[Congressional Record Volume 160, Number 143 (Thursday, November 20, 2014)]
[Extensions of Remarks]
[Pages E1660-E1662]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              BLACK LUNG BENEFITS IMPROVEMENT ACT OF 2014

                                 ______
                                 

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                      Thursday, November 20, 2014

  Mr. GEORGE MILLER of California. Mr. Speaker, today I am joining 
Representatives Cartwright, Scott, Courtney, and Rahall in introducing 
the Black Lung Benefits Improvement Act of 2014.
  The Black Lung Benefits Act was enacted in 1969 to provide health 
care and modest benefits to coal miners who develop black lung disease, 
also known as coal workers' pneumoconiosis, which is a crippling 
respiratory disease that has left generations of miners tethered to 
oxygen tanks. Today, the black lung benefits program is failing far too 
many miners and their survivors because there is an unfair disparity in 
medical and legal resources between miners and coal operators when it 
comes to establishing eligibility for benefits.
  This legislation seeks to level the playing field by ensuring that 
miners have equal access to medical evidence, better access to legal 
resources, a remedy for those whose claims were denied due to recent 
discoveries of discredited medical evidence. In addition, it includes a 
requirement that the Department of Labor improve the timeliness of 
benefit decisions and an adjustment of benefit payments so that miners 
and their survivors receive the cost of living increases that Congress 
intended.
  Black lung disease has killed more than 76,000 miners since 1968. 
Rates of black lung disease dropped steadily after the Federal Coal 
Mine Safety and Health Act of 1969 set enforceable limits on exposure 
to coal mine dust. However, rates are now on the rise again, according 
to the National Institute for Occupational Safety and Health, or NIOSH. 
The number of people with the most severe form of black lung disease 
has spiked ten-fold over the past 15 years. In a heartbreaking example 
of the disease's prevalence, autopsies of the 24 miners who died in the 
Upper Big Branch mine explosion in 2010 revealed that 17 of these 
miners had black lung. And the Department of Labor expects 7,300 black 
lung benefit cases to be filed in fiscal years 2014 and 2015, an 
increase of 35 percent since fiscal year 2012.
  The Black Lung Benefits Improvement Act of 2014 seeks to level the 
playing field for miners and strengthen our black lung benefits program 
in nine key ways.
  First, it addresses the lack of legal assistance available to miners. 
The determination of a claimant's eligibility for black lung benefits 
often requires complex, adversarial litigation, but resource 
disparities between coal companies and claimants make it difficult for 
many miners and survivors with meritorious claims to prevail. The 
Government Accountability Office found that many claimants under the 
Black Lung Benefits Act are not equipped with the medical and legal 
resources necessary to develop sufficient evidence that can meet the 
requirements for benefits. Miners often lack complete and reliable 
medical evidence, which increases the risk that the individuals who 
review claims for benefits will be presented with insufficient medical 
evidence. Similarly, without better options for legal representation, 
significant numbers of such claimants proceed

[[Page E1661]]

through a complex and potentially long administrative process without 
the resources that Department of Labor officials and black lung disease 
experts note are important for developing evidence and supporting their 
claims. Only a quarter of claimants are represented by an attorney when 
filing a claim. A major obstacle to securing legal counsel is that it 
can take up to ten years for a claim to be resolved, and under the 
current system, a claimant's counsel receives no payment and must make 
numerous outlays during that time. Reforms must be made to remedy this 
resource imbalance between claimants and operators so that claimants 
with meritorious claims will receive the benefits they deserve.
  To solve this problem, the legislation expands the Secretary's 
current statutory obligation to offer a complete pulmonary evaluation 
to a coal miner in order to substantiate a claim for benefits. It now 
requires that the Secretary supplement the medical evidence in cases 
where a party who opposes the claim provides evidence that could be 
considered contrary to the initial report of the pulmonary examination 
when the case is being considered by either a district director or an 
administrative law judge.
  In addition, this section provides miners with greater access to 
legal representation by creating a system to pay a portion of their 
attorneys' fees earlier in the litigation process. Attorneys who 
prevail at each stage of the litigation would be paid $1,500 per stage, 
not to exceed $4,500 in total. These partial payments will be paid from 
the black lung trust fund, which is administered by the Secretary of 
Labor, but the advance payments must reimbursed to the trust fund by 
the operator if the claimant ultimately prevails through all stages of 
the litigation.
  Second, the legislation addresses circumstances in which medical 
information is withheld from miners. Full disclosure of relevant 
medical information between miners and coal companies (or their 
insurers) is essential for fair adjudication of claims under the Black 
Lung Benefits Act, regardless of whether the parties intend to submit 
such information into evidence. Records of adjudications reveal that 
some mine operators' legal representatives have withheld relevant 
evidence from claimants, administrative law judges, and, in some cases, 
even their own medical experts. In several cases, the disclosure of 
such evidence would have substantiated a miner's claim for benefits. 
Withholding medical information can endanger miners by depriving them 
of important information about their own health and the potential need 
to seek medical treatment or cease employment where there is risk from 
continued exposure to coal dust.
  To solve this problem, the legislation requires that claimants and 
operators must share all information about medical tests and 
examinations, as well as interpretations of pathology and x-rays that 
are developed as part of the claims process, regardless of whether such 
information is going to entered into the record or not. The bill 
balances sanctions by applying penalties for false statements to 
operators in addition to sanctions already applied to claimants. It 
also authorizes administrative law judges to levy sanctions for 
noncooperation in the discovery process. Full transparency and 
disclosure is needed for fair adjudication.
  Third, the legislation provides the benefit of the doubt to miners in 
cases where the evidence is evenly balanced. Given the remedial nature 
of the Black Lung Benefits Act, when an adjudicator determines that 
evidence is evenly balanced, it is appropriate for any resulting doubt 
to be resolved in favor of the claimant. The Supreme Court vacated this 
longstanding legal principle--known as the true doubt rule--in 1994. 
This provision had been applied to both the Black Lung Benefits Act and 
the Longshore and Harbor Workers' Compensation Act, and it was vacated 
because it was not expressly mandated in the underlying statutes. This 
principle should be reinstated in the Black Lung Benefits Act because 
it provides fairness.

  This problem is resolved in the legislation by providing that 
claimants will receive the benefit of the doubt when the evidence is in 
equipoise.
  Fourth, the legislation addresses recent cases where biased medical 
evidence was systematically used to defeat meritorious claims. 
Physicians who read lung x-rays as part of pulmonary assessments under 
the Black Lung Benefits Act are required to demonstrate competency in 
classifying chest radiographs by becoming certified as ``B Readers'' by 
NIOSH. However, an investigation by the Center for Public Integrity, or 
CPI, and ABC News uncovered that there are NIOSH-certified B Readers 
who were under retainer by coal operators or their law firms and who 
systematically misclassified chest radiographs so that they could be 
used in opposing claims. The CPI report found that since 2000, Dr. Paul 
Wheeler of Johns Hopkins Medical Center had never once interpreted an 
x-ray as positive for complicated pneumoconiosis in more than 3,400 x-
ray readings. Dr. Wheeler consistently concluded that there was not 
severe black lung present, even as other doctors saw the disease in 
hundreds of cases and other evidence, including biopsies, repeatedly 
proved him wrong. In response to these reports, Johns Hopkins 
immediately began an internal investigation and suspended the black 
lung x-ray reading program. A year later, the investigation is 
reportedly ongoing and the program remains suspended.
  In response, the Department of Labor has issued guidance to its 
claims examiners ``not to credit negative chest x-ray readings for 
pneumoconiosis'' by Dr. Paul Wheeler unless the conclusions of such 
physician ``have been rehabilitated.'' DOL has provided written notice 
to miners whose claims were denied within the one-year window for 
reconsideration--and where Dr. Wheeler's evidence was used during the 
claims proceeding--that informs the miners of their right to seek 
reconsideration. Going forward, claimants need to have an unbiased 
place to turn to get their lung x-rays read.
  To address this problem and help ensure access to credible medical 
evidence that can assist in establishing a claim or rebutting 
questionable medical interpretations, the bill establishes a pilot 
program at NIOSH that will provide impartial x-ray readings. These 
readings will be offered specifically to assess whether a miner has 
advanced stages of black lung disease--known as complicated 
pneumoconiosis or progressive massive fibrosis--which results in 
benefits being awarded on a presumptive basis. NIOSH is required to 
establish panels made up of three physicians who are certified as B 
Readers; the panels would prepare reports that can be used in claims 
proceedings as a service to claimants or operators on a fee-for-service 
basis.
  Fifth, the legislation covers the need for remedies for those whose 
claims were unfairly denied due to tainted evidence. More than a year 
has passed since many miners' survivors were denied benefits in cases 
where Dr. Wheeler, the discredited Johns Hopkins' physician, provided 
the chest radiograph interpretations. Logically, survivors should be 
permitted to file a new claim for benefits if they were denied based on 
bogus medical interpretations. However, under current law a survivor is 
barred from filing a new claim more than one year after a decision to 
deny benefits is final, unless they can show a change in medical 
conditions. Obviously, for a deceased miner, demonstrating a change in 
medical condition is impossible.
  The legislation remedies this injustice by allowing survivors to 
refile their claim outside of the one-year window. In addition, in 
cases where DOL has directed its claims examiners ``not to credit 
negative chest x-ray readings for pneumoconiosis'' provided by any 
physician whose interpretations have been discredited, the legislation 
also directs claims examiners and administrative law judges to exclude 
consideration of those discredited medical interpretations.
  Sixth, the legislation addresses cost of living increases that have 
not been provided to miners and their families as intended. Contrary to 
the intent of Congress, benefits payments under the Black Lung Benefits 
Act have not been automatically increasing with the rising cost of 
living Benefit payments are tied to the monthly pay rate for federal 
employees in grade GS-2, step 1. In several of the prior fiscal years, 
there was a pay freeze for federal employees, which had the effect of 
eliminating cost-of-living adjustments for miners, surviving spouses, 
and dependents under the Black Lung Benefits Program during such years.
  To resolve this issue, the legislation restores the cost-of-living 
adjustments for black lung beneficiaries that were blocked or reduced 
as a result of federal employee pay freezes in 2011, 2012, 2013, and 
2014.
  Seventh, the legislation addresses the need for training to help 
improve claims administration. A competent assessment of medical 
information and testimony, which often involves multiple physicians 
disputing a diagnosis, is necessary to determine whether to award 
benefits under the Black Lung Benefits Act. To ensure that a 
determination regarding a claim for benefits under the act is fair and 
accurate, regular training is needed by claims examiners and 
administrative law judges regarding: developments in pulmonary medicine 
relating to black lung disease; medical evidence necessary to sustain 
claims for such benefits; and the proper weight to be given to 
conflicting evidence.
  To address this need and improve claims administration, the 
legislation requires those administering this program to have annual 
training on the latest medical developments.
  Eighth, there is a need to eliminate excessive delays in the 
adjudication of claims. There are currently egregious delays in 
adjudicating claims before an administrative law judge at the 
Department of Labor due to budget and staffing cuts. Between 2004 and 
2014 there was a large reduction in the number of administrative law 
judges, coupled with a large increase in the number of cases filed 
under

[[Page E1662]]

the Black Lung Benefits Act. Compounding this problem were furloughs 
resulting from sequestration and the 16-day shutdown of the federal 
government during calendar year 2013. Due to the imbalance between 
resources and caseloads, it currently takes 429 days to assign a case 
to an administrative law judge, and claims remain unresolved for an 
average of 42 months prior to a decision, according to Department of 
Labor data. These delays directly and severely impact the lives of 
workers throughout the United States, placing an undue financial and 
emotional burden on the affected individuals and their families.
  To resolve this issue, the legislation directs the Department of 
Labor to develop a plan to eliminate the backlog and eliminate delays.
  Ninth, continued studies of the Mine Safety and Health 
Administration's recently adopted rules are needed to prevent future 
cases of black lung disease. Black lung disease has been the underlying 
or contributing cause of death of more than 76,000 miners since 1968. 
After decades of decline, the incidence of coal miners with black lung 
disease is on the rise. According to NIOSH, miners are developing 
advanced cases of the disease at younger ages. In response, the Mine 
Safety and Health Administration in the Department of Labor has taken 
important steps to combat the disease, including the promulgation of a 
rule in 2014 that reduces the allowed concentration of coal dust and 
eliminates weaknesses in the current dust sampling system.
  To ensure that these reforms are sufficient to stem the scourge of 
black lung disease, this legislation requires continuing retrospective 
studies.
  In total, the Black Lung Benefits Improvement Act of 2014 will 
restore a measure of justice to thousands of coal miners who have long 
toiled to provide the energy that powers our nation's homes, farms, and 
factories.

                          ____________________