Contact our black lung claims attorney, Hugh Stephens, for help appealing your black lung claim if you believe it was wrongfully denied. If your claim was initially denied, a black lung attorney can help you gather the necessary employment and medical evidence to win your case. Many black lung claims are not accepted the first time. However, as the miner’s condition worsens, it becomes obvious that he or she is totally disabled from his or her lung illness. This is often the case where the court issues a decision and order denying benefits after concluding that there was sufficient evidence to establish the existence of pneumoconiosis but insufficient evidence that the pneumoconiosis was totally disabling. If your appeal is successful, the liable company for which you worked the last two years of your coal mining career will most likely be ordered to pay benefits retroactive to the date of diagnosis. Also, even after the ALJ awards benefits, the liable coal mine operator will most likely contest the decision. It is, therefore, best to work with an attorney to ensure that the decision awarding benefits is upheld.
Black lung claims processing
Once you apply for black lung benefits and provide your coal mining employment history, DOL schedules a free, complete pulmonary evaluation to verify that you are totally disabled from the illness. The DOL medical examination may include: physical exam, chest x-ray, spirometry (breathing test), pre- and post-bronchodilator spirometry, arterial blood gas test (at rest and sometimes with exercise), and EKG. The examining physician then submits his or her findings, diagnosis, and opinion to the claim examiner. The medical report helps determine if the miner suffers from pneumoconiosis, if the illness arose from coal mining employment, if the miner is totally disabled and cannot return to his or her last coal mine work or any comparable employment due to respiratory impairment, and if the total disability is due to the Black Lung disease.
The claim examiner may also allow the parties about 60 days to submit additional evidence and another 30 days for both parties to respond to each other’s evidence. If the evidence provided is sufficient to make a ruling, the claims examiner reviews the claim and evidence and issues a Proposed Decision and Order (PDO). This is a final decision on whether to award or deny benefits and which coal mine operator is liable for the payment. If dissatisfied with the decision, either party may appeal for a formal hearing before the Administrative Law Judge (ALJ). If the claimant is denied benefits after the appeal, he or she can withdraw the claim and file again in the future. When a claimant is awarded benefits, the mining company determined to be the miner’s responsible employer pays the monthly benefits and medical cover for the illness, either directly or through insurance. Payments may be made by the Black Lung Disability Trust Fund (financed by coal mine companies through an excise tax) if no coal mine operator can be held liable.
This free medical examination helps ensure that claimants can properly develop evidence for their claim. DOL has authorized certain doctors and medical facilities to perform these pulmonary evaluations nationwide. A claim may be denied if a miner fails to undergo the required medical examination without good cause. A miner may also submit an additional medical report (at the miner’s expense) from a personal doctor or another physician.
If you have been having respiratory problems, you can apply for Black Lung Benefits and undergo the free DOL exam to determine whether you have pneumoconiosis. Miners are also encouraged to attend the free miners’ clinics for regular screening. Miners with respiratory illnesses should also take advantage of other resources that help monitor their health and provide access to black lung benefits, such as the Black Lung Clinics program, which offers specialized diagnostic and treatment services, outreach, counseling, and educational programs to help patients and their families manage the disease.
Why should you appeal your black lung claim?
Coal miners are encouraged to appeal denied claims. Black lung disease is progressive; thus, the financial and medical benefits awarded could help manage and slow the illness. Denials are very common in black lung claims, with approximately 50% to 60% of miners’ cases being awarded on formal appeal before the Administrative Law Judge (ALJ) after initial denial. The program is designed to offer several levels of appeal for a denied claim. However, only a low percentage of denied claims are appealed. Most of the black lung claims filed are withdrawn, abandoned, awarded, or denied without appeal. If your claim was denied the first time and your illness has worsened, the chances of winning an appeal are higher.
You do not incur any costs for attorney fees if your claim is denied. If your claim is accepted, the program covers attorney fees. If your claim is approved for black lung benefits through a proposed decision and order from a district director or an administrative law judge, the district director may approve attorneys’ fees for work done before such director in an amount not exceeding $1,500, and an administrative law judge may approve attorneys’ fees for work done before such judge in an amount not exceeding $3,000.
Also, once benefits are awarded under the program, a claimant can claim compensation for medical examination expenses. For benefits awarded in a proposed decision and order by a district director or an administrative law judge, the district director and the administrative law judge may each approve an award to the claimant’s attorney for reasonable and unreimbursed medical expenses incurred in establishing the claimant’s case, in an amount not to exceed $1,500.
If you hire a good attorney, the appeal of your black lung claim is likely to succeed. Many claims are initially rejected due to incomplete medical files, strict administrative timelines, or conflicting interpretations of medical reports by employer-hired doctors. A good attorney can represent and guide you through the entire process until you are awarded benefits. They also provide advice on critical matters. For instance, federal black lung claims have a strict three-year statute of limitations for living miners, but no statute of limitations for survivors. If a miner’s claim was denied due to the statute of limitations, the surviving miners might still be eligible for compensation. Also, if a claim was denied due to the strict legal requirement of total disability during the first evaluation, a subsequent appeal or modification request allows new medical evidence to prove worsening lung function.
What if your black lung claim is denied?
If a claim is denied by the district director, a claimant may request reconsideration by submitting new evidence or a revision within 1 year of the initial denial. A claimant may request a formal hearing, in which the claim is forwarded to an Administrative Law Judge (ALJ), who reviews medical evidence, hears testimony, and weighs the evidence independently of the initial denial. If a claim is denied by the ALJ, the claimant may appeal to the Benefits Review Board (BRB) on the grounds of legal or procedural errors. If the Benefits Review Board (BRB) upholds the denial, the claimant may file a petition with a US Court of Appeals.
Even if a claim is denied, a claimant may file a subsequent claim in the future. A denial legally “wipes the slate clean”; if the claimant submits a new medical determination of total disability down the road, it resets the three-year period dictated by the statute of limitations. The three-year clock does not start when a miner is first told they have black lung, but starts when a doctor explicitly communicates to the miner that they are totally disabled because of the disease.
A claimant may withdraw a black lung claim before a decision is issued if the claimant lacks sufficient evidence to proceed. In such cases, a black lung attorney can provide valuable advice. Once a claimant withdraws a claim, it is treated as if it were never filed. As a result, there might be consequences related to timing and the statute of limitations. While withdrawing a claim resets the existing black lung record, it does not reset the three-year statute of limitations. Thus, if the claimant received a medical report stating that he or she is totally disabled by black lung, and files a claim but withdraws it, the three-year clock keeps running from the date of that medical report. The claim could be permanently barred if the claimant waits too long to refile, and the three-year period lapses. If a claimant withdraws a claim before a decision is issued and DOL or the ALJ approves the withdrawal, the rules governing subsequent claims do not apply. Also, the DOL does not cover the cost of the medical evaluation, and the claimant must pay.
Reasons why your black lung claim may be denied
A claim may be denied if the claimant is unable to prove three specific elements: that exposure to coal dust caused a lung disease, that they are totally disabled by a respiratory illness, and that the coal dust caused that disability.
Failure to prove that a miner suffers from pneumoconiosis: If a CT scan or tissue biopsy does not show definitive evidence of coal workers’ pneumoconiosis, the claim will be denied, even if the claimant has severe breathing problems. The claimant and the coal operator often present conflicting interpretations of medical reports, a common point of contention. Coal companies routinely hire their own B-readers to argue that your X-rays are clear or show unrelated issues, such as normal aging.
Failure to prove that a claimant is totally disabled: The law uses strict numerical tables based on a miner’s age and height to determine disability. If the miner’s breathing test results are even slightly above the legal cutoff, he or she is not considered “totally disabled.” Also, a claim may be denied if a miner’s arterial blood gas test oxygen levels do not drop low enough during rest or exercise to meet the DOL standards.
Failure to prove causation (the link between the claimed respiratory illness and coal dust exposure): If a claimant does not meet the 15-year coal mining employment presumption, the burden of proof shifts entirely to the miner to establish causation, which is much harder. To dispute the causal link to coal dust exposure, most coal mine operators attribute miners’ respiratory problems to smoking or tobacco use, if the miner has a smoking history. In other cases, the employer may link a claimant’s shortness of breath to other underlying conditions, such as heart disease, obesity, or asthma, rather than to coal mine dust exposure.
Statute of limitations: A claim may also be denied if it is established that the claimant waited more than 3 years to file after a doctor issued the “total disability” diagnosis.
Conclusion
It is almost impossible to win a black lung appeal without the help of an experienced black lung claims attorney. Many black lung claims are denied due to a lack of representation by good attorneys. According to the OWCP’s Division of Coal Mine Workers’ Compensation, 43% of black lung claimants are represented by an attorney, and 34% have no representation. Given the legal complexity of black lung claims and the increased ability of mine operators to hire highly rated attorneys, it becomes increasingly difficult for affected miners to win a black lung claim. As a result, only around 32% of claims are awarded at the first level of litigation, with many claims going through three or more appeals. A successful black lung claim provides access to specialized medical benefits, which are vital for covering the cost of expensive treatments such as oxygen therapy or lung transplants.