Fighting for Justice in the Coalfields

Senator Jay Rockefeller Calls for Improvements to Black Lung Claims Process for Miners

WASHINGTON, D.C. – Senator Jay Rockefeller today issued the following remarks as prepared for the Health, Education, Labor, and Pensions (HELP) Committee’s Subcommittee on Employment and Workplace Safety’s hearing titled, “Coal Miners’ Struggle for Justices: How Unethical Legal and Medical Practices Stack the Deck Against Black Lung Claimants.” The hearing is being chaired by Senator Bob Casey (D-PA), who is a sponsor of Rockefeller’s Black Lung Health Improvements Act, which would, among other things, expand miners’ access to medical evidence in the Black Lung benefits claims process; create a program to help miners secure legal representation when applying for benefits; and, make grant funding available for research into the disease.

Below is Senator Rockefeller’s statement for the record.

Statement of Senator John D. Rockefeller, IV

U.S. Senate Health, Education, Labor, and Pensions Committee, Subcommittee on Employment and Workplace Safety

“Coal Miners’ Struggle for Justice: How Unethical Legal and Medical Practices

Stack the Deck against Black Lung Claimants”

July 22, 2014

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 terrible this 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 spent 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 one day they’ll 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 the first 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 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, also 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 (GAO) 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.

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.

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