the discredited opinion of the local 
pathologist to convince four reviewing expert pulmonologists 
and the administrative law judge that Mr. Fox did not have 
black lung at all.
    Without black lung benefits, Mr. Fox continued working 
until 2006, when he was too short of breath to continue. When 
Elk Run's deception was later disclosed to the administrative 
law judge who had denied his earlier claim, the judge aptly 
said that Elk Run's actions ``were really misleading the court, 
misleading the witnesses, and tainting the witnesses' 
testimony.'' So if Mr. Fox had prevailed in his first claim and 
been able to get out of the dust 8 years sooner as the act 
intended, his life may have been prolonged.
    In response to Mr. Fox's case and others, as mentioned 
earlier, the Department has announced that it will consider a 
new regulation requiring disclosure of medical evidence, ``to 
ensure that miners have full access to information about their 
health and that accurate benefit determinations are made.'' I 
would add that in a program that is intended to protect the 
health of miners, it makes no sense to withhold medical 
information that would adversely affect their health. Requiring 
the disclosure is the only way, I think, to properly protect 
the health of miners.
    Mr. Fox asked me to pursue this issue. He knew it wouldn't 
benefit him, but he dearly hoped that it would help others not 
to have to go through the same experience.
    I just want to make a brief comment about the problem of 
administrative delays, particularly at the ALJ level, that are 
creating a great deal of hardship for claimants waiting for 
benefits and making it even more difficult for them to get 
legal representation. There is just an urgent need for more 
ALJs, more clerks, and more up-to-date technology.
    Thank you for considering my remarks.
    [The prepared statement of Mr. Cline follows:]

                    Prepared Statement of John Cline

    Chairman Casey, Ranking Member Isakson, and Senators, my name is 
John Cline, and I have represented miners and widows with Federal black 
lung claims as a lay representative from 1993 to 2005 and as a lawyer 
from 2005 to the present.
                    the black lung benefits program
    When President Nixon submitted the Coal Mine Health & Safety Act to 
Congress in 1969, he recognized that:

          ``[d]eath in the mines can be as sudden as an explosion or a 
        collapse of a roof and ribs, or it comes insidiously from 
        pneumoconiosis or black lung disease.'' \1\
---------------------------------------------------------------------------
    \1\ See http:/www/msha.gov/SOLICITOR/CoalAct/69hous.htm at 3-4.
---------------------------------------------------------------------------
The purpose of the Act was to protect miners on the job and also to 
provide modest benefits to coal miners and their dependents in the 
event of a miner's death or total disability from black lung.
    Like other workers' compensation programs, it is remedial and 
intended to provide benefits at the time of need. In order to qualify 
for the benefits, however, a disabled miner or widow must engage in 
fairly complex, adversarial litigation and must prevail against large 
coal companies or insurance companies with experienced lawyers and 
significantly more financial resources.\2\ As revealed in the Pulitzer 
Prize winning articles by Chris Hamby and the Center for Public 
Integrity, this adversarial process is not only complex but has been 
significantly abused by some coal companies and their attorneys.
---------------------------------------------------------------------------
    \2\ As stated by a long term defense attorney in an article 
published in the West Virginia Law Review in 2003, ``Currently . . . 
[Federal black lung] claimants must confront the vastly superior 
economic resources of their adversaries: coal mine operators and their 
insurance carriers. Often, these parties generate medical evidence in 
such volume that it overwhelms the evidence supporting entitlement that 
claimants can procure.'' William S. Mattingly, Id Due Process is a Big 
Tent, Why Do Some Feel Excluded from the Big Top? 15 W. Va. L. Rev. 
791, 792 (2003).
    See also Brian C. Murchison, Due Process, Black Lung, and Shaping 
of Administrative Justice, 54 Admin. L. Rev. 1025, 1030 (2002).
---------------------------------------------------------------------------
                    the black lung case of gary fox
    In particular, the black lung case of Gary Fox that is featured in 
the first article by Chris Hamby is a tragic example of how the purpose 
of the Act was subverted by unscrupulous legal tactics. In short,

     Mr. Fox was born in 1950.
     After high school, he went into the Army and served in 
Vietnam.
     He worked as a coal miner for 32 years from 1974 to 2006, 
and
     Three years later, he died of complicated black lung at 
the age of 58.
     He was married and had a daughter, but didn't live long 
enough to see either one of his two grandchildren.

    But, if we take a closer look, there is an underlying story about 
how Mr. Fox tried to get out of the dust 7 years earlier by filing a 
claim for Federal black lung benefits and how his employer, Elk Run 
Coal Company (which is a division of A.T. Massey) defeated his claim by 
misleading its own experts and the Court:

     In 1997, Mr. Fox filed a claim for State black lung 
benefits, and the West Virginia Occupational Pneumoconiosis Board 
issued a report to both Mr. Fox and to Elk Run that said he had x-ray 
findings ``consistent with progressive massive fibrosis,'' which is 
another term for complicated pneumoconiosis or complicated black lung.
     Mr. Fox continued to work because he needed to support his 
family, but in 1998, his physician became concerned about the 
possibility of lung cancer. A lobectomy was performed to remove a 5 cm 
mass from his right upper lung. The local pathologist who examined the 
tissue samples said it was not cancer and described the mass as a 
psuedotumor with ``numerous anthracotic deposits.''
     After recovering from the lung surgery, Mr. Fox went back 
to work in the mines but realized that he needed to get out of the dust 
before his breathing got worse. This time he filed a Federal black lung 
claim because the Federal program has an irrebuttable presumption of 
total disability when the miner has progressive massive fibrosis or 
complicated black lung. If the West Virginia Occupational 
Pneumoconiosis Board correctly found that he had ``progressive massive 
fibrosis,'' the Federal program would provide a modest monthly income 
to help support his family and also provide medical benefits for his 
declining pulmonary condition. His claim was initially approved by the 
DOL District Director, but Elk Run appealed to an administrative law 
judge.
     Mr. Fox tried unsuccessfully to find a lawyer, so he 
appeared without representation. Elk Run, however, was represented by 
experienced attorneys from the law firm of Jackson Kelly who hired two 
expert pathologists to review the pathology slides from Mr. Fox's 
lobectomy along with his work record, and additional radiographic 
readings. Both experts found that the pathology was consistent with 
complicated pneumoconiosis and not a pseudotumor. Moreover, one of the 
pathologists reviewed an x-ray taken after the lobectomy and noted that 
Mr. Fox had radiographic evidence of even more large opacities that 
were consistent with complicated pneumoconiosis.
     Any lawyer familiar with Federal black lung claims would 
know that pathology is the ``gold standard'' for determining the 
presence of complicated pneumoconiosis and also would recognize that 
these two expert pathology reports supported Mr. Fox's entitlement to 
benefits. However, despite being advised by its own expert pathologists 
that Mr. Fox had complicated coal workers' pneumoconiosis and not a 
pseudotumor as the local pathologist had opined, Elk Run's lawyers 
presented the local pathologist's discredited report to its four 
reviewing pulmonologists and to the administrative law judge as though 
it was ``all'' of the pathology evidence.
     Based on the skewed opinions of those four pulmonologists 
that Mr. Fox did not have pneumoconiosis plus a number of negative x-
ray readings by Dr. Wheeler at Johns Hopkins, the judge had no basis 
for awarding benefits and denied Mr. Fox's claim.
     Without the black lung benefits, Mr. Fox continued working 
in order to support his family until 2006 when he was too short of 
breath to continue. He filed again for Federal black lung benefits and 
eventually prevailed.
     During the course of Mr. Fox's second claim, I was his 
lawyer, and Elk Run went to extraordinary lengths to hide its deception 
in the prior claim, but eventually, after exhausting all of its 
options, Elk Run finally had to disclose those two expert pathology 
reports that would have entitled Mr. Fox to benefits in his previous 
claim.
     After Elk Run's tactics were exposed, the judge who was 
misled in the prior claim aptly said, ``That's really misleading the 
Court. It's misleading the witnesses. It's tainting the witness 
testimony.'' \3\
---------------------------------------------------------------------------
    \3\ See http://www.publicintegrity.org/2013/10/29/13585/coal-
industrys-go-law-firm-withheld-evidence-black-lung-expense-sick-miners.
---------------------------------------------------------------------------
     If Mr. Fox had been able to get out of the dust back in 
1999, as the Act intended, he might have lived long enough to see his 
two grandchildren.
                 other examples of employer misconduct
    Unfortunately, Mr. Fox's case is not an isolated example of 
deception by employers in Federal black lung claims. As Chris Hamby and 
the Center for Public Integrity disclosed, there have been numerous 
other examples:

    1. In the case of Elmer Daugherty (a miner for 42 years), the 
Jackson Kelly attorney representing his employer, Westmoreland Coal 
Company, submitted the ``exam report of Dr. George Zaldivar'' as if it 
were the entire report but had removed Dr. Zaldivar's narrative finding 
of complicated pneumoconiosis. The West Virginia Supreme Court 
eventually determined that the lawyer's conduct involved ``dishonesty, 
fraud, deceit, or misrepresentation.'' \4\
---------------------------------------------------------------------------
    \4\ See Lawyer Disciplinary Bd. v. Smoot, 716 S.E.2d 491, 506 (W. 
Va. 2010).
---------------------------------------------------------------------------
    2. The same tactic was used in the case of Charles Caldwell and 
presumably was used against other unsuspecting miners because Jackson 
Kelly argued vigorously that the practice was permissible.
    3. In the case of Clarence Carroll (a miner for 45 years), the 
Jackson Kelly attorney for Westmoreland Coal Company submitted the 
``report of Dr. Harold B. Spitz containing his interpretation of [a 
single] x-ray film'' as if it were Dr. Spitz's entire reading of that 
x-ray but did not disclose the fact that Dr. Spitz had read the same x-
ray 2\1/2\ years earlier as part of a serial reading of five x-rays 
taken over several years. Dr. Spitz's single reading said the x-ray was 
consistent with a high profusion of simple pneumoconiosis and the 
coalescence of smaller opacities whereas his more probative serial 
reading was consistent with complicated pneumoconiosis. As in the 
Daugherty and Caldwell cases, Jackson Kelly presented a misleading 
portion of a physician's opinion as though it was his entire opinion.
    4. In the case of Norman Eller (a miner for 39 years), Jackson 
Kelly was told by a leading expert that a set of chest CT images was 
incomplete and insufficient to exclude coal workers' pneumoconiosis. 
Nevertheless, Jackson Kelly obtained and submitted two interpretations 
of the same incomplete CT images that were negative for coal workers' 
pneumoconiosis. Like the Fox case, this intentional submission of 
unreliable evidence is misleading to the court.
    5. And, more recently, we also have learned about an x-ray service 
that will obtain radiographic readings for employers and retain the 
ones that would favor the claimant.
    Thus, there is ample evidence that the intentional skewing of so-
called ``medical'' opinions by employers is fairly common and rarely 
discovered because the practice goes undetected whenever:

    1. The claimant is pro se and does not know how to pursue 
discovery,
    2. The claimant is represented by an attorney who does not pursue 
discovery,
    3. The claimant has an attorney who pursues discovery, but the 
claimant's motion to compel discovery is denied by an ALJ, \5\ or
---------------------------------------------------------------------------
    \5\ See Keener v. Peerless Eagle Coal Co., 23 BLR 1-233, 1-243 
(Jan. 26, 2007).
---------------------------------------------------------------------------
    4. The claimant has an attorney who pursues discovery; the ALJ 
grants a motion to compel discovery; but then, the employer withdraws 
its challenge to the claim and accepts liability in order to avoid 
discovery.
    Moreover, there is no practical remedy, particularly when an 
employer can avoid disclosure by simply agreeing to withdraw its 
challenge to entitlement and accept liability for a claim that the 
employer probably had no legitimate basis for contesting in the first 
place.
                             dol's response
    To its credit, the Department of Labor has taken some positive 
steps in response to these deceitful tactics that have been undermining 
the purpose of the Act. One very important step is the recent 
announcement that the DOL will consider a new regulation requiring the 
disclosure of medical evidence ``to ensure that miners have full access 
to information about their health and that accurate benefit 
determinations are made.'' Requiring the disclosure of all 
interpretations of radiographs and pathology slides is critically 
important because:

    (1) It would provide a significant deterrent to fraud and 
deception, and
    (2) It would be consistent with Section 923 of the Act, which 
requires adjudicators to Consider ``all relevant evidence'' in 
determining the validity of claims. \6\
---------------------------------------------------------------------------
    \6\ 30 U.S.C. 923(b).
---------------------------------------------------------------------------
    In a program that is intended to protect miners, it makes no sense 
to withhold medical evidence that could have an adverse effect on their 
health, and I urge the committee to ensure that the Department 
implements this regulatory change as rapidly as possible.\7\
---------------------------------------------------------------------------
    \7\ Although the regulations set evidentiary limits to preclude 
unnecessarily repetitious evidence, an adjudicator can find ``good 
cause'' to exceed those limits in order to prevent the kind of 
deception described in the examples above. See 20 CFR  725.456(b)(1).
---------------------------------------------------------------------------
    In the meantime, however, as explained in a letter to the Secretary 
of Labor from Chairman Casey and other Members of Congress back in 
February, it would be a real setback if the Department of Labor 
implements a more restrictive discovery rule that would require a 
showing ``exceptional circumstances'' and the inability to obtain 
similar evidence without implementing the rule requiring disclosure of 
medical evidence in Federal black lung claims first. Otherwise, the 
``exceptional circumstances'' rule would apply to black lung cases, and 
coal companies or their attorneys could employ deceptive tactics to 
defeat the meritorious claims of miners like Mr. Fox with virtually no 
fear of detection.
          dr. wheeler and the black lung unit at johns hopkins
    Another significant problem documented by Chris Hamby, the Center 
for Public Integrity, and ABC News was the availability of negative 
radiographic readings from the Black Lung Unit at Johns Hopkins and 
from Dr. Paul Wheeler in particular. Based on statistical evidence and 
Dr. Wheeler's own statements, he was not properly following the 
official criteria for classifying radiographs. In more than 100 cases 
decided since 2000, Dr. Wheeler's negative readings were contradicted 
by undisputed biopsy or autopsy evidence of black lung. And one of 
those miners is Mr. Bailey who is testifying here today.
    To its credit, DOL has taken corrective measures to also address 
this problem. It has notified the District Directors that Dr. Wheeler's 
radiographic readings are not entitled to probative weight unless the 
employer can provide additional evidence that would rehabilitate his 
interpretations. The Department also is notifying claimants whose 
claims contain negative radiographic readings by Dr. Wheeler that they 
may have a basis for refiling or requesting modification of a prior 
denial. I commend the Department for these actions.
                         administrative delays
    Finally, I would like to emphasize that massive delays in the 
processing of claims, particularly at the ALJ level, are creating huge 
problems for claimants. We have been advised that the caseload at the 
ALJ level has nearly doubled since 2004 and the number of ALJs for both 
Longshore and Black Lung cases has dropped from 45 to 36. As a result, 
the number of days it takes for an appealed case to be assigned to a 
judge has increased from 160 to 429. Put differently, the delay has 
gone from a little over 3 months to more than 14 months. And then, it 
still takes a number of months for a hearing date to be set and usually 
a year or more for the judge to issue a decision.\8\ In other words, 
there is a virtual log jam at the ALJ level, and because of the long 
delay, it is not unusual for the claim to outlive the miner or the 
widow.
---------------------------------------------------------------------------
    \8\ It is my understanding that the lack of modern technology and a 
significant shortage of clerks as well as judges are contributing to 
the delays.
---------------------------------------------------------------------------
    I cannot emphasize enough that these long delays are causing huge 
problems for claimants. If a miner or widow is denied benefits at the 
District Director level but has a valid claim, it will take years for 
the miner or widow to prevail with no benefits during the interim. Or, 
if a claimant is awarded benefits by the District Director, the miner 
or widow has to live with the uncertainty that those benefits could be 
overturned on appeal, which means that the miner or widow may have to 
repay all the benefits he or she received while the award was tied up 
in litigation.
    These long delays also make it much more difficult for claimants to 
obtain representation. It is completely unrealistic to expect that 
lawyers who only get paid if the claimant prevails will want to 
represent miners or widows if they also have to wait years to be paid 
an hourly rate for their time and will not be paid at all if the 
claimant does not prevail.
    Thank you for considering my remarks.
            Respectfully submitted by,
                                                John Cline.

    Senator Casey. Thank you, Mr. Cline.
    Dr. Parker.

  STATEMENT OF JOHN E. (JACK) PARKER, M.D., PULMONARY SECTION 
    CHIEF, WEST VIRGINIA UNIVERSITY DEPARTMENT OF MEDICINE, 
                         MORGANTOWN, WV

    Dr. Parker. Thank you, Chairman Casey, Senator Isakson, and 
Senator Harkin, for the invitation. Of course, I'm here today 
because of the power of the pen, the power of the pen to shine 
a light on injustice. We could all be reminded that the Coal 
Mine Safety and Health Act challenged us to have the first 
priority and concern of all in the coal mining industry to be 
the health and safety of its most precious resource, the miner.
    As we've been hearing, unfortunately, black lung disease is 
not a disease of the past, and as a treating physician, I've 
cared for miners who have died at home, who have died in the 
hospital, who have died in the intensive care unit, who have 
died in hospice care, and who have died after lung 
transplantation has failed. I still grieve with their widows 
and their family members.
    I understand that concerns have been advanced about the 
accuracy of the medical work of physicians in matters of 
compensation for coal miners. More specifically, I've been 
asked to provide testimony on the medical standards that should 
be used when coal miners' chest x-rays are classified. I have 
also been asked to give a range of fees that physicians may 
charge to read such chest x-rays.
    Let me provide a very short discussion about the diagnosis 
of dust related diseases. Workplace lung diseases are diagnosed 
during life with a history of exposure and an abnormal chest x-
ray or lung function testing and no better medical explanation 
for the findings other than the workplace dust exposure.
    Because of the important role of chest x-rays in 
establishing such a diagnosis, the quality and accuracy of 
chest x-ray interpretation is, of course, central to the 
process and quite critical. We've heard that the ILO 
classification system is that system, and NIOSH has provided 
education and training and certification of physicians for many 
years and devoted substantial resources to the NIOSH B Reader 
program.
    They also have quality assurance programs that produce very 
highly validated and accurate readings and diagnosis and that, 
in fact, have served as the gold standard for research and 
education around the world. I'm quite confident that if 
compensation programs for miners introduce quality assurance 
programs similar to those that NIOSH uses, it would add a layer 
of quality, integrity, and oversight that would significantly 
reduce the inaccurate readings.
    Let me mention again that these diseases are preventable 
and that we've heard that regulation at 2 to 3 milligrams per 
cubic meter of ambient dust was in place for many years, and 
it's now been reduced to 1.5 milligrams per cubic meter of 
ambient air. I would like to clarify my written testimony that 
I used liters instead of cubic meters, which is common for 
physicians to make an error.
    How much do B readings cost? Well, in my four-decade 
career, I've seen physician reimbursement for the ILO 
classification of images range from $2 a film to $100 a film. 
I've even heard of higher fees, but I would depend upon others 
to document that fee. Two dollars is what NIOSH paid readers in 
the 1980s and 1990s. The current NIOSH payment for digital 
radiographs is $12 an image.
    Chest x-rays that are interpreted in a hospital and 
clinical setting for clinical purposes are currently reimbursed 
at about $9 per image, so for clinical purposes, $9 per image. 
And chest CTs are reimbursed at a higher rate of about $60.
    Let me close by a short discussion about the professional 
integrity of physicians in compensation and litigation. I've 
been aware in my career of apparent systematic over-reading and 
under-reading in compensation matters. In the Judge Jack case 
in 2005, there was systematic over-reading of radiographs, and 
in a RICO claim of CSX Transportation v. Peirce in 2012, there 
was also over-reading. Chris Hamby and the Center for Public 
Integrity's report has outlined substantial under-reading.
    NIOSH maintains a web page which is in full concert with 
the American Medical Association and the American College of 
Radiology. Realizing that the impartial objective and unbiased 
testimony has to be scientifically valid and capable to 
withstand peer review, that physicians have to be careful that 
their medical and legal and social implications from their 
readings are critical, I have no doubt that if all involved in 
the evaluation of miners for compensation utilize the 
principles embodied in these guidelines of professional 
societies that the Nation and its miners would be better 
served.
    Thank you for your attention.
    [The prepared statement of Dr. Parker follows:]

           Prepared Statement of John E. (Jack) Parker, M.D.

    ``The first priority and concern of all in the coal or other mining 
industry must be the health and safety of its most precious resource--
the miner.'' (Federal Coal Mine Health and Safety Act of 1969, amended 
1977.)
    Thank you for the invitation to provide testimony at this 
Employment and Workplace Safety Subcommittee hearing ``Coal Miners' 
Struggle for Justice: How Unethical Legal and Medical Practices Stack 
the Deck Against Black Lung Claimants.''
    I could not resist introducing the profound quote above as a 
preface to my remarks and comments. This meaningful quotation always 
reminds me of the noble mission and indeed the challenge that was 
issued over 45 years ago--to protect the miner from disease and injury.
    The questions. It is my understanding that concerns have arisen 
about the backlog of unresolved claims at the Department of Labor's 
(DOL) Office of Administrative Law Judges (OALJ). I also understand 
concerns have been advanced about the veracity of medical work 
performed by physicians and ethical questions about the legal work 
provided by attorneys representing mining companies in these matters of 
compensation claims for coal miners.
    I have been more specifically asked to provide testimony focused on 
the consensus medical standards for reading or classifying chest 
radiographs of miners and the diagnosis or recognition of the presence 
or absence of pneumoconiosis. I have also been asked to explain common 
fee structures for evaluating such radiographs and to describe a 
typical range of reimbursement or fees charged by physicians.
    I am honored to be asked to render testimony on these questions and 
issues.
    My background. Let me briefly introduce the experience and training 
that I believe qualifies me to provide such testimony. I am currently a 
professor and chief of Pulmonary and Critical Care Medicine at West 
Virginia University Health Sciences Center. I am the program director 
of the Pulmonary and Critical Care Fellowship at West Virginia 
University. I am the director of the Adult Cystic Fibrosis Center. I 
have maintained an active clinical practice at West Virginia University 
since 1985, participating in the care of patients with pulmonary 
diseases, sleep disorders, and other life threatening illnesses in the 
intensive care unit. I have evaluated over 100,000 patients, research 
subjects, and/or their imaging studies, both nationally and 
internationally, for occupational lung diseases, including asbestosis, 
silicosis, coal workers' pneumoconiosis, occupational asthma, 
hypersensitivity pneumonitis, or malignancies.
    From 1985 through 1998, I worked in a number of capacities for the 
National Institute for Occupational Safety and Health (``NIOSH''). I 
was the chief of the Examination Processing Branch at the Division of 
Respiratory Disease Studies for NIOSH from July 1991 through August 
1998. In this position, I provided oversight for the NIOSH Coal 
Workers' Respiratory Health Program as well as the NIOSH B Reader 
program and served as teaching faculty for the American College of 
Radiology View-box Seminar on Pneumoconiosis. Additionally, I was the 
co-author of NIOSH Hazard Alerts regarding toxicity of silica in sand 
blasters, rock drillers, and construction workers.
    I also developed a cooperative agreement with the Finnish Institute 
for Occupational Health for studying the health effects of asbestos on 
Russian asbestos miners and millers. Concurrently while serving as 
chief of the Examination Processing Branch, I was also the acting chief 
of the Clinical Investigations Branch and the acting chief of the 
Epidemiological Investigations Branch at the Division of Respiratory 
Disease Studies for NIOSH. I also served as the chief of the Protective 
Technology Branch of the Division of Safety Research for NIOSH. In this 
capacity, I supervised NIOSH research in workplace respiratory 
protection.
    I offered extensive expert testimony in the In re Silica MDL about 
the proper methods for conducting an ILO classification (B-reading) of 
chest radiographs; generating a differential diagnosis of chest 
radiographic abnormalities, and the implausibility of thousands of 
claimants having both asbestosis and silicosis. I also testified in 
June 2003 before the U.S. Senate Judiciary Committee while they were 
considering ``Fair Act'' legislation, which related to establishing 
uniform medical criteria for asbestos related disease compensation.
    I have consulted for both the World Health Organization and the 
International Labor Office (ILO) on many issues related to respiratory 
diseases. I have assisted the ILO in the 2000 and 2011 revision of the 
ILO system and on issues of quality assurance, training and the 
adoption of digital radiology, and the role of high resolution computed 
tomography.
    I've published numerous peer-reviewed studies, a textbook and 
textbook chapters on occupational lung disease. I was an invited 
participant at three Helsinki criteria meetings, which addressed 
asbestos, asbestos-related diseases, and imaging methodology. I also 
served as a B Reader for ATSDR in multiple studies of health effects 
from potential exposure to tremolite in Libby, MT and was a co-author 
of a peer-reviewed published HRCT study of this cohort. I have made 
over 100 international trips to nearly 60 nations for research, 
teaching, training, or patient care, primarily related to occupational 
and infectious lung diseases. I have a passionate commitment to the 
recognition, prevention, and treatment of occupational lung diseases. 
The important role for imaging in dust related diseases has been of 
particular interest. I have also a strong interest in the ethical 
conduct of physicians as they have a sacred social contract with the 
Nation and its citizens to accurately present scientific truth in 
medical legal proceedings.
    Lung diseases in miners. Let me provide the following short 
background discussion about dust related lung diseases, with an 
emphasis on coalmine related dust diseases.
    The pneumoconiosis, silicosis, asbestosis, and coal workers' 
pneumoconiosis are diseases related to the cumulative respiratory 
exposures to the respective dusts, and the lung tissue reaction to the 
dust. The diagnosis is made during life, typically without a lung 
biopsy, based primarily upon a history of exposure and latency, a 
compatible chest radiographic abnormality, and no better medical 
explanation for the findings than the dust exposure. These concepts are 
well described in medical textbooks and other medical literature.
    The major radiographic system to establish the presence or absence 
of abnormalities in dust exposed workers is the International Labour 
Office (ILO) classification system, and this is also used in the United 
States, and NIOSH devotes staff and resources to administering a B 
Reader program, for education, training, and certification of qualified 
chest radiographic interpreters, or physicians.
    Coal mine dust levels in coal mines have historically been 
regulated at about 2 to 3 milligrams of respirable dust per liter of 
ambient air. Respirable dust is dust that is five microns or less in 
aerodynamic diameter. The permissible respirable dust level has more 
recently been reduced to 1.5 mg/liter by the Mine Safety and Health 
Administration. This is an effort to further protect miners from the 
adverse health effects of coalmine dust.
    These regulatory levels are in general agreement with enforced 
levels of exposure throughout the world. The science supporting this 
recommendation is well documented and is available for review in the 
publication--Criteria for a recommended standard: Occupational exposure 
to respirable coal mine dust (DHHS (NIOSH) Publication No. 1995-106).
    Coal miners are at risk to develop several lung diseases from their 
mining exposures to respirable dusts, such as bronchitis, expiratory 
airflow obstruction, and the radiographic abnormalities of coal 
workers' pneumoconiosis. Recent advances in the understanding of 
respiratory health issues in coal miners have focused on the spectrum 
of disease caused by inhalation of coal mine dust, termed coal mine 
dust lung disease (CMDLD).
    This disease, CMDLD includes the classic occupational interstitial 
lung diseases such as coal workers pneumoconiosis (CWP), silicosis, and 
mixed dust pneumoconiosis, but also include the more recently described 
entity labeled dust-related diffuse fibrosis (DDF). Again, CMDLD is a 
preventable occupational disease that results from inhalation of coal 
mine dust into the lungs leading to parenchymal and airway damage, not 
only from the foreign material itself but also the tissue's reaction to 
the dust.
    As most readers of this testimony will know, Congress passed 
comprehensive legislation with the Federal Coal Mine Health and Safety 
Act of 1969. This Act went above and beyond previous legislation by 
providing for the first mandatory standards for working conditions in 
U.S. mines, a system for enforcement, and ongoing monitoring of miner 
health, as well as a mechanism for seeking financial compensation for 
coal miners who could demonstrate total disability arising from their 
dust exposure (aka ``black lung'').
    Since the time of this landmark legislation further acts by 
Congress and enforcement agencies have improved miners' working 
conditions, which now fall under the purview of the Mine Safety and 
Health Administration (MSHA). Much of our improved understanding of the 
nature and extent of lung disease associated with mining coal in the 
United States over the past half century comes from the large number of 
studies performed by the National Institute for Occupational Safety and 
Health (NIOSH).
    Despite increased understanding of CWP and previous reports of 
stable or improved dust levels in mines, dust-related respiratory 
disease remains a significant burden. Most worrisome are recent data 
suggesting that contemporary dust exposure is leading to rapidly 
progressive pneumoconiosis particularly in young miners, with a 
significant impact on pulmonary function and premature death.
    Medical diagnosis of lung diseases in miners. Establishing a 
medical diagnosis of ``black lung disease'' requires several elements, 
including but not limited to, a careful medical history and 
examination, an occupational exposure history, the use of lung function 
testing, and chest radiographic imaging studies, along with 
considerations of alternative causes of any and all abnormalities 
identified.
    For chest imaging, it is the ILO radiographic classification system 
that is the most widely accepted and standardized method to classify 
chest radiographs for the presence or absence of dust related 
radiographic lung injury. The system uses written guidelines, standard 
comparison films, and a recording or reading sheet.
    The system provides a method to record findings, after classifying 
chest radiographs for film quality, parenchymal abnormalities, pleural 
abnormalities, and additional observations to allow systematic 
categorizations and/or comparisons between readers, using a common 
measure or standard. The lung parenchyma is assigned profusion 
abnormalities in one of four major categories. Category 0 designates 
normal films, and categories 1, 2, and 3 record progressive degrees of 
profusion abnormality. Profusion is further expanded into a 12 point 
scale. Major category 0 includes designations 0/-, 0/0, and 0/1, while 
major category 1 includes 1/0, 1/1, and 1/2; and so forth for major 
categories 2 (2/1, 2/2, 2/3) and major category 3 (2/3, 3/3, 3/+).
    It is noteworthy that the ILO system, including refinements over 
time has been used for over five decades, and is a critical tool that 
has provided the scientific data for exposure-response relationships in 
occupational dust diseases. This data has allowed the United States and 
nations throughout the world to establish protective workplace 
standards.
    The ILO system has been consistently validated by workplace dust 
exposure histories, cumulative dust measurements, pathology, tissue 
mineral measurements, and additional radiological techniques such as 
high resolution computed tomography. When correctly applied without 
bias, the ILO system is a reliable tool to assess both groups and 
individuals for radiologic abnormalities from workplace exposures.
    With this background, allow me to address the specific concern 
about application of consensus medical standards for reading or 
classifying chest radiographs of miners and the diagnosis of the 
presence or absence of pneumoconiosis, and the common fee structures 
for evaluating such radiographs, and to describe a typical range of 
fees charged by physicians.
    The ILO system for classifying radiographs is the consensus 
standard medical method. Ideally, more than one reader should be used 
to reach consensus normal or abnormal. Science and experience has 
shown, multiple readers are more reliable than one reader alone with 
veto power. Typically, two readers with a third tie-breaker reader, or 
three readers by consensus have been the most widely used methods. 
NIOSH and other authorities have traditionally reached profusion 
consensus among three readers of the same PA radiograph based upon the 
median profusion classification.
    Profusion is a concept embracing severity of disease of the lung 
parenchyma by comparison to standard example images. Again, the 
numerical designations 0/0 and 0/1 are normal or nearly normal, while 
designations with a number higher than 1 as the first numeral are 
abnormal. Most research, surveillance and compensation systems use 1/0 
or greater as abnormal (the scale progresses to include 12 values 0/-, 
0/0, 0/1, 1/0, 1/1, 1/2, 2/l, 2/2, 2/3, 3/2, 3/3, 
3/+). A median profusion consensus reading is the middle reading of the 
three classifications for profusion abnormality. For example, if the 
three reader classifications are 1/0, 1/1, 1/2, the consensus reading 
is 1/1; if classifications are 1/0, 1/1, 1/1, the consensus reading is 
1/1; and so on.
    As previously stated, the ILO system is highly validated with 
research comparing radiographic findings to pathology, exposure 
assessment, lung tissue mineral analysis, and other techniques.
    Physician fees for radiographic readings. Information regarding fee 
structures. In my four decade career, I have seen the professional or 
physician reimbursement for the ILO classification of images, ranging 
from two dollars per radiograph to one hundred dollars per radiograph. 
Two dollars per radiograph was what NIOSH paid readers in the 1980s and 
early 1990s, in their research and surveillance programs. The U.S. Navy 
often reimbursed at about $6 to $8 per image for their asbestos related 
screening programs, during that time period. The current NIOSH payment 
for images in their coal miner surveillance program is $12 per 
radiograph. A chest radiograph professional interpretation in the 
hospital or clinic setting for clinical purposes is reimbursed at a 
lower rate than ILO classifications, and this is currently by most 
insurance companies about $9 per image. Chest computed tomography is 
reimbursed at a higher rate, about $60 per study. There is also 
technical component charge for radiographic imaging by hospitals or 
clinics, as they often own, operate, and maintain the radiographic 
equipment and supplies. For a single view chest that technical 
component reimbursement is about $12, and for Chest computed tomography 
it is about $150.
    Integrity in science and medical testimony. Now a short discussion 
about profession integrity of physicians, in compensation and 
litigation of occupational lung disorders.
    In my career, I have been aware examples of apparent systematic 
over-reading of radiographic abnormalities, as well as, systematic 
under-reading of radiographic abnormalities in dust exposed workers. 
Some of the apparent mis-application of the ILO system has led to 
concern about large scale fraud as outlined in the written decision 
from Judge Jack in the In re Silica MDL in 2005; and another Federal 
court decision, a Racketeer Influenced and Corrupt Organizations Act 
(RICO) claim in CSX Transp. Inc. v. Peirce, et al. in 2012. Other 
examples of potential mis-application of the ILO system have been 
outlined in the Center for Public Integrity reporting by Mr. Chris 
Hamby.
    As I have explained before, these reports of systematic un-reliable 
diagnosis, give credence to justified and serious concern about bias 
and the lack of scientific independence or credibility of some 
physicians in compensation and medical legal matters. Are some medical 
experts not being ``scientifically credible''; being ``disingenuous and 
scientifically dishonest''; presenting testimony that is ``invalid and 
scientifically wrong''; reporting incorrect medical decisions ``not 
explainable as an `honest mistake' or through lack of competence and 
skill''; but rather reporting medical findings that are the product of 
a purposeful and systematic pattern of incorrect reading that does not 
match the scientific literature?''
    And again, rather than rely exclusively on my thoughts on this 
matter, I would refer readers to the NIOSH website that provides 
guidance to B Readers about the proper methodology for reviewing and 
classifying chest images, including ethics for contested readings.
    The website contains some of the following succinct and forceful 
language, and I primarily quote NIOSH in the following:

    ``NIOSH has prepared ethical guidelines that should be considered 
when readers classify radiographs in contested settings.''
    ``Also, the American Medical Association (AMA) and the American 
College of Radiology (ACR) have published guidelines for physicians 
serving as expert witnesses (ACR 2007, AMA H-265.994, AMA E-9.07).''
    ``All of these professional bodies and these guidelines discuss the 
need to be impartial, objective, and unbiased. Testimony must be 
scientifically valid and be able to withstand peer review.''
    ``The NIOSH B Reader Code of Ethics is intended to assist B Readers 
in recognizing and maintaining a high level of ethical conduct. The 
outcome of chest radiograph classification can have important medical, 
legal, and social implications. It is critical that B Readers perform 
chest radiograph classifications properly and with integrity. This 
code, modeled after those of the American Medical Association (AMA) and 
the American College of Radiology (ACR), is a framework to help B 
Readers achieve this goal.''

B Reader Code of Ethics is as follows:

    ``The B Reader's primary commitment is to serve the welfare and 
best interests of patients, workers, and society by striving to 
classify chest radiographs as accurately as possible.
    B Readers shall uphold the standards of professionalism, be honest 
and objective in all professional interactions, and strive to report 
individuals or enterprises that they know to be deficient in character 
or competence, or engaging in fraud or deception, to appropriate 
entities.
    B Readers shall recognize the limitations of chest radiograph 
classifications, and shall not make clinical diagnoses about 
pneumoconioses based on chest radiograph classification alone.
    When a contemporary chest radiograph is classified, the B Reader 
shall either take responsibility for assuring to the extent feasible 
that the examined individual is promptly notified of all clinically 
important findings or must be assured that another appropriate party is 
taking that responsibility.
    B Readers shall respect the law; the rights of patients, other 
health professionals, and clients; and shall safeguard medical 
information and other confidences within the constraints of the law.
    B Readers shall continue to study and apply advances or changes to 
the International Labour Office International Classification of 
Radiographs of Pneumoconioses as specified by the NIOSH B Reader 
Program.
    In providing expert medical testimony, B Readers shall ensure that 
the testimony provided is unbiased, medically and scientifically 
correct, and clinically accurate.
    B Readers shall recognize and disclose any conflicts of interest in 
the outcome of a chest radiograph classification. B Readers shall not 
accept compensation that is contingent upon the findings of their chest 
radiograph classifications or the outcome of compensation proceedings 
or litigation for which they undertake readings.
    B Readers shall not advertise or publicize themselves through any 
medium or forum of public communication in an untruthful, misleading, 
or deceptive manner.
    B Readers shall promptly report to the NIOSH B Reader Program any 
revocation or suspension of a medical license, voluntary relinquishment 
of a medical license or conversion to inactive status, or the voluntary 
surrender of a medical license while under investigation.''

    I have no doubt that if all involved in the evaluation of miners 
for potential adverse respiratory health consequences of mining 
utilized the principles embodied it these guidelines outlined by NIOSH 
and other professional organizations, the Nation and its miners, and 
its system of justice, would be better served.
                                 ______
                                 
    ``The first priority and concern of all in the coal or other mining 
industry must be the health and safety of its most precious resource--
the miner.'' (Federal Coal Mine Health and Safety Act of 1969, amended 
1977.)
                          pertinent references
Criteria for a recommended standard: Occupational exposure to 
    respirable coal mine dust (DHHS (NIOSH) Publication No. 1995-106).
Guidelines for the Use of the ILO International Classification of 
    Radiographs of Pneumoconioses.
NIOSH. Chest radiography, NIOSH B Reader program, ILO Classification 
    System, Issues in classification of chest radiographs, recommended 
    practices: worker monitoring and surveillance, epidemiologic 
    research, medical diagnosis, government programs, best technical 
    practices. http://www.cdc.gov/niosh/topics/chest-radiography/
    interpretation.html.
Petsonk EL, Rose C, Cohen R: Coal mine dust lung disease: New lessons 
    from an old exposure. Am J Respir Crit Care Med 187(11):1178-85, 
    2013.
Wagner OR, Attfield MD, Parker JE. Chest Radiography in Dust-Exposed 
    Miners: Promise and Problems, Potential and Imperfections. 
    Occupational Medicine: State of the Art Reviews 8(1); 127-141, 
    1993.

    Senator Casey. Doctor, thank you very much for your 
testimony.
    Mr. Bailey.

   STATEMENT OF ROBERT BAILEY, JR., FORMER COAL MINE WORKER, 
                         PRINCETON, WV

    Mr. Bailey. What is it like to have black lung? I thought I 
knew after spending so many years in the mines, but, really, I 
never knew until I got to this chapter of my life. Some days 
are a lot better than others. But every day is not a good day.
    When I signed up for black lung, I was initially denied, as 
stated in medical records from Johns Hopkins Hospital doctors 
in a negative way. My doctor, Dr. Rasmussen, said I had 
complicated pneumoconiosis. The board that he represents--I've 
done several records from them, and they've always supported 
that I had black lung.
    I felt within myself that this disease was here. I couldn't 
settle for the other reading, so I proceeded, and they also 
added that there could be other diseases. That's another burden 
they lay upon you, and you wonder what to do. I had a lung 
biopsy--took three samples, said two mostly black, that I had 
complicated black lung. Then after that event, I was awarded my 
black lung benefits.
    You get awarded, but it's still not easy. It's hard. You 
still have the disease. You struggle with the different things. 
And the other miners--which I'm fortunate. It took me almost 4 
years. Other miners have been there a lot longer and they 
haven't received anything, and a lot of it is through negative 
reading of the records.
    So I hope to support them with this, what we do today, for 
those that are still trying to get their benefits and for those 
who haven't gotten to where we are now. I hope to prevent them 
from experiencing that.
    But the coverages, once you get them, you think that you're 
covered. Social security gives me disability on pneumoconiosis 
and sleep apnea. But even now, I'm in the process of a lung 
transplant procedure. My black lung insurance provider does not 
want to approve evaluation procedures or a transplant, after 
being already approved twice through social security and the 
black lung program.
    So that's another thing that we have to face, not just the 
daily struggles of our disease, but the outcome of all 
uncertainty of ourselves and the other miners that we 
represent. I'm still thankful that I am a UMWA member, and I 
feel like I have a comfort zone. Someone is there that will 
help back me and will stand behind us. And just like everyone 
is here today--we're here for the same reason. So I look to you 
all to help us to get that which we need.
    For those that are not union workers, I feel a deeper 
compassion for them also, because they don't have too many 
places they can go to for help, except maybe black lung 
clinics. They are limited, and they need more support from 
them. I would like to see Congress step in and make some 
changes to help process these claims that have taken so long 
for most miners to even receive. Unfortunately, most of them 
are turned down.
    I know that to have this black lung disease, some of it is 
simple, some of it is complicated, and the more complicated it 
is, the more help that you need, financially and emotionally. 
But it's not just the miners. It's their families. Our families 
suffer just as much, if not more, than the miner himself. So my 
heart goes out to the families also.
    I'd like to thank you, each and every one. I'm humbled to 
be here, and I'm honored. Thank you.
    [The prepared statement of Mr. Bailey follows:]

                Prepared Statement of Robert Bailey, Jr.

    Chairman Casey, Ranking Member Isakson, and Senators, my name is 
Robert Bailey, Jr., and I am a retired and disabled union coal miner 
with complicated black lung disease. I graduated from high school in 
June 1972, and began working in the coal mines in July 1972. I retired 
after working in the coal mines for 36\1/2\ years due to having black 
lung disease.
    I appreciate all the hard work that our elected officials have 
endured during these long struggles to get the changes that are needed. 
I also appreciate the support of the UMWA.
    If you would ask me, ``What it is like living with black lung 
disease,'' I would think, ``Where do I start?'' First of all, living 
with black lung is hard. With this disease, I have had to learn to 
change my normal way of doing things to a much more simple way or just 
not doing it at all. Living with black lung is thinking about every 
breath you take. Breathing is something most people take for granted as 
it is a normal involuntary function of our bodies. It comes natural as 
we walk, do our daily jobs, come and go. But with this disease, I am 
reminded constantly as I struggle to breathe whether I am simply 
walking up my slight incline of a yard, or grocery shopping or trying 
to participate in Operation Compassion at our church when we give out 
food. My wife says she can see the pain on my face as I struggle to 
take in enough oxygen to do those things in my life. There are days 
that I feel so bad that I end up doing mostly nothing all day. I feel 
like this disease has taken about 80 percent to 90 percent of my active 
life away. I have always been an active, hard-working person who always 
had a hard time sitting still.
    With this disease, I end up with infections in my lungs and my 
breathing gets so bad that I have no choice but to go to the hospital. 
There, they pump me full of IV Antibiotics, steroids, nebulizers, etc. 
to build my system back up for a while. I am now having a once a month 
IV treatment at the hospital in hopes that it will help keep the 
infections down. I leave the hospital feeling better, strap on the 
oxygen tank, and thank God for another day to try again.
    When I originally filed for Black Lung Benefits in 2009, I had 
worked as an underground coal miner for more than three decades in very 
dusty conditions and had never smoked except for sneaking cigarettes 
for a few years as a teenager. I was denied because Dr. Wheeler gave a 
negative reading of my x-ray. In other words, he gave his opinion that 
I didn't qualify for black lung or didn't have severe black lung. I 
feel that Dr. Wheeler's negative reading was given more weight simply 
because he graduated from Harvard University and worked at Johns 
Hopkins, than Dr. Rasmussen's reading who is also a very accredited 
doctor in the Black Lung field with years of studying coal miners and 
their disease.
    I continued my claim and was finally, after nearly 4 years, awarded 
my Black Lung Benefits by a Federal Judge from Washington, DC, after 
much further testing, x-rays, MRIs, and a lung biopsy. They took three 
samples of my lungs and two of those samples were stated as ``mostly 
black.'' The final result of the lung biopsy was ``complicated 
Pneumoconiosis.''
    My lung doctor, Dr. Vasudevan of Princeton, WV, and I talked about 
the possibility of a lung transplant. His office started trying to find 
a hospital willing to see me to be evaluated for a transplant. We found 
Inova Fairfax Hospital in Falls Church, VA. The financial coordinator 
contacted Underwriters Insurance which I have through Patriot Coal as 
my insurance for anything related to black lung disease. Underwriters 
in turn approved a one-time evaluation. My one-time evaluation was 
scheduled for February 11, 2014.
    After this initial evaluation, it was determined by Dr. Steven 
Nathan that I needed a transplant and in his words ``you are in the 
perfect window of opportunity for a transplant.'' This would require a 
complete evaluation of testing which would have to be approved through 
the Underwriters Insurance. My next appointment was scheduled for May 
27 for a followup (a regular checkup) with Dr. Nathan, but I received a 
letter of denial from Underwriters so this appointment was rescheduled 
for June 12. I started on the trip for this appointment without knowing 
if it would be approved. Finally, as I was halfway there, I received a 
phone call from Inova saying this visit was approved. When I got back 
home, I received a letter from Underwriters (from the attorney with 
Bowles Rice) stating that they authorized the June 12 appointment but 
do not authorize any lung transplant procedure and that Patriot 
reserves the right to approve or disapprove any further testing or 
transplant in keeping with the ``applicable regulations and law.''
    As I write this letter, I am here in Fairfax for the week for all 
of the additional evaluation testing required to determine my 
eligibility for a lung transplant. I have no idea if this week of 
testing will be approved and paid for nor do I know if after all this 
testing, the insurance will agree to the transplant since Patriot is 
reserving their right to approve or disapprove based on the 
``applicable regulations and law.'' Today, as I write this letter, 
Underwriters has not sent me any letter of approval or denial 
concerning this week of testing.
    I worked in the coal mines for 36\1/2\ years. Through the years, I 
have met a lot of good men who became like family. We were all there to 
make a living and none of us deserved this terrible disease, but sadly, 
there are a lot of us going through this. When I was working, I knew a 
lot of my co-workers who were afraid to have the free x-rays that the 
company was required to offer. They were afraid it would be used 
against them somehow, and they would lose their jobs. Even now, when a 
coal miner files for Black Lung Benefits, they know they are in for a 
battle. I just recently met a man who fought for 11 years and just 
recently won his benefits. He told me he was ready to give up several 
times but held on through much encouragement from people in the Black 
Lung Clinic.
    It seems like the coal companies and/or the insurance company wants 
to put you off as long as possible hoping you will give up or die 
before they have to pay any benefits. In my case, I have been awarded 
my Federal Black Lung Benefits and Disability Social Security benefits 
based on my black lung disease. Yet, Patriot Coal wants to reserve the 
right to approve or deny my testing or transplant. Patriot's lawyers 
said they would need to review the medical records again (a stall 
tactic) and want to definitely determine the disease process present in 
the lungs.
    I feel like I need to prove over and over again that I have this 
terrible disease. I feel that the ``applicable laws and regulations'' 
mentioned in the letter need to be changed to protect the diseased coal 
miner more than the coal companies. I'm hoping you can help me and all 
other coal miners who have this amount of medical evidence and physical 
needs to be approved in a more timely manner and can stop the long 
drawn-out stalling techniques by using policies and criteria that help 
the insurance company and coal operators, but do nothing for the coal 
miners who are dying from black lung disease. There are coal miners who 
have died waiting on the approval for a transplant. Policies and laws 
need to be changed to give hope and life to those who don't have time 
for stall tactics. Once a coal miner has been awarded his Federal black 
lung benefits and no appeals were made in protest by the company, there 
should be no question about paying for anything concerning the coal 
miner's health and quality of life.

    Senator Casey. Mr. Bailey, thank you for your testimony and 
for your presence here today to bring your own story to this 
issue. We're grateful.
    And, finally, Mr. Briscoe.

    STATEMENT OF ROBERT BRISCOE, WCP, PRINCIPAL AND SENIOR 
               CONSULTANT, MILLIMAN, NEW YORK, NY

    Mr. Briscoe. Mr. Chairman and members, if I could correct 
the record, my firm is not a law firm. It's an actuarial firm. 
I'm here having spent almost 40 years measuring the things that 
are going on in the Federal black lung program. Primarily, what 
my staff and I do is calculate the dollar liabilities for these 
claims or pretty much every entity out there that ends up 
having to pay one.
    I think you've heard today a number of times several key 
words. One of them is latent and progressive. The other is 
complicated pneumoconiosis. That's not the whole story. It is 
certainly regrettable, and my heart goes out to the coal miners 
who have serious lung disease. There is no question that I 
think the process should be and could be made better, certainly 
faster, to deal with those people.
    I would point out, though, that those people are a very 
small fraction of the total universe of claims that go by every 
day. We're really talking about three diseases here. They are 
separate and distinct diseases. Complicated pneumoconiosis is, 
without question, latent and progressive. Simple 
pneumoconiosis, which is the majority of the cases that have 
ever been compensated for Federal black lung, is controversial, 
but there are strong arguments that it is neither latent nor 
progressive, and if it is, it's to a very small degree, very 
few people.
    The other disease, which has not been mentioned yet today, 
is chronic obstructive pulmonary disease--all the other lung 
diseases, emphysema, asthma, bronchitis, that the general 
population experiences and the coal mine population 
experiences. The difference here--and it's a very important 
difference--is that the prevalence of smoking in the eastern 
underground coal mine populations is four times higher than it 
is in the general population, which means that the prevalence 
of COPD is that much higher.
    What DOL has done in the latest 2001 regulations has been 
to try to apply to all black lung claims the latent and 
progressive issues that really are associated with complicated 
pneumoconiosis. And we are well on the way, as we sit here 
today, toward entitling claims where the claimant's principal 
lung problem is COPD. Perhaps there's a small fraction of black 
lung mixed in with that, and this is a very, very difficult 
medical-legal conundrum with respect to how these claims should 
proceed.
    I would point out--and I do work in pretty much all 50 
State workers' comp programs and have for many, many years--
that the U.S. workers' compensation is very rapidly moving 
toward evidence-based medicine. All the major workers' comp 
States have medical treatment guidelines and disability rating 
guidelines that require evidence-based medicine to be applied. 
The concepts that are embedded in DOL's preamble to the 2201 
regs are pretty much in the opposite direction of that, and the 
program faces very great difficulties going forward trying to 
sort all of this out.
    I think that, without question, the miners who have very 
serious lung disease should be compensated, and they should be 
compensated rapidly. And I would point out that in my 
experience, the vast majority of claimants who have been 
diagnosed with complicated pneumoconiosis have had their claims 
paid, unfortunately, not as rapidly as perhaps they should be 
because of the litigation process, both administrative, the 
DOL, and the Office of ALJs.
    But the large body of claims that have always moved through 
the system--there's been over 700,000 coal miners compensated 
for black lung since 1970. Since 1973, when the burden of 
paying for those claims was shifted to the coal mine operators, 
what is little understood, I think, is that these claims are 
very expensive. They're at the high end of workers' 
compensation claim cost. A married miner in his midfifties will 
eventually receive something on the order of half a million 
dollars.
    So because these claims are extremely expensive, that 
obviously generates litigation. What the Federal black lung 
program has not done, which the successful black lung programs 
operating in the major coal mine States did long ago, is to 
introduce a gradient of disability that pays more toward the 
very serious injuries, serious claims, and less toward the 
others and/or permits settlements of the claims, which DOL has 
adamantly refused to do over the history of the program.
    So I certainly would suggest that any and all things that 
can be done to speed up the adjudication process for those 
claimants with serious lung disease should be explored. But I 
think that we need to also focus on the bulk of the claims with 
lesser, if any, degree of disability arising from coal mine 
dust and try to make the program responsive to the full 
spectrum of the diseases that are arising out of coal mining.
    [The prepared statement of Mr. Briscoe follows:]

    Prepared Statement of Robert Briscoe, WCP, Principal and Senior 
                       Consultant, Milliman Inc.

    Thank you Mr. Chairman and members of the subcommittee for the 
opportunity to appear to share my thoughts on the Federal Back Lung 
program--a subject area I have been working on since 1973. My practice 
involves providing consulting services to organizations charged with 
paying Federal black lung claims. My clients have included insurance 
companies, Workers Compensation rating bureaus, self-insured coal 
companies, State funds and other State government agencies, and on 
several occasions, the agency charged with administering the program 
since 1973--the U.S. Department of Labor, Office of Workers 
Compensation Programs. My staff and I have processed and calculated the 
liabilities for the bulk of the claims that have been filed since the 
late 1970s and, in this regard, have reviewed many thousands of claims 
files in order to understand the factors upon which approval and denial 
decisions are based.
    As you think about the operation of the Federal program, there are 
three key facts I ask that you keep in mind, each of which I'll discuss 
in greater detail below:

     First, today's approval/denial decisions are being driven 
by factors that, because of DOL's poorly explained regulatory 
provisions, have little relationship to lung disease arising from coal 
mine employment. These implied principles are contained in the 2001 
preamble to the regulations which were never subject to the notice and 
comment process of the Administrative Procedure Act and are now being 
applied as if part of the formal regulations. These principles extend 
to virtually every aspect of the claims adjudication process and 
frequently result in the payment of benefits to miners who do not 
suffer from Black Lung disease.
     Second, while there has been a considerable amount of 
attention focused on what some perceive as bias by certain company/
insurer physicians, in my experience the same biases, which are easily 
documented, exist among certain claimant physicians--this is not 
something new, but rather is endemic to the program, having been 
present since the earliest days of the program.
     Third, the processes driving the approval rates of the 
program have been driven more by public policy considerations focused 
on circumstances of coal mining employment than by actual incidence of 
dust-induced lung disease among the active and retired miner 
population.

               History of the Federal Black Lung Program

    The Federal black lung program was initiated in 1969 as Title IV of 
the Federal Coal Mine Health and Safety Act of 1969. It was designed to 
provide benefits to miners totally disabled due to progressive massive 
fibrosis, otherwise known as complicated Coal Workers Pneumoconiosis, 
associated with simple Coal Workers Pneumoconiosis arising out of coal 
mine employment and for survivors of miners whose deaths were a result 
of the disease. Coupled with a significant reduction in the permissible 
exposure to coal mine dust beginning in 1970, its sponsors assured 
their colleagues that it was to be:

           . . . a one-shot effort. This [program] is not a continuing 
        arrangement to establish Federal based compensation for this or 
        any other industry. We are only taking on those who are now 
        afflicted with pneumoconiosis in its fourth stage--complicated 
        pneumoconiosis. However, this is only one shot. I want to say 
        this today and I want to have it placed on the record indelibly 
        . . . (Remarks of Hon. John Dent, congressional Record, Oct. 
        27, 1969).

    The original Act created three presumptions to aid miners and their 
survivors in establishing claims. The bill finally enacted differed in 
one material respect from the one presented to the House and explained 
by Congressman Dent in that it removed the word complicated, thus 
providing compensation to claimants who exhibited symptoms at any stage 
of simple CWP in spite of the fact that only in its most serious form; 
i.e., complicated CWP or Progressive Massive Fibrosis (PMF), is it 
progressive, totally disabling and eventually fatal. The Surgeon 
General testified to this fact and stated ``simple pneumoconiosis 
seldom produces significant ventilation impairment . . .'' S. Rpt. No. 
1254, 94th Congress, reprinted in the Legislative History of the Reform 
Act.
    In 1972, Congress greatly liberalized the medical criteria, added a 
new presumption of eligibility based on coal mining exposure of 15 
years or more, extended eligibility for survivor benefits to survivors 
of miners who died from causes other than pneumoconiosis and made 
several additional changes in evidentiary and eligibility requirements. 
The new 15-year presumption was, and is, of particular concern to the 
coal industry in that no medical evidence has shown a clear causal 
relationship between duration of employment and the incidence of 
disability due to pneumoconiosis. Supporting this contention was 
testimony presented by the Surgeon General who stated,

          ``The occurrence of pneumoconiosis is spotty for work periods 
        of less than 15 years.'' S. Rpt. No. 743, 92d Congress. 
        Further, the National Academy of Sciences in testimony before 
        the Senate Subcommittee on Labor stated, ``At best, the 
        evidence presented to Congress indicates that it takes 10 to 15 
        years of underground mining for coal miners even to begin to 
        develop coal workers' pneumoconiosis.''

    By 1977, the Social Security Administration, which had administered 
the program prior to July 2, 1973, had paid a cumulative total of 
nearly $5 billion in Black Lung benefits and there were over 490,000 
beneficiaries on its rolls (this number eventually grew to 
approximately 600,000). In addition, the Department of Labor, which had 
begun administering the program on July 1, 1973 with less than half the 
personnel it had requested, had approved only an additional 4,000 
claims with approximately 50,000 claims on file pending review.
    Against this background, Congress in 1977 amended the Act for a 
second time and again liberalized the eligibility criteria. 
Pneumoconiosis, which was previously defined as a chronic dust disease 
of the lung arising out of coal mine employment was broadened to 
include the, ``sequelae, including respiratory and pulmonary 
impairments, arising out of coal mine employment.'' ``Miner'' was 
broadened to include certain transportation and construction workers as 
well as employees of coal mining companies who were not engaged in coal 
mining activity and ``total disability'' was broadened enabling those 
still capable of work, or those still working, to receive benefits. The 
liberalization resulted in truck drivers, and other coal company 
employees who were never exposed to coal mine dust qualifying under the 
definition of ``miner.'' Finally, a new 25-year presumption was added 
and the Labor Department was directed to re-examine all claims which 
had been denied prior to March 1, 1978, and adopted language to limit 
the government's ability to re-read x-rays. This last point is of 
particular concern since the x-ray is regarded as the best evidentiary 
tool for diagnosing pneumoconiosis in a living miner. This change in 
the law required the Secretaries of HHS and DOL to accept a local 
reader's x-ray diagnosis even though testimony presented before the 
Senate Committee on Labor stated that local doctors often mistook 
another lung disease for pneumoconiosis or completely overlooked the 
presence of a separate disease when interpreting x-rays.
    As the Part C program began to identify responsible coal mine 
operators to pay the costs of the program, DOL, through regulations 
promulgated in 1978, specified medical criteria to be applied upon 
which award decisions were rendered. Claims adjudications at the 
administrative level at DOL and in the Federal courts specifically 
addressed if the claimant had positive X-ray evidence of Coal Workers 
Pneumoconiosis (CWP) and if the miner had a loss of lung function 
within pulmonary function test ranges set by regulation to equate to 
total pulmonary disability. Tens of thousands of Federal Black Lung 
claims had been litigated at the administrative level at DOL and in the 
Federal courts by the late 1990s. Many claimants had neither positive 
X-ray evidence of CWP, nor a loss of lung function sufficient to 
qualify for benefits and were denied. Many claimants with a measurable 
loss of lung function were denied on the basis of medical opinions that 
such loss was the result of their long-term cigarette smoking, or other 
common respiratory conditions, as opposed to coal mine dust. The 
approval rate for both operator defended and DOL defended claims 
declined across the mid-to-late 1980s and 1990s and by 1995 was 
approximately 5 percent. Note that if denials of claims from 
individuals who were not long-term underground coal miners are removed 
from the approval rate calculation, the approval rate was higher--
generally in the 10 percent range in the Eastern coal fields. A 10-
percent rate, while higher, is in the general range of the actual 
incidence of all categories of CWP in the Eastern coal fields, 
indicating that the Federal Black Lung program's operations had some, 
albeit significantly higher, relationship with the actual dust disease 
although much higher than the incidence of disabling CWP. The primary 
reasons for the reduction in the approval rate were: (1) the 1981 
amendments that repealed entitlement presumptions that existed in the 
program in its early days; and (2) findings that the primary reason for 
the loss of lung function was the claimant's long-term cigarette 
smoking or other conditions not caused by coal mine dust exposures, 
including lung cancer and heart disease.
    In 1981 Congress, in the face of an exploding debt in the Black 
Lung Disability Trust Fund, amended the program again to tighten the 
eligibility criteria and provide for the award of benefits where 
disability decisions were based on medical criteria and not the number 
of years of underground employment. The 1981 amendments, which were 
supported by coal operators and the United Mine Workers of America, 
were intended to require disability or impairment as a precondition to 
compensation and to eliminate years of employment as a determinant for 
eligibility. The shortcomings of the program that gave rise to the 1981 
amendments were highlighted in a report by the Comptroller General 
entitled ``Legislation Allows Black Lung Benefits to be Awarded without 
Adequate Evidence of Disability'' (HRD-80-81, July 28, 1980). According 
to this report, 88.5 percent of the claims reviewed by GAO, which had 
been approved by the Social Security Administration, did not contain 
adequate medical evidence to establish disability or death from CWP. A 
study conducted a year later by GAO showed that 84 percent of approved 
DOL claims were not supported by reliable evidence of coal mine dust-
related disease or disability. The 1981 amendments succeeded in 
bringing financial stability to the program, but unfortunately, this 
was short-lived.
    In 1999 the DOL proposed new regulations, which, after extensive 
comments, hearings, and litigation, were promulgated as final on the 
last date of the Clinton administration. In the preamble to these 
regulations DOL stated that Coal Workers Pneumoconiosis is latent and 
progressive. In spite of the Justice Department's concession before the 
DC Circuit Court of Appeals that CWP was not latent in its most common 
forms, and the Surgeon General's report that simple pneumoconiosis was 
not progressive, it left only a very small number of ``complicated'' 
pneumoconiosis cases where latency or progressivity might be a factor. 
DOL has now reinvented the program since 2001 on the central concept 
that CWP is latent and progressive in essentially all cases and COPD in 
retired coal miners is related to previous exposures to coal mine dust. 
Thus, today on these premises, miners are allowed to file as many 
claims as they like no matter how many times their claims are denied, 
and the vast majority of awards are made on account of COPD due to 
smoking. There is no comparable State or Federal Workers Compensation 
program where nothing is final until an award of benefits is achieved, 
and where evidence justifying a differential diagnosis pointing to 
cigarette smoking alone is either ignored or deemed irrelevant.
    These central concepts are not well documented or supported by 
scientific research. Since Chronic Obstructive Pulmonary Disease (COPD) 
resulting in loss of lung function from past or ongoing smoking is 
central, or required, for most awards today, the Black Lung program is 
now operating to confer lifetime disability benefits to smokers who may 
or probably may not have even a low level of minimally disabling CWP. I 
cannot stress this point strongly enough--the vast majority of 
claimants receiving benefits today are receiving them not because of 
their coal mine employment but rather as a result of having been a 
smoker. What this means is that a miner leaving the workforce at the 
end of his coal mine career who has not developed a loss of lung 
function at that point in his life can, at a later age while continuing 
to smoke, file for Federal Black Lung benefits and support such claim 
with a showing of loss of lung function that developed in the 
intervening years. This is contrary to 40 years of specific medical 
studies of CWP that clearly show that CWP rarely, if at all, progresses 
once the exposure to coal mine dust has ended. DOL has correctly 
referenced observational clinical studies that indicate that some 
levels of COPD appear in some miners that may be related to their dust 
exposures, but then leaps to conclusions that all COPD must be caused 
by coal mine dust exposures. The medical studies fail to show evidence 
that severe COPD from coal dust exposure alone is a risk for coal 
mining populations.

                         Status of the Program

    Since its inception, well over 1 million coal miners and/or their 
dependents have filled one, two or more claims. Over 700,000 have 
received entitlements. The bulk of the benefits paid to date have been 
direct payments from U.S. General Revenues (Part B) or indirect 
payments from The Black Lung Disability Trust Fund, a mechanism created 
in 1978 to provide benefits to miners whose last employer was no longer 
in business. The Fund, while funded through an excise tax on coal 
sales, incurred substantial borrowings from the U.S. Treasury in the 
early years of its operation. By 1980 both the direct U.S. funded Part 
B program and the following Part C program had run approval rates in 
excess of 60 percent. The dominant reasons for denials of benefits were 
that the miner was still working in the mines, or that the claimant was 
not in fact a coal miner under the Act. Scant attention was paid to the 
medical evidence submitted with the claim, and expectations emerged 
early on that the program was a pension plan, intended to confer 
benefits to miners with more than 10 years of service with no regard to 
the presence of actual pulmonary disability. When realistic medical 
criteria began to be applied, the approval rate began to reduce both 
for operator defended and DOL defended claims. Claim denials 
predominated the process.
    The inevitable result of DOL's emerging COPD focused approach to 
Black Lung compensation will be to increase the approval rate up to the 
level of the incidence of COPD in the coal mining population. If the 
coal mine population filing Back Lung claims had the normal national 
ratio of non-smokers to smokers, then basing the Federal Black Lung 
Program on compensation for COPD regardless of its source would produce 
a relatively small number of claim awards each year. The Eastern 
underground coal mining populations however have a much higher 
incidence of smoking than the general population--85 percent + vs 20 
percent--25 percent in the general population. The medical literature 
suggests that 25 percent-30 percent of long-term smokers will develop 
COPD over their life. This gives rise to an expectation that an 
approval rate based primarily on loss of lung function from any cause 
should be in the 21 percent to 26 percent range. In fact the approval 
rate is at 23 percent in one major Eastern coal mining State (Virginia) 
and is approaching the 15 percent range in the other Eastern coal 
mining States. If the approval rate passes the 25 percent range, then 
increases over that level will indicate that the claims adjudication 
process is returning to the 1970s levels, where most miners worked all 
of their careers under far dustier conditions, representing 
compensation with minimum regard to the actual medical facts of each 
claim. It is also important to note that under DOL's current approach 
to Federal Black Lung compensation x-ray evidence of CWP--the well 
defined disease the program was set up to compensate is almost 
completely ignored. The use of the ``legal CWP'' construct, which 
encompasses COPD, and the decision to reinstate the use of the 
presumptions based on years of employment, results in claims awards 
regardless of the x-ray evidence presented in the case. Today, an award 
to a miner with any stage of simple pneumoconiosis diagnosed by x-ray 
or autopsy is very rare indeed.
    The Federal Black Lung program is, for many, viewed as a workers 
compensation program, most especially with respect to coal mine 
operations being required to obtain commercial insurance coverage as an 
add-on to their regular workers compensation polices. The operation of 
the program has been and continues to be very different from the 50 
State workers compensation programs. This is most apparent in the lack 
of finality to the claim process. All 50 State workers compensation 
programs have statutes of limitations on the filing of claims--
generally 3 to 5 years. Once a claim has been formally litigated and a 
decision rendered, appeals must be filed within short periods of time 
and all claims reach a final status as to the payment of benefits or a 
denial of benefits in, at most, a few years. The only statute of 
limitations applicable to Federal Black Lung claims--that the claimant 
must file the claim within 3 years of the date the claimant knew or 
should have known that he was totally disabled under the Act--has been 
undermined by DOL decisions and very rarely successfully invoked. A 
claimant leaving the workforce today, usually in his midfifties, may 
wait 10, 20, 30 or more years to file a first claim. If that claim is 
denied, he may re-file it as many times as he chooses to (some 
claimants have re-filed a dozen times or more).
    Successful Black Lung compensation programs have operated alongside 
\1\ the Federal Black Lung program in the Eastern coal mining States. 
Generally, the compensation has been proportional to the extent to 
which the claimant has CWP and to the degree of loss of lung function. 
A key difference between the Federal and the State black lung programs 
is that in U.S. workers compensation, settlements of future claim 
liabilities are permitted, even encouraged, by Workers Compensation 
Judges in all but a few States. Thus, complex issues such as the 
interactions of COPD and CWP are worked out among the parties with a 
full and final resolution of the claim. Claim settlements have never 
been permitted with respect to the Federal Black Lung Program. Although 
settlements should be permissible, legally DOL has opposed all efforts 
to settle claims and demanded and received deference for the agency's 
interpretation of the Act. DOL has argued in court that claimants and 
their attorneys cannot be trusted to bargain for a fair settlement, 
even though all settlements would require approval by an ALJ.
---------------------------------------------------------------------------
    \1\ Claimants cannot get paid twice--Federal benefits are reduced 
dollar-for-dollar by State benefits on a monthly basis.
---------------------------------------------------------------------------
    While Federal Black lung claims pay lower monthly benefits than the 
monthly benefits paid for total disability under almost any State 
worker's compensation act (and certainly those paid in the Eastern coal 
mining States), the Federal benefit is subject to a cost of living 
adjustment each year. The result is that a Federal Black Lung claim for 
a married miner in his midfifties will pay out over $500,000 making 
Federal Black Lung claim values equivalent to, or in excess of, 
permanent total workers compensation awards in the Eastern coal mining 
States. Claims from older miners or dependents are of course less, but 
still exceed $100,000 for even elderly married miners, and medical 
costs, which are not meaningfully cost-controlled by DOL, are 
skyrocketing.

                               Conclusion

    The course of the Federal Black Lung Program appears to be headed 
for a steep increase with respect to the number of claim awards, both 
from the miners who have recently exited the workforce, and from the 
tens of thousands of miners who exited the workforce over the last 10 
years or more. This is not due to an increase in the incidence of 
disease, aside from some evidence of slight increases in x-ray evidence 
of pneumoconiosis in narrow Appalachian ``hot spots.'' CWP Disease 
diagnosed by Category 2o or higher x-rays is not driving the awards in 
any area of the country which would occur if the incidence of serious 
CWP was increasing. Rather, the current construct of the regulations 
governing the program and its administration denying any possibility of 
finality and any possibility of distinguishing dust disease from 
smoker's disease are the reasons why claims are being awarded today at 
much higher levels than we have seen over the last 20 years. To 
continue the current progression will produce financial consequences 
not seen since the 1970s, and bring sharply into focus the fundamental 
unfairness of the compensation process for employers, insurers and, in 
fact, for many claimants who are coaxed into repeated filings and 
related litigation over decades.
    I would suggest that the ongoing focus be on:

    (1) addressing abuses, from all sides that have been part of this 
program since its inception, to ensure that those truly disabled from 
lung disease arising out of their coal mine employment are fairly 
compensated;
    (2) removing hurdles that preclude the expeditious disposition of 
claims;
    (3) bringing certainty and finality to the claims adjudication 
process to ensure the financial viability of the program into the 
future.

    Senator Casey. Mr. Briscoe, thank you very much. I know we 
just had a vote that was called, so I'll be brief in my first 
question or two, and then I want to turn to Senator Harkin so 
he can ask his question or two, whatever he has, and then be 
able to vote.
    Mr. Cline, I wanted to focus on the end of the recitation 
of the case of Mr. Fox. I want to make sure I heard you right. 
You talked about what happened to him, and I'm looking at your 
testimony where you say,

          ``If Mr. Fox had been able to get out of the dust 
        back in 1999, as the act intended, he might have lived 
        long enough to see his two grandchildren.''

    I want to make sure I understood the timeframe here. You're 
saying that, in essence, he was in the mines, working for--I 
thought you said something on the order of 8 years that he 
would not have been working had there been a different 
determination made, a determination that flowed from the 
fraudulent pathology reports. Is there anything about that that 
I'm not stating accurately?
    Mr. Cline. Yes, you have that correct, Senator.
    Senator Casey. So just walk through again why he was in the 
mines for--you said for 8 years.
    Mr. Cline. He filed his first claim in 1999 and was 
initially approved but lost on appeal. And because he didn't 
have the modest benefits from the workers' compensation 
program, he needed to continue to work to support his family. 
So he worked until 2006 when he was just too short of breath to 
continue. He progressed during that time period from mild 
impairment to severe impairment and was in need of a lung 
transplant. He filed a second claim, and in the second claim, 
he prevailed, in 2008, 1 year before he died.
    Senator Casey. In terms of what Congress can do or should 
do, in your judgment, what would you hope we would do if you 
had to itemize one or two actions you would hope we'd take?
    Mr. Cline. The first would be to require the disclosure of 
at least all radiographic interpretations and pathology 
interpretations developed for the purpose of litigation just to 
protect the miner's health and to deter misleading the judges.
    Senator Casey. I may have more questions for you. I wanted 
to go to Mr. Bailey before turning to Senator Harkin.
    Mr. Bailey, thank you for the testimony. It's very 
difficult, I think, for any witness to come before a panel in 
the U.S. Senate to talk about your own life and your own 
experiences. That's particularly difficult. With no disrespect 
to other witnesses here or on other occasions, it's easier to 
talk about something when it doesn't involve your own 
individual experiences and that of your family. So we're 
especially grateful for your willingness to talk about not just 
an issue or a public policy question, but really a question 
that involves your work, your life, and your family.
    You expressed in going through your testimony--as much as 
you focused on your own experiences and your own work 
situation, you talked as much about others as you did about 
yourself. And, in particular, you talked about those who don't 
have the representation that you've had with the United Mine 
Workers.
    I'm assuming that you know other miners now, or have known 
them over the years, that did not have representation and were 
on their own. Could you talk about that or highlight some of 
those friends of yours or people you're acquainted with?
    Mr. Bailey. Thank you. A lot of the miners that don't work 
at union mines--it's like one on one. You're there yourself. 
You're alone. You're sometimes lucky to even maintain your job, 
much less receive any benefits after that job is over due to 
illness and different reasons. So it makes it very hard for 
them to get what they need, because they don't know where to 
go.
    Senator Casey. I'll turn to Senator Harkin, because I know 
we're short on time. Thank you.
    The Chairman. Thank you, Mr. Chairman.
    Mr. Cline, when you take these cases, is there any 
compensation you receive, let's say, at the first instance or 
maybe at the first filing or after the first appeal? Or do you 
have to wait until the absolute end before you get compensated?
    Mr. Cline. You have to wait until the absolute end, until 
the claim is finally decided, and you only get paid if the 
claimant prevails.
    The Chairman. And that could be a couple of years or 3 
years.
    Mr. Cline. It's more like four or five or longer, Senator.
    The Chairman. I'm very familiar with that--and I'm sure you 
are, Mr. Chairman--the social security claimants' 
representatives, NOSSCR, the National Organization of Social 
Security Claimants' Representatives, where the lawyers take up 
social security disability claims that have been denied, and 
then they go through the appeal process.
    But it seems to me that there has to be some way of, in the 
first instance, helping attorneys be able to represent them and 
to be compensated somewhat along the track. Otherwise, how are 
attorneys going to pick up the cases?
    Mr. Cline. The legislation you've been working on with 
Senator Rockefeller and Senator Casey is a step in the right 
direction. Then if the claimant prevails at the administrative 
law judge level, they might get some payment without waiting 
until the case is finally----
    The Chairman. Exactly. That's in our legislation, and we 
hope to have it introduced, I hope, Mr. Chairman. But I wanted 
to make that point clear. That's why you don't get many 
attorneys taking this up. I mean, they have families to feed. 
They've got things they've got to do.
    Mr. Cline. Absolutely.
    The Chairman. So they can't continue to just hope that 4 or 
5 years from now they're going to get paid.
    Mr. Cline. It's a ridiculous expectation. I wanted to add, 
if I could, just one thing. Mr. Bailey and Gary Fox both had 
simple pneumoconiosis before they had complicated 
pneumoconiosis. If simple couldn't progress, they wouldn't get 
complicated.
    The Chairman. Dr. Parker, let me just ask you--is black 
lung disease a progressive illness?
    Dr. Parker. Yes, sir. Absolutely, yes, sir. It can progress 
after coal mine dust exposure ceases, and it can be certainly 
progressive while coal mine dust continues to accumulate in 
workers' lungs.
    The Chairman. I thought I heard from Mr. Briscoe, or at 
least in his written testimony, in which he said that once 
you're out of the mines, it doesn't progress anymore. He said, 
``This is contrary to 40 years of specific medical studies of 
CWP that clearly show that CWP rarely, if at all, progresses 
once the exposure to coal mine dust has ended.''
    Mr. Briscoe, is that so? Are there 40 years of evidence?
    Mr. Briscoe. Yes, sir, there are. That is the predominant 
medical literature. We're not saying it never progresses. It 
certainly can in isolated cases. The question is one of degree. 
Does simple pneumoconiosis progress in every case? We don't 
believe so.
    The Chairman. I'm just a layman at this, but I watched what 
happened to my own father. When he was younger, we all assumed 
he had black lung, but that was before people called it that. 
But all those people who worked in mines, as they progressively 
got older and their systems became less immune to illnesses and 
stuff, they became more and more inundated with things like 
pneumonia, lung problems, things like that.
    In other words, when you're young, perhaps the effect of 
simple black lung or pneumoconiosis--I can hardly pronounce 
it--is not that pronounced. But as you age, it becomes more 
pronounced on you. That's why I keep telling people that don't 
think about black lung as something that totally disables a 
person--what about someone like Mr. Bailey that can't even play 
with his grand kids, can't even go for a walk? I mean, it's 
that kind of a situation that really takes away your enjoyment 
of life in your sixties and seventies.
    Mr. Briscoe. Senator, we're really talking about two 
separate issues here. The medical literature indicates that 
simple coal workers' pneumoconiosis--let's say somebody leaves 
the mines with category one simple pneumoconiosis. It is very 
rare for that claimant to develop category two or three. The x-
rays don't progress.
    Lung function does decline with age. It can also decline 
with smoking. It can decline for lots of other reasons. The 
issue is causality here. Does coal mine dust exposure causing a 
category one black lung situation--is that going to progress to 
category two or three down the road? The answer is there's no 
basis in the literature for that.
    The Chairman. Dr. Parker.
    Mr. Briscoe. Will the lung function decrease? Yes.
    The Chairman. Dr. Parker.
    Dr. Parker. NIOSH has a coal mine dust criteria document 
that was published a number of years ago, and it's the basis of 
MSHA changing some of the recent rulemaking. And it, along with 
substantial medical literature, makes it very clear that lung 
function and radiographic change can progress after dust 
exposure ceases.
    The Chairman. Mr. Bailey, thank you for being here, and 
thank you for fighting the good fight and not giving up. You're 
a strong person and don't give up. Keep fighting, and I hope 
you get that lung transplant.
    Mr. Bailey. Thank you, and I'd like to add that I'm also a 
nonsmoker.
    The Chairman. I read that in your testimony. You haven't 
smoked since you were a teenager or something like that?
    Mr. Bailey. Yes. I used to sneak around at 13 or 16, when I 
could.
    [Laughter.]
    The Chairman. Exactly.
    Mr. Bailey. I learned better.
    The Chairman. Thank you, Mr. Bailey.
    Thank you, Mr. Chairman.
    Senator Casey. Mr. Chairman, thank you, and we're grateful 
that you're here with us and grateful that you have been in the 
trenches on these issues for many, many years.
    I know we have to vote, but before we wrap up--and I have a 
number of questions for the record that I'll submit.
    Mr. Bailey, you submitted a picture to us of you. I guess 
this is you over here, second from the right on the back. I 
won't ask you to identify everybody.
    Mr. Bailey. The good-looking one.
    [Laughter.]
    Senator Casey. Well, let me wrap up. I know that we have 
lots more we could cover. But let me wrap up. First, we'll have 
a period within which other Senators can submit questions for 
the record.
    And as Chairman Harkin noted, we're working with Senators 
Rockefeller, Harkin, and Manchin, and Representative George 
Miller to continue working with the Department and NIOSH to 
make sure we're doing everything we can to level the playing 
field for hardworking miners who have had the misfortune of 
developing black lung disease and now face the uphill battle, 
the struggle for benefits.
    For all witnesses, please know that members may want to 
submit additional questions for your written responses, as I 
mentioned.
    And for members who want to submit statements for the 
record or questions, the hearing record will be open for 7 
days. And with that, unfortunately, because of time, the 
hearing is adjourned. Thank you very much.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

               Prepared Statement of Senator Rockefeller

    Senator Casey, thank you for holding this very important 
hearing today to discuss pneumoconiosis, commonly referred to 
as ``Black Lung'' disease. There are few Members of Congress 
who match your commitment to protecting the health and safety 
of our Nation's coal miners, particularly as it relates to this 
debilitating and deadly disease.
    Today's hearing provides an important opportunity to both 
educate our fellow Senators about how this terrible disease 
impacts coal miners and their families, and impress upon our 
colleagues our shared obligation to make sure that coal miners 
who are suffering get the benefits they deserve under the 
Federal Black Lung Benefits Program.
    I look forward to hearing from our distinguished panel of 
government officials who will testify about our Federal Black 
Lung program and how we can improve it: Deputy Secretary of 
Labor, Christopher Lu, who oversees many Federal programs that 
are important to our coal miners; Solicitor of Labor, Patricia 
Smith, who defends our health and safety laws against a 
seemingly endless barrage of attack from companies who would 
rather do the bare minimum when it comes to protecting their 
employees from injury and illness; and Director of the National 
Institute for Occupational Safety and Health, Dr. John Howard, 
whose agency monitors the prevalence of Black Lung disease and 
whose work has proved invaluable to our understanding of how we 
can protect miners from developing this disease in the first 
place.
    We are also extremely fortunate to have three West 
Virginians testify today, each of whom is on the front lines of 
the battle to make sure that coal miners suffering from Black 
Lung disease are provided the benefits and treatment they so 
badly need and deserve: John Cline, an attorney who has devoted 
his career to litigating cases on behalf of coal miners and 
widows suffering from this dreadful disease; Dr. Jack Parker, 
Pulmonary Section Chief from the West Virginia University 
Department of Medicine and a recognized expert on Black Lung 
disease; and Robert Bailey, a former coal miner who knows 
first-hand what it is like to struggle each and every day with 
Black Lung disease and the unfair burden our laws and 
litigation system place on miners who are simply trying to 
access their Federal benefits.
    Since first coming to West Virginia 50 years ago, to the 
small mining community of Emmons, I have spent countless hours 
talking with miners and their families about the toll this 
devastating and deadly disease takes on men and women who have 
worked their entire careers mining coal. They tell me that 
everyday activities most people take for granted--walking from 
one room of the house to another, mowing the lawn, hunting and 
fishing, playing with their grandchildren--become all-but-
impossible. These once vibrant, strong, independent men and 
women find themselves confined to a chair in the living room, 
hooked up to an oxygen tank nearly 24 hours a day just so they 
can continue breathing.
    Listening to their stories reaffirms in me the simple yet 
extremely important principle that coal miners--who work long 
hours to support their families--should not have to live in 
fear that 1 day they will develop a respiratory disease that 
will prevent them from experiencing the simple joys in life.
    One of the most troubling aspects of the public debate over 
Black Lung disease is that many people believe it is a thing of 
the past--that somehow coal miners are no longer at-risk of 
developing the disease. The sad reality, however, is that the 
disease is very real and on the rise in coal mining communities 
throughout the country.
    In the 1970s, shortly after Congress passed major 
legislation to combat Black Lung disease, 6.5 percent of all 
active coal miners had the disease. By the 1990s, that number 
had dropped to 2.1 percent. But, in the 2000s, we saw the 
prevalence of Black Lung disease increase to 3.2 percent--the 
first increase of the disease in three decades. Between 1999 
and 2009, almost every single region in the country saw an 
increase in the percent of miners suffering from Black Lung 
disease. Some areas in West Virginia, Pennsylvania, Virginia, 
and Kentucky are seeing rates as high as 9.0, 10.0, and even 
13.2 percent.
    Sadly, research is also showing that younger miners are now 
developing more progressive forms of the disease earlier in 
their careers. These findings were confirmed as part of the 
investigation into the Upper Big Branch disaster, which took 
the lives of 29 coal miners in West Virginia. Autopsies of 24 
victims revealed that 17 of them, or 71 percent, suffered from 
Black Lung disease. Even more alarming is that five of those 
victims with Black Lung disease had been working for less than 
10 years underground, including one miner who was only 25 years 
old. So, while the explosion that took their lives did so 
almost instantaneously, another disaster, hidden from view, was 
taking their lives more slowly--but just as tragically.
    This rise in Black Lung disease is unacceptable. Congress 
and the Administration have a solemn obligation to provide coal 
miners with every protection from this debilitating, incurable, 
but preventable disease. That is why I was proud to join 
Secretary of Labor Thomas Perez in West Virginia in April to 
announce the finalization of new rules that--for the first time 
in 40 years--will lower coal miners' exposure to the respirable 
dust that causes Black Lung disease. The Administration should 
be commended for taking this major step forward. With strong 
enforcement and implementation, these rules will undoubtedly 
save lives and improve the quality of life for current and 
future generations of coal miners.
    While the primary purpose of that rule is to prevent Black 
Lung disease, today's hearing rightly focuses on the equally 
important goal of providing assistance to miners who already 
suffer from this dreadful disease. Sadly, as we will learn from 
today's testimony, accessing Federal Black Lung benefits 
remains an uphill battle for coal miners and their families.
    Congress has long known that coal miners with Black Lung 
disease are at a tremendous disadvantage when attempting to 
access Federal benefits. Several years ago, I asked the 
Government Accountability Office to conduct a comprehensive 
review of the Federal Black Lung Benefits Program and to 
identify barriers that miners, as well as their survivors and 
dependants, face when applying for benefits. That report, 
released in 2009, concluded that ``there are a number of 
administrative and structural problems that could impede the 
ability of eligible miners to pursue claims.'' Among the 
challenges identified in that report were a difficulty finding 
legal representation and developing sound medical evidence, as 
well as a lack of financial resources to cover the costs 
associated with supporting their claims.
    The findings of that report are extremely troubling--but 
last year we learned from a Center for Public Integrity and ABC 
News investigation that the problems in our Federal Black Lung 
Benefits Program are much worse than many of us had imagined. 
That investigation confirmed not only that miners have fewer 
legal, financial, and medical resources, it also documented 
numerous cases in which coal operators and their attorneys 
intentionally withheld evidence of the existence of Black Lung 
disease from miners, widows, and even judges. At least one 
company-hired doctor profiled in that investigation had never 
diagnosed a miner with complicated pneumoconiosis in more than 
1,500 cases since 2000.
    In other words, under our current system, miners with 
little or no financial resources are forced to litigate their 
claims against deep-pocketed coal operators, some of whom--with 
help from corporate lawyers and hired doctors--are all-too-
willing to engage in unethical practices to evade 
responsibility for paying monthly benefits and health care 
expenses for miners suffering from Black Lung disease. These 
reports and investigations make absolutely clear that our 
system is broken and must be reformed.
    To make matters worse, these cases can literally drag on 
for years, depriving coal miners of the certainty that should 
come with qualifying for Federal Black Lung benefits. Some of 
these delays result from seemingly endless appeals and may 
require structural reforms to the program, but Congress can 
also help by providing funding to hire additional 
administrative law judges to decide these cases in a timely 
manner. Right now, it takes 429 days for a Black Lung case just 
to be assigned to an administrative law judge. That is way too 
long.
    To be clear, the Democratic majority in Congress, along 
with President Obama, has taken action in recent years to 
improve our Black Lung system. As part of the Affordable Care 
Act, we passed one of the most significant protections for 
victims of Black Lung disease in decades. That law restores a 
presumption that long-term miners with disabling respiratory 
impairments are entitled to Black Lung benefits, and also 
automatically entitles widows to Black Lung benefits if their 
spouses were receiving benefits at the time they passed away.
    The Department of Labor has also been working to restore 
fairness to our Black Lung system by establishing a new pilot 
program to help miners develop additional medical evidence to 
support their claims; partnering with the National Institute 
for Occupational Safety and Health to train its staff on 
medical and scientific issues associated with Black Lung 
claims; instructing its staff to disregard medical reports from 
at least one doctor whose diagnoses have proven to be 
unreliable; and, notifying claimants of their right to reopen 
their cases if that doctor's testimony resulted in the denial 
of their benefits.
    The Department has also announced that it will be working 
on a new rule to address issues surrounding the disclosure of 
medical evidence in Black Lung cases. This is an issue I raised 
with Secretary Perez earlier this year, and I am continuing to 
urge the Department to do everything in its power to prevent 
coal operators and their attorneys from misleading our courts 
and withholding critical medical evidence from miners and their 
families.
    I appreciate the Department's willingness to take steps to 
make sure that miners can access the Federal benefits they 
deserve, but I also believe that Congress itself has an 
obligation to look at our laws and make corrections when 
injustices arise.
    Senator Casey and I have a bill, The Black Lung Health 
Improvements Act, which addresses some of the systematic 
problems we have seen in our Black Lung system. Our legislation 
expands miners' access to medical evidence; creates a program 
to help miners secure legal representation when applying for 
benefits; and, makes grant funding available for research into 
the disease. He and I are now working together with Senator 
Harkin, Senator Manchin, and Congressman George Miller to 
revise and update that bill to address some of the newer issues 
that were raised in the Center for Public Integrity and ABC 
News investigation.
    I am confident today's hearing will provide invaluable 
information that will help us craft a bill that restores 
fairness to our Black Lung system and provides miners, their 
spouses, and dependants with the support they need and deserve.
                                ------                                


                 Prepared Statement of Senator Manchin

    First, I would like to thank Senator Casey for holding this 
hearing. Black lung and our miners who suffer its devastating 
effects do not get the attention they deserve. We need to work 
together to do everything in our power to end black lung and I 
appreciate the committee recognizing this need.
    I would also like to thank all of the witnesses, including 
those from West Virginia. Specifically, I appreciate Mr. Bailey 
taking the time to share his experiences.
    I am proud to come from West Virginia, where we produce the 
coal that has powered this Nation for more than a century. Our 
miners have mined the coal that keeps our lights on, heats our 
homes and powers our businesses and it is unacceptable that 
they still face the threat of black lung disease.
    As Governor and as a U.S. Senator, the health and safety of 
our miners has always been and will continue to be my top 
priority. During my time in the Senate, I am proud to have 
worked with Senator Rockefeller, as well as Senators Casey and 
Harkin, to ensure that our miners have every available 
opportunity to access black lung benefits. As we saw with the 
ABC News and Center for Public Integrity reports last year, too 
often our miners face insurmountable obstacles to access 
benefits they have undeniably earned. Since those reports, our 
offices have worked to address concerns with the Department of 
Labor's proposal to change evidentiary standards in black lung 
cases that could unfairly burden miners, and we have come 
together to voice opposition to cuts in funding to the Office 
of Administrative Law Judges. Our offices, along with 
Congressman George Miller, continue to work on legislation to 
more fully address the issues raised in the CPI and ABC News 
Reports.
    I am also proud to have worked with Senator Rockefeller and 
Congressman Rahall to fight for adequate Federal funding for 
West Virginia's Black Lung Clinics. West Virginia is home to 
more black lung clinics than any other State. These clinics 
provide not only medical care, but benefits counseling as well, 
something we have seen is sorely lacking. In fact, Mr. Bailey's 
testimony mentions the clinics' role in helping one of his 
colleagues.
    I ask that the Administration continue to work with our 
offices to ensure that all miners have access to adequate 
medical care and legal counseling, and to ensure that unfair 
practices do not delay or deny a miner their benefits.
                                ------                                

                     Congress of the United States,
                                      Washington, DC 20510,
                                                 February 18, 2014.
President Barack Obama,
The White House,
1600 Pennsylvania Avenue NW,
Washington, DC 20500.

    Dear Mr. President: We are writing to highlight the need for action 
to address budget and staffing cuts in the Department of Labor's (DOL) 
Office of Administrative Law Judges (OALJ), which is resulting in 
untenable delays in adjudicating claims, such as claims under the Black 
Lung Benefits Act and alleged violations of employment law. These 
delays directly and severely impact the lives of workers throughout the 
country, placing an undue financial and emotional burden on the 
affected individuals and their families.
    In an April 16, 2013 memo from Chief Judge Stephen Purcell to then-
Acting Secretary Seth Harris, Judge Purcell expressed concerns that the 
OALJ is rapidly nearing the point where the ever-growing backlog of 
cases will become unmanageable due to the lingering effects of 
sequestration and furloughs, increased resource requests from other DOL 
agencies, and inadequate staffing support of judges. The memo also 
details an inability to replace judges who have or will soon retire 
with qualified judges with substantial litigation experience due to the 
lack of funding and relocation expense when qualified judges can't be 
found locally.
    Hearings concerning Black Lung benefits and Longshore Workers' 
compensation constitute the largest part of the office's work, in 
addition to the growing number of Permanent Labor Certification (PERM) 
Immigration cases. The Department's administrative law judges also hear 
and decide cases arising from over 80 labor-related statutes and 
regulations, including whistleblower complaints involving corporate 
fraud, nuclear, environmental, pipeline safety, aviation, commercial 
trucking, railways, and other statutes; minimum wage disputes; 
enforcement actions involving the working conditions of migrant farm 
laborers; disputes involving child labor violations; and civil fraud in 
Federal programs.
    OALJ is being overwhelmed with cases as their staffing level 
decreases. The number of judges nationwide is down to 35, from 41 
earlier this year and 45 a decade ago. For fiscal year 2013 there were 
a total of 11,325 total cases pending, almost doubled from a decade 
ago. The costs and delays in filling vacancies, the inability to assign 
new cases to departing judges and the inherent learning curve for new 
judges further reduces the Agency's ability to efficiently and 
effectively adjudicate cases. Meanwhile, new and pending cases are up 
68 percent and 134 percent, respectively, since 2009, as the attached 
chart illustrates. These staffing difficulties and increased workload 
lead directly to longer delays in adjudicating cases.
    Black Lung claimants, for example, are waiting an average of 429 
days for their cases to be assigned to an administrative law judge and 
an additional 90-120 days after assignment before their cases go to 
court. That's over 520 days for claimants, many too disabled to work, 
just to start making the case that they deserve benefits. Miners who 
were not awarded benefits during their initial filings before DOL 
district directors face a specific burden from these delays. They 
cannot begin receiving these badly needed benefits that are necessary 
to continue supporting their families until their cases are finally 
adjudicated. Justice delayed is justice denied for those coal miners 
suffering the debilitating effects of Black Lung.
    The fiscal year 2014 request level of $26.7 million will not reduce 
the growing backlog, nor will it meet the need for the projected 
increase in casework driven by new statutes and more cases generated by 
other DOL agencies. We fully support increases in funding for 
enforcement of our labor laws, but believe that these increases should 
be met with corresponding increases for administrative law judges to 
hold hearings and issue opinions in a timely manner. Unfortunately, the 
current funding level precipitates even longer delays in the 
adjudication of claims going forward.
    We encourage the White House to make the elimination of this 
unsustainable backlog of cases a priority in the fiscal year 2015 
budget. Each day a case is delayed adds to the hardship for the 
affected individuals, who simply want the timely justice they so 
rightly deserve.
            Sincerely,
                              Senator Robert P. Casey, Jr.,
                            Senator John D. Rockefeller IV,
                                       Senator Joe Manchin,
                              Representative George Miller,
                                Representative Bobby Scott,
                               Representative Joe Courtney.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    ALJ Law Clerk levels change during a fiscal year. The numbers noted 
above are derived from staffing levels at or near the beginning of each 
fiscal year.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                 ______
                                 
                                 Lenahan & Dempsey,
                                   Scranton, PA 18501-0234,
                                                     July 15, 2014.
Hon. Robert Casey, Jr.,
607 Hart Senate Office Bldg.,
Washington, DC 20510.

    Dear Senator Casey: I am writing today to provide you a summary of 
the long and tortured history of Patricia Padagomas' pursuit of Federal 
Black Lung Benefits. Please note that when I spoke to Mrs. Padagomas, 
she broke down crying. She faces the imminent loss of her home; she 
cannot afford to travel to Washington DC for both financial and health 
reasons. While she cannot be in Washington physically, she would like 
her story told and she has given me full authority to add her case to 
the public record, for the July 22, 2014 Employment and Workplace 
Safety Subcommittee hearing titled: Coal Miners' Struggle for Justice: 
How Unethical Legal and Medical Practices Stack the Deck Against Black 
Lung Claimants.
    After not appealing an initial denial of benefits, her husband, 
Edward Padagomas, filed a claim in September 2, 2008. During the 
pendency of this claim, Edward died on October 16, 2008. A widowed 
Patricia then filed her own claim on November 3, 2008. Almost 6 months 
later the Department of Labor issued proposed Orders denying both 
claims. Mrs. Padagomas requested a hearing before an administrative law 
judge.
    Not until a year later, on April 27, 2010, did the administrative 
law judge conduct the hearing. Not until almost another year later, on 
February 2, 2011, did the administrative law judge issue a decision 
denying benefits.
    In her decision the administrative law judge found that the 
claimant did not establish that the miner had pneumoconiosis (``black 
lung''). Mrs. Padagomas appealed this decision to the Benefits Review 
Board.
    After another year passed, the Benefits Review Board issued a 
Decision and Order on February 23, 2012. In this Decision and Order the 
Board agreed with Mrs. Padagomas' argument that the administrative law 
judge improperly reviewed the x-ray and medical opinion evidence of 
record and remanded both cases to the administrative law judge for 
further review.
    Eighteen months later, on September 19, 2013, the Administrative 
Law Judge issued her second Decision and Order again denying benefits. 
This time the administrative law judge found that Mr. Padagomas did 
have black lung but, in a convoluted and circuitous decision, 
improperly and irrationally found that during his life time the miner 
was not totally disabled due to black lung and that black lung did not 
contribute to his death.
    Mrs. Padagomas appealed both of these denials again to the Benefits 
Review Board. The matters have been fully briefed as of February 10, 
2014.
    In Mrs. Padagomas' letter reply brief, she correctly noted for the 
Board that:

    a. the director never filed a cross-appeal to the administrative 
law judge decision and order challenging any administrative law judge 
finding that Mrs. Padagomas established that her husband had black 
lung; and
    b. because of the director's failure to file a timely cross-appeal, 
the director waived any right to have the issue of the existence of 
black lung in this claim.

    Despite their failure, the director, in a blatant and brazen 
disregard for the applicable statutes, regulations and case law, 
irrationally tried to raise this issue once again in their brief.
    In another cruel twist of fate, today, I reviewed the Benefits 
Review Board Order affirming (more like rubber stamping) the 
administrative law judge denial of benefits. The decision was long on 
reiteration of the evidence of record but very short on any proper 
analysis of the evidence and the law. Mrs. Padagomas is again 
disappointed. She has authorized me to appeal this to the United States 
Court of Appeals and I will take the steps to file this appeal.
    Edward Padagomas died over 5 years ago. He never saw justice. 
Patricia Padagomas suffers financially and is in poor health. The hope 
is that she will see some measure of justice.
            Very truly yours,
                                 George E. Mehalchick, Esq.
                                 ______
                                 
                 Bowles Rice LLP, Attorneys At Law,
                                      Charleston, WV 25301,
                                                 February 18, 2014.
Inova Fairfax Hospital,
Dr. Steven Nathan, Director of Lung Transplants,
Attn: Rachel,
3300 Gallows Road,
Falls Church, VA 22042.

Re: Robert Bailey, Jr.; US & C Claim #4533214926; Date of injury: 02/
        23/2009; DOB: 06/22/1953

    Dear Dr. Nathan: Patriot Coal hereby authorizes the additional 
evaluation and testing of Mr. Robert Bailey, Jr., requested for June 
12, 2014, for an evaluation only for a possible lung transplant. This 
authorization does not authorize any lung transplant procedure and 
Patriot reserves the right to approve or disapprove any further testing 
or transplantation in keeping with the applicable regulations and law. 
We continue to note that we expect that any evaluation will include any 
appropriate procedure for definitively determining the disease process 
present in the lungs of Mr. Bailey which necessitates this evaluation 
or treatment and that copies of all records, reports and results of the 
evaluation will be sent to my attention.
    If you have any questions, please do not hesitate to contact me.
            Very truly yours,
                                          Paul E. Frampton.
                                 ______
                                 
             United Mine Workers of America (UMWA),
                                   Triangle, VA 22172-1779,
                                                   August 20, 2014.
Hon. Robert P. Casey, Jr.,
Employment and Workplace Safety Subcommittee,
U.S. Senate,
393 Russell Senate Office Building,
Washington, DC. 20510.

    Re: Thank You and Update On Coal Miner and Black Lung Advocate 
Robert Bailey

    Dear Senator Casey: Thank you for being a long-time friend of coal 
miners. We greatly appreciate your efforts to reduce the backlog of 
Federal black lung claims, and are especially grateful that you 
organized the hearing last month at which UMWA-member and black lung 
advocate Robert Bailey had an opportunity to address the Employment and 
Workplace Safety Subcommittee. In addition to our thanks, I want to 
provide you an update as to Mr. Bailey's health and ongoing fight to 
secure from his former employer a firm commitment to pay for a much-
needed double lung transplant.
    You may recall at last month's hearing that Mr. Bailey testified to 
the difficulty he experienced obtaining pre-authorization from Patriot 
Coal for a medical evaluation to determine the necessity of a lung 
transplant. Initially, the company denied payment authorization for a 
medical evaluation. After significant lobbying from Mr. Bailey, Patriot 
Coal's attorney Paul Frampton sent Mr. Bailey a letter indicating that 
the company would pay for the evaluation.
    However, Mr. Frampton's letter explicitly refused authorization for 
a lung transplant.
    In the week prior to the July 22nd hearing, Mr. Bailey spent 
several days undergoing medical evaluation at Inova Hospital in 
Fairfax, VA. Shortly after the hearing, he received word that the 
doctors who supervised and reviewed his evaluation prescribed a double 
lung transplant. When Mr. Bailey returned to West Virginia from 
Washington, DC, he experienced extreme shortness of breath and other 
complications related to his disease. The weekend after the hearing, he 
was admitted to the hospital near his home in Princeton, WV, where he 
remained for 2 days of treatment and observation.
    While Mr. Bailey received medication that has somewhat stabilized 
his condition in recent weeks, he is unfortunately experiencing the 
progressive deterioration wrought by black lung. He urgently needs a 
transplant. Unfortunately, Mr. Bailey has informed me that Patriot has 
not yet approved his transplant. Rather, he reports the last 
correspondence he received from Patriot is a lengthy questionnaire 
asking Inova to explain the protocols used in its medical evaluation to 
determine that Mr. Bailey needs the transplant.
    We are working with Mr. Bailey and the Department of Labor with a 
hope that Mr. Bailey will soon receive his much-needed transplant. 
Thank you for your attention to this and the thousands of other cases 
of miners having to fight too long to obtain black lung benefits.
            Sincerely,
                                            Arthur Traynor,
                                         Associate General Counsel,
                                    United Mine Workers of America.
    [Whereupon, at 11:03 a.m., the hearing was adjourned.]

                                  [all]