The Black Lung Benefits Act provides compensation to coal miners who are totally disabled from pneumoconiosis or black lung disease related to their coal mine employment. To be considered for black lung benefits, you must file a claim with the Department of Labor and provide medical evidence as well as employment information. You will be required to undergo medical examinations, including a physical exam, chest x-ray, pulmonary function study (breathing test), and arterial blood gas study.
The process of filing a black lung claim is complex, and mining companies always fight liability. You need the help of an experienced Black lung attorney to battle the mining company lawyers and win compensation. If your claim is awarded, the responsible mine operator (the last coal mine for which the miner worked for at least one year) or the black lung trust fund is obliged to pay your benefits and attorney fees. Eligible miners receive monthly payments and medical benefits, while survivors get monthly payments.
Five presumptions provided by the Black Lung Benefits Act
The Act contains five presumptions used to determine if a miner is eligible for black lung benefits. Three of these presumptions are “rebuttable,” meaning that eligibility is presumed if there is no contrary evidence. One presumption is “irrebutable,” and eligibility for Black Lung program benefits is established if the statutory requirements of the presumption are met.
- A rebuttable presumption that the pneumoconiosis of a miner who was employed in mining for at least 10 years was caused by his or her employment. In light of the definition of legal pneumoconiosis outlined in the revised regulation at 20 C.F.R. §718.201(a)(2), the Tenth Circuit held that the rebuttable presumption at 20 C.F.R. §718.203 is only applicable to claims of clinical pneumoconiosis and does not extend to claims of legal pneumoconiosis. Andersen v. Director, OWCP, 455 F.3d 1102, 23 BLR 2-332 (10th Cir. 2006).
- An irrebuttable presumption that a miner with any chronic lung disease that meets certain statutory tests or diagnoses is totally disabled due to pneumoconiosis or died due to pneumoconiosis.
- A rebuttable presumption that a miner employed in mining for at least 15 years, and who has a chest x-ray that is interpreted as negative with respect to certain statutory standards, but who has other evidence of a totally disabling respiratory or pulmonary impairment, is totally disabled due to pneumoconiosis or died due to pneumoconiosis. This presumption may only be rebutted by the Secretary of Labor.
- A rebuttable presumption that the death of a miner who worked in mining for at least 10 years and who died of any respiratory disease, was due to pneumoconiosis. This presumption does not apply to claims filed on or after January 1, 1982, the effective date of the Black Lung Benefits Amendments of 1981.
- A presumption that a miner who died on or before March 1, 1978, and who was employed in mining for at least 25 years before June 30, 1971, died due to pneumoconiosis, unless it is established that at the time of the miner’s death, he or she was not at least partially disabled due to pneumoconiosis. This presumption does not apply to claims filed on or after June 29, 1982, which is 180 days after the effective date of the Black Lung Benefits Amendments of 1981. This presumption is also not listed in the law as either rebuttable or irrebuttable.
Eligibility for Black Lung Benefits
Black lung benefits are only available to miners who are totally disabled due to pneumoconiosis arising out of coal mine employment. Survivors of miners who died from pneumoconiosis can also file for benefits. A miner is any individual who works or worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal, including an individual who works or worked in coal mine construction or transportation in or around a coal mine to the extent such individual was exposed to coal dust as a result of such employment. Individuals who may have been otherwise exposed to coal dust are not eligible and cannot claim compensation. These include railroad workers, workers at coal-fired power plants, those living near coal mines or power plants, and family members exposed to coal dust from cleaning the miners’ soiled clothing.
The Act defines pneumoconiosis as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” The Secretary of Labor is to determine if a miner is totally disabled due to pneumoconiosis or died due to pneumoconiosis.
Clinical and Legal Pneumoconiosis
According to the Act, pneumoconiosis includes medical or “clinical” pneumoconiosis and statutory or “legal” pneumoconiosis.
- “Clinical pneumoconiosis” refers to diseases recognized by the medical community as pneumoconiosis. They are conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment. This definition includes, but is not limited to, coal workers’ pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary fibrosis, silicosis, or silicotuberculosis arising out of coal mine employment.
- Legal pneumoconiosis is any chronic lung disease or impairment and its sequelae arising out of coal mine employment, including but not limited to any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment.
Based on these definitions, DOL has established that benefits are available to miners with Coal Workers Pneumoconiosis and other respiratory diseases arising from coal mine employment. For example, chronic obstructive pulmonary disease (COPD); which is also linked to other factors like cigarette smoking.
Black Lung Benefits Act claim process
When a District Office receives a claim for benefits, the claims examiner assigned to the case obtains a complete history of the miner’s employment from the claimant and other relevant sources.
If the claim was filed by a miner, the district director will authorize a complete pulmonary evaluation. The district director provides a list of authorized physicians and medical facilities from which a miner chooses a physician or provider to conduct the evaluation. The tests are covered by the Black Lung Disability Trust Fund and the Department of Labor. A claimant can also submit his or her own medical evidence. The claims examiner may also obtain any other medical evidence necessary to evaluate the claim.
Once a claim is determined and the miner is found to be eligible for benefits, the district director issues a proposed decision directing either the Trust Fund or the responsible mine operator to pay the benefits. The trust fund pays benefits when there is no liable coal mine operator.
If the evidence does not support an award and there is no operator responsible for the payment of benefits, the District Director Schedules for the Submission of Additional Evidence. During the Submission of Additional Evidence, the District Director exercises the same rights as a responsible operator. If it is determined that an operator may be liable for the payment of benefits, the District Director issues the mining company with a Notice of Claim.
Notice of Claim
If there is one or more potentially liable operators based on the miner’s employment history, the district director sends a Notice of Claim to those operators and their insurers. The Notice informs the operators and insurers that they are parties to the claim. The notice is sent alongside the claimant’s application and all the available evidence on the miner’s employment history. An operator must send its response to the notice of claim to the claimant and the District Director within 30 days. If the operator fails to respond within this period, it loses the opportunity to contest liability, except if it asserts that another operator was liable. In its response, the operator indicates whether it accepts or denies the liability, stating reasons.
An operator can base their response on the following reasons:
- It had or had no operations after June 30, 1973
- It employed or didn’t employ the miner for a cumulative period of one year
- The miner was or wasn’t exposed to coal mine dust while working for the operator
- It employed the miner at least one day after December 31, 1969
- It is incapable of paying the benefits
An operator is allowed 90 days to present evidence to the district director supporting its position regarding liability from the time it receives the notice of claim. Evidence that has not been submitted to the district director cannot be admitted in any proceedings, except for certain circumstances. The evidence should be based on the five reasons listed above. These deadlines may be extended if a request is filed before the deadline expires.
Schedule for the Submission of Additional Evidence
The district director issues a “Schedule for the Submission of Additional Evidence after the development of medical evidence and the potentially liable operators have submitted their responses and evidence regarding liability. The Schedule, together with a copy of the evidence developed, is to be provided to the claimant and all potentially liable operators.
The Schedule contains:
- A summary of the results of the initial complete pulmonary evaluation, or a summary of the medical evidence developed for survivors’ claims
- A preliminary analysis of the medical evidence.
- The district director’s designation of the “responsible operator” liable for the payment of benefits; (selected from those earlier given notice of the claim as potentially liable operators)
- A notice to the claimant and the designated responsible operator that they have a right to submit evidence on the claimant’s entitlement to benefits
The responsible operator must respond to the schedule within 30 days. If the operator does not respond within this period, it will be deemed to have accepted liability should benefits be awarded. It also waives its right to challenge its liability in any further proceedings. The claimant and the responsible operator are allowed 60 days to submit additional evidence, and another 30 days to respond to the evidence submitted by each party. Either party can request an extension of these deadlines.
Development of Evidence by the Claimant and the Responsible Operator
During the periods scheduled for the submission of additional evidence, the designated responsible operator may submit evidence demonstrating that it is not the operator that most recently employed the miner. Other parties are also allowed to submit their evidence regarding the designated responsible operator’s liability. There is no limitation on the amount of evidence a party may submit. All evidence submitted must be mailed to all parties. Any evidence that does not comply with the schedule for the submission of additional evidence is not admitted in any proceeding with respect to the claim.
Documentary medical evidence
Documentary medical evidence does not have to follow the schedule. A party may submit medical evidence to the district director or the Administrative Law Judge (ALJ) up to 20 days before the hearing or even thereafter if good cause is shown.
Submission of medical evidence is limited as follows:
- The amount of documentary medical evidence a party may submit is limited to: two chest x-ray interpretations, the results of two pulmonary function tests, two arterial blood gas studies, and two medical reports as its affirmative case, as well as one autopsy report and one report of each biopsy.
- In addition, each party is allowed to submit one piece of evidence in rebuttal of each piece of evidence submitted by the opposing party.
- Where rebuttal evidence has been submitted, the party that originally submitted the evidence subject to rebuttal may submit one additional statement to rehabilitate its evidence.
- Documentary medical evidence exceeding these limits will not be admitted without a show of good cause, except for records of a miner’s hospitalization or medical treatment for a respiratory or pulmonary or related disease.
- Each party must serve a copy of any documentary medical evidence it submits on all other parties. If the claimant is unrepresented, the district director will mail copies of the claimant’s evidence to the other parties.
The district director reviews all evidence submitted at the end of the submission of additional evidence and takes any other action that he or she considers appropriate. He or she may notify additional operators of their potential liability, identify another potentially liable operator as the responsible operator, and issue a new schedule for the submission of additional evidence, or issue a proposed Decision and Order. If a different operator is designated as the responsible operator, all the development of medical evidence may be suspended until the operator issue is resolved.
Proposed Decision and Order
A proposed Decision and Order is issued by the district director awarding or denying benefits after the evidentiary development of the claim is completed and all contested issues are resolved based on evidence. It states the final designation of the responsible operator liable for the payment of benefits, if any, and advises the parties of their right to request a formal hearing before the Department of Labor’s Office of Administrative Law Judges. A party may request a hearing before the district director concludes his adjudication of the claim.
After the proposed decision and order is issued, a party may request (in writing) a revision of the proposed Decision and Order or a hearing with the Administrative Law Judges within 30days. The request must be served to all parties, including the district director. If a party requests a hearing, the district director refers the claim to the Office of Administrative Law Judges. If no party responds to a proposed Decision and Order within the 30day period, it becomes final.
ALJ Hearing and Review
The Office of Administrative Law Judges may hold an oral hearing, receive testimony and evidence, and render a written decision addressing the relevant issues in dispute. If the ALJ awards benefits, the responsible coal mine operator must begin paying monthly benefits to the claimant, and pay any retroactive benefits to which the claimant is entitled. A party dissatisfied with the decision may request the ALJ to reconsider it or appeal to the Department of Labor’s Benefits Review Board within 30 days.
The Board reviews the ALJ’s decision to determine whether it is supported by substantial evidence and in accordance with law, and issues a written decision disposing of the appeal. The Board’s decision is appealable to the court of appeals within 60 days, and finally, the court of appeals decision can be appealed to the Supreme Court. Once the decision becomes final, a party can only file a request for modification within one year.
A claimant can only file a subsequent claim after at least one year after a final denial was issued if the claimant can demonstrate that one of the applicable conditions of entitlement has changed since the date on which the order denying the prior claim became final.
Rights of miners diagnosed with CWP
Under the Mine Health and Safety Act (MSHA), miners who have x-ray or other medical evidence of Pneumoconiosis have a right of transfer to a less dusty area of the mine without any reduction in pay. The miner may elect to work in an area of the mine where the average concentration of dust in the mine atmosphere is continuously maintained at or below 1.0 milligrams per cubic meter of air. If transferred, a miner has the right to retain his or her regular rate of pay and receive wage increases. Miners eligible for transfer rights are notified in writing by the Secretary of Health and Human Services.
After notification, the miner may exercise or re-exercise the option to work in a low-dust area of the mine under 30 CFR 90 by signing and dating the Exercise of Option Form and mailing the form to:
U.S. Department of Labor
Mine Safety and Health Administration
Coal Mine Safety and Health
Chief, Division of Health
1100 Wilson Blvd., Room 2416
Arlington, VA 22209-3939
If a miner is found to be eligible for transfer under 30 CFR 90, the mine operator must provide him or her with a copy of the MSHA-approved respirable dust plan. A miner with diagnosed with pneumoconiosis also has rights against discrimination. The miner cannot be fired or discriminated against if he or she is partly disabled from black lung and keeps working. If a miner is fired or discriminated against because of his or her condition, he/she or the representative may apply for a review of the miner’s situation to MSHA or the Department of Labor’s Employment Standards Administration within 60 days. A copy of the application should be sent to the person alleged to have committed the act of discrimination.
Final Thoughts
Even though black lung disease is not curable, medication can help manage the condition. In addition to the monthly payments, the Black Lung Act benefits provide medical benefits that can help with your treatment. Medical benefits provided to sick miners include treatment costs and, with specific approval, prescribed durable medical equipment, outpatient pulmonary rehabilitation therapy, and home nursing visits. Contact our black lung attorney, Hugh Stephens, on his cell at (716) 208-3525 for case evaluation and assistance filing a black lung claim. You may also be eligible for black lung survivor benefits if your loved one died of coal workers’ pneumoconiosis after working as a coal miner.