Transcripts For CSPAN2 Black Lung Medical Claims 20140828

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 tends to i should say 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 death t deaths of over 75,000 minders from 1968 to 2007. That averages to over 1,900 miner death cans per year over deaths per year over a 39year period. Thats an extraordinary number. Im a not sure how widely reported that number is. 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 most severe, fastprogressing type of black lung disease which has increasingly affected younger miners. Last october the center for Public Integrity and abc news released find beings from a yearlong investigation examining how coal industry doctors and lawyer ares help lawyers help defeat 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 seemingly, 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, unquote with, into the record. Following in the report as well as inquiries from my office as well as oh members of congress other members of congress, the department of labor has taken steps to address the issue identified issues, i should say, literal identify 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 back lung claimants whose cases involved medical evidence from dr. Wheeler and whose benefits were subsequently denied, explaining the process for reopening their cases. Im a pleased to work with the department of labor in its efforts to begin leveling the Playing Field for black lung claimants, but theres still more that needs to be done, particularly in relation to the growing backlog of cases at the Departments Office of Administrative Law judges. Im 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 administrative, to an Administrative Law judge. And an additional 90120 days after after assignment before their cases are heard in court. Thats over 520 days for claimants. 520 days. Many claimants too disabled to work, just starting to make the case that they deserve benefits. One of my constituents from glen lyon, pennsylvania, not far from my hometown of cranston where we have a coal mining tradition and history, after finding out about the hearing contacted my office to describe her fiveplusyear struggle as a widow fighting for black lung Survivor Benefits following her husbands death in 2008. And im entering into the record a letter detailing her long and tortured pursuit of justice. 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 nations hard working miners and their families deserve much, much better than that. I called this hearing today so we can do the following three things. Number one, highlighting the struggling, the struggles, i should say, 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 profession process. Number two, were 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, 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 they deserve and that they desperately need. Im 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 United States senate. We will miss their leadership in addressing the important issues facing hard working miners when both of these senators retire at the end of this year. But they respect finished yet. They arent finished yet. Theyre still working on these issues, and im currently working with senators rockefeller, harkin, manchin, as well as representative George Miller to update senate rockefellers black lung Health Improvements act of 2013. Were exploring ways to highlight the abc news investigation, and well uncorporate any Additional Information incorporate any Additional Information or ideas brought forward in this hearing. So i look forward to the testimony, and with that, ill turn it over to the senator isakson for his opening remarks. 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 its absolutely our responsibility to see to it that the information is accurate and the program has great integrity. Understanding that we have three votes at 10 45 and understanding the stars of our show are our witnesses rather than me, ill ask unanimous concept that my entire statement be entered into the record and turn it over to the chairman to introduce our guests. Were joined by senator harkin, and he missed only by seconds my commendation of his service in the senate, especially as it relates to minors. So were grateful that hes here with us. And first of all, ill introduce our first panel, and then well get right to the testimony. And i would urge the, more than urge the witnesses to keep, because of what senator isakson referred to, our votes, keep your statements to five minutes and, of course, your full statements will be entered into the record. First, chris lew was sworn in chris lu was sworn in as the deputy secretary of the United States department of labor in april of this year where he serves a 17,000employee 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 thensenator obama. Prior to working in the senate and the white house, mr. Lu worked for eight years with representative henry waxman as a 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 the 4th, 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 for the National Institute of 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 the director, the acronym which well hear a lot about today, dr. Howard serves as the chief of the division of Occupational Safety and health in the California Department of industrial relations. Dr. Mouther is Board Certified howard is Board Certified and has written numerous articles on Occupational Health law and policy. Doctor, thank you for being with us today. So let me start with mr. Lu. Thank you for your presence here and look forward to your testimony. Thank you, chairman casey, Ranking Member isakson, senator harkin. Thank you for inviting me and solicitor Patricia Smith to testify about the department of labors 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 insuring fairness for americas coal miners and their families. Let me restate that commitment to you today. The Departments 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 departments 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 owcps decision may request a hearing before the Departments 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 employers, attorneys his employers 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 here. Those 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 xrays 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 niche that will consider initiative that will consider whether all parties must disclose medical evidence related to a claim. So much a requirement will help insure 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. Wheelers xray readings. In the absence b of evidence rehabilitating his credibility. Owcp has searched its records to identify denied claims that contained xray 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. Finish as the subcommittee has also recognized, theres a backlog of black lung claims awaiting hearing and decision by the office of Administrative Law judges. To begin to address the situation, the president s fy2015 budget for the aljs proposes a programmatic increase of 2. 72 million. In total, oaljs budget reflects an 11. 5 increase over the fy2014 budget and is the largest increase the department has sought in ten years. In fy2015 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 believer will increase the productivity we believe will increase the productivity of aljs and speed up the black lung cases. Nevertheless, the departments outreach efforts to miners whose claims included dr. Wheelers 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 . In conclusion, let me assure you that the department of labor is committed to improving the effectiveness of these programs, and is we look forward to working with the subcommittee on this important effort. Thank you. Thank you, deputy secretary lu, and i want to explain that because you and solicitor smith are in the same d. , youve submitted d. , youve submitted joint testimony. So theres joint written testimony, but only one oral testimony. Of course, solicitor smith will be available for questions. So next well move to dr. Howard. Good morning, mr. Chairman, Ranking Memberrize act soften and senate harkin. I would hike to provide an update on nioshs effort toss provide high Quality Health surveillance to coal miners and to assist in insuring active assessment of chest radiographs for black lung disease. Surveillance for a progressive lung disease even after cessation of coal dust exposure was first required by the Coal Mine Health and safety act of 969. It was quickly recognized there was substantial disagreement between physicians in determining whether chest radiographs showed evidence of the disease can. In 1978 niosh promulgated steps to insure accurate readings for the niosh coworkers Health Surveillance program. The regulations required physicians to meet certain requirements before participating in the niosh Surveillance Program and a rigorous [inaudible] this progress is based on multiple independent evaluations that are summarized in a way that everyone ices main emphasizes mainstream views. The niosh b reader Certification Program trains and tests physicians for their ability to use a system from the International Labor organization or ilo for standardized description or classification of changes on chest radiographs that are associated with the disease can. Physicians can become a breadergy passing an examination. Besides their role in the niosh program, b readers provide classifications in the department of labors black lung Compensation Program. Niosh was also concerned by the reporting suggesting that a b reader involved in the department of labors black lung Compensation Program systematically mischatfied chest radiographs first, we immediately offered Johns Hopkins our assistance to help them. Second, niosh noted that the b reader in question reportedly asserted that clearly visible chest radiographic changes need not be reclassified. This is not consistent with the purpose of the ilo classification system. In response, n be iosh retained approval to revise the form which many b readers use in nonniosh settings. The new form clearly requires that all findings described by the ilo system, that are seen on the chest radiograph must be class fried regardless of the physicians class classified. Third, niosh has entered into a partnership with the Workers Companies sayings 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 cases are doing so accurately. Fourth, when it is provided with a written complaint of a b reader that performings services, 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 and nonniosh settings not available to niosh. Since 1978, we are aware of only two b readers who have lost their license to practice medicine. Niosh offers Technical Assistance to any state medical licensing board that makes the decision to investigate chest radiograph classifications performed by the b reader. More information about the Program Including a list of best practices is provided in my written testimony. Thank you, mr. Chairman, and im happy to answer any questions. Thank you, doctor. Well start a round of questions. Deputy secretary lu, i wanted to ask you about the question of resources. Weve had some discussion about this. Ive noticed that over time, especially the last several months, really within the last year even when you consider the additional responsibilities that you have to deal with this problem as well as the resources youre going to need because of the new initiatives that youve embarked upon, i believe that youre going to need substantially more resources for the work that youre doing. We know that based upon data from the department that we estimate approximately 10 million in funding above the president s fiscal year 15 budget request for the and im talking now about the office of Administrative Law judges would be necessary to begin reducing and ultimately trying to eliminate the backlog. So id ask you in particular will you continue to work with us to insure, not just to try, but to insure that the department has the resources to adequately address the backlog of cases . Mr. Chairman, id like to, first of all, commend you on your longstanding leadership on this issue. As i indicated in my opening statement, weve asked for an 11. 5 increase in fy2015 for the aljs. With but as youve 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 insure that we have sufficient resources on this important issue. Weve got some work to do on that, and im grateful for your willingness to work with us on that. Solicitor smith, i wanted to ask you about the claim that, the claim thats often made that miners are allowed to file as many claims as they like no matter how many times the claims are denied, that kind of allegation thats made. Can you describe how the process for resubmitting a previouslydenied claim differs based on whether or not it falls within the oneyear time limit . 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 if theres a mistake or his condition has changed. Id 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 one year after the last payment of benefits. Both of those reopenings 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 one year a miner may file a claim for new benefits. It is a new claim. Its a new time period. Thats because, as dr. Howard has pointed out, black lung disease can be progressive and latent even after theres 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 if they cant 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 its 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. And, again, this is because the black lung can be progressive and latent, and so if there are changes in conditions and now the miner is eligible when they may not have been eligible before, we dont want to to bar them forever when they have become eligible. So that would be youre talking about the situations where you have a new claim. Right. Thats a new claim. Its 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 more over a year for over a year, 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. Before we wrap up this i just want to, why dont we put on the record that your best description or definition of race judicata. Sorry. It mean that is the claim is final and you cannot reopen it. Thanks very much. Senator isakson. Thank you, mr. Chairman. I have one question for dr. Howard. Since the cpi report was published, niosh has required all findings required by the ilo classification system that are seen on the chest radiograph be classified, and you mentioned in this your opening remarks, regardless of the underlying cause. Under the new system, how would a physician be able to annotate their own medical conclusion regarding that this is classified . Thank you, senator. They can certainly do that by providing their open medical interpretation of the findings that they see. So there are two parts to the process of looking at a chest xray. One is to assess what they see visibly in terms of the profusion score, etc. , 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. So if its classified, what does that classification mean . What restriction does that imply . The restriction on classification, the actual reading of whats on the xray is within the bounds of the ilo classification system. The interpretation of what is seen on the xray is a medical activity, a diagnostic activity. So the physician can draw his or her own conclusions about what they see. The but the accuracy of what they see is what we certify as a b reader. So, and i dont 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 . No. The ilo classification system sets out the programmer ifs parameters for looking at the visible findings on the xray. And has a number of different categories that the physician checks or not checks. Thats 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 theyve seen. But the two are different. So theyre not, theyre not professionally restricted from no. We do not, we do not control the practice of medicine, per se. But we do certify people on the accuracy of with which they read an clay according to the ilo an xray according to the ilo system. Thank you, dr. Howard. Thats my only question. Thanks, senate isakson. Senator harkin. Thank you very much, mr. Chairman. And, first, let me commend you for your great leadership on this very important issue. Thank senator isakson for being a good partner and helping to try to change some of the ways we to business with regard to coal miners. You know, we often talk about how coal produces some of the cheapest electricity and energy in the United States. Well, thats true. For a number of reasons, one because the forces of nature created the coal over hundreds of millions of years, but i think its also true because those who mine the coal have not been adequately compensated in the last century or so that weve been mining coal in this country. 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. Now, again, 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 theyre minding. But theres still a lot of bad actors out there, too, who have not done that. Now, the department has now issued a new rule, i think youre in rulemaking now for keeping that level of dust down. Is that correct, mr. Lu . That is correct. And when will we see that rule . [inaudible conversations] that rule is effective august 1st, is effective so it is effective august 1st. So ill be checking to see how that works. Again, coal miners Coal Companies claim that costs them a lot of money. Of course it does. But whats the cost of a miner that lives out the remainder of his life or 30 or 40 years unable to breathe, hooked up to an ox to jena chien oxygen machine, unable to do some of the most rudimentary things of daily life. As the chairman knows, i come from this from a personal standpoint. My father mined coal for over 23 years in iowa. A lot of people dont know that iowa had a lot of coal. We were once the second largest coalproducing state in the nation. John l. Lewis, the great coal mine leader, came from iowa, not from West Virginia or the chairmans state, from pennsylvania. But in those days they had nothing. I mean, they worked underground, and they just, they had nothing. And so they all had what they they didnt call it miners lung they didnt call it black lung. I never heard that until we came here, but we always called it miners cough, miners lung. Thats 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 50s, 60s, 70s. Ages. So im glad that we got the rule out. Secondly, 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 were leveling the Playing Field. A lot of times these minders dont have a lot miners dont have a lot of money, they dont have adequate come. They file their claim, it goes to dr. Whiler who i hope is not dr. Wheeler who i hope is not a part of our program any longer, but they dont have any recourse to adequate come. Now counsel. Now, 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, maybe from the counsels office, Solicitors Office to respond. Senator, theres a few things that weve been doing lately. We have really been thinking about this, what we can do for miners that do not have counsel, which is why in our Pilot Program where we have a miner who has filed for claims, hes unrepresented, we have an initial determination that he is eligible for benefits. If in order to strengthen his evidence because he does not have counsel, we are if there is evidence to the contrary, we are sending that evidence back to his original doctor to reassess it to come up with uptodate medical evidence, something that unrepresented miners would not do on their own. Thats one thing were doing 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 Solicitors 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, send it back to the original doctor. Sometimes the original doctors evidence is two or three years old, so its considered outdated. Send it back and get more evidence. How many cases, whats the backlog . I dont want even know the number. Do you know the number, . Senator, i can we can get you the number. What i can tell you is that the number of cases that has been filed has increased from about 6400 in fy2013. We believe it will be about 7400 in fy14. So the number of complaints filed has increased by about a thousand, and we can get you more detailed information on what the backlog numbers are. Come told us theres counsel told us theres about 14,000, does that sound right . Thats about right. Well, i hope again, trust were going to be providing the kind of support, Legal Support and other side so that we just dont wait until they all die off. They deserve compensation, and they deserve it now. Thank you. Mr. Chairman, thank you very much. I know were running out of time for this panel, but i wanted to ask dr. Howard a question about the question of 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 incidents, i should say, of dustinduced lung disease. It is 6. 4 . So were going to complete our most recent five year report soon, and we can provide you with those figures. Suffice it to say the prevalence rates have risen as you said. They have spike. Predominately a month underground coal miners in the central Appalachian Region of the United States and in smaller minds. Although pneumoconiosis continues to be a nationwide problem. We dont have any data with regard to surface miners and we are awaiting asked miss smith pointed out a new coal dust row which was into effect august 1 and at the time surface coal miners will be covered and well be assessing the prevalence of coworkers at pneumoconiosis in the population also. Also. I want to make sure i got this straight. What years was the prevalence, 3 . That was the lowest period of time and that was 9599. Since that time to a decade of 2000 it has risen your excel our latest numbers are 6. 4 prevalent. So more than double. Exactly. Thank you. I will have more questions for you for the record after their in. I know we have to transition your but before i wrap up, solicitors or solicitor smith, would ask you one part of your test went with the Department States in your prepared testimony quote, survivors whose claims were denied more than one year ago have no avenue for relief, unquote. I want to ask you what that means. Does it mean that survived the claims that were denied using evidence from doctor wheeler cannot be either reopened or modified if they are denied more than one year ago . And doesnt also mean that the survivors are unable under current statutes to ever receive benefits . Unfortunately yes, senator. I will have to go back and give you my plain language of you of it. Ill try to explain that. Basically a survivors claim that is more than, that was denied more than a year ago as i discuss could not be reopened. Then the question is, could they file a new claim . The basis of a miner on a claim that his condition could change. However, the issue in a survivors claim is whether the death of the coalminer was caused by black lung disease. Because of the coalminer was dead and instead, there is a change in the condition of his death. So one of the principles, its final. Theres 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, as dr. Wheeler evidenced, to be basically legislative relieved from the finale and 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 mine is for a new time period but in that situation if he were relieved from the arctic to go back to the state of their original claim. Right now they could not do that when they file a claim. Thank you. So you told us we need statutory change. Exactly. Thank you very much. Im each of us will probably have more questions what were going to transition but i want to thank all three of our witnesses for being here for your testimony and for your public service. We will go to panel number two, and i will begin the introductions while our witnesses are getting their seat. I would just run through so we can continue to move forward. First john kline, john kline is an attorney in paid media, West Virginia, specializes in representation of federal black lung claims. Mr. Kline earned his jd degree from the West Virginia college of law in morgantown West Virginia. Prior to starting private practice, in 2005 he spent many years working on at of coal miners as a volunteer black Lung Association member, benefit counselor and leverkusen the. Mr. Kline grew up grew up in new york and as a father of three children. Mr. Kline, thank you for being you. Dr. John parker, dr. Parker has been practicing at West Virginia University Since 1985. Is published numerous peerreviewed 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 travel the world over teaching and training, doing gratitude occupational lung disease. He is currently professor chief of pulmonary and Critical Care medicine at West Virginia university. Dr. Parker is very to his wife, christine, and has two children, josh and katy. Doctor, thank you for being with us. Robert bailey 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. Graduated after graduate from high school. He retired after 36 and a half years due to the to build taking effects of black lung disease. Mr. Bailey was born in bluefield, West Virginia, and has been married for 41 years, three children and nine grandchildren. Mr. Bailey, thank you for being with us. Our fourth witness on the panel is a prince one Senior Consultant with the new york office of the law firm. Mr. Bristow specializes in evaluation and cost determination of individual large and longterm Workers Compensation claims. Particularly occupational disease. He worked on analysis and compensation for occupational lung disease since the early 70s. Hes also director of the American Society of Workers Compensation professionals, new york Workers Compensation policy institute. Mr. Briscoe, thank you very much. I ask ou ask our witnesses to kt just 25 minutes and well do around the questions after that. Mr. Klein, you can start. Ninety, chairman casey, Ranking Member isaacson, as you know the Coal Mine Health and safety act isnt in to protect the health and safety of working miners and also to provide modest benefits we might have become totally disabled from black lung disease. My coworkers come Compensation Programs it is remedial indicated to provide benefits at the time of need. But in order to qualify a disabled miner our widow must engage in fairly complex adversarial litigation. In addition as revealed by the pillage of prizewinning articles i chris hamby and the center for Public Integrity plus the News Coverage of abc, the adversarial process is not only complex but has been abuse by Coal Companies and their attorneys, or at least some of them. In my written statement i provided five examples about like to focus our remarks today on the case of the gary fox whom i represented me the end of his life. In short mr. Foxx was born in 1950. After high school he served in the army, oriented the army and served in vietnam. He worked as a coalminer for 32 years from 19752006, three years later, he died of complicated black lung at the age of 50. He had what is being recognize now as a very aggressive form of complicated pneumoconiosis but it seems to progress more rapidly. But if we take a closer look, there couldve been a different outcome in my opinion is the purposes of the act had not been subverted. In 1997, West Virginia occupational pneumoconiosis board issued a report to both mr. Foxx and his employer stating that mr. Foxx findings were consistent with progressive massive fibrosis, another term for complicated black lung. However, mr. Foxx treating physicians also were concerned about the possibility of lung cancer. They removed a fivecentimeter mess from his right upper lung, but thankfully was not cancer but the local pathologist did not diagnose like long, even though he said it contained numerous deposits. Mr. Foxx was to working and realizing to get out of the dust and filed a claim for federal black lung benefits. s claim was approved. Elk run it was represent by experienced attorneys from the law firm jackson and kelly hired to expert pathologists who both found that the samples of mr. Foxs lung tissue actually were consistent with complicated black lung. Lawyers and judges for my with black lung litigation know that pathology is the Gold Standard and that helped runs to expert pathology reports met the requirements for benefit from the act. In other words, elk run knew that mr. Foxx qualified but elk runs attorneys not only withheld those two reports but also used the discredited opinion of the local pathologist to convince for reviewing expert home and not just in the Administrative Law judge that mr. Foxx did not have black lung at all. Without black lung benefits mr. Foxx continued working until 2006 when he was too short of breath to continue. And when elk runs the sexual slavery close to the administered law judge who denied his earlier claim, the judge aptly said that elk runs actions quote 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 of ages as soon as the act had intended, his life may have been prolonged. In response to mr. Foxs case and others as mentioned earlier, the department has announced it will consider any regulation requiring disclosure of medical evidence quote to ensure that minors have full access to information about their health and that accurate benefit determinations are made. I would add that any program that is intended to protect the health of miners, it makes no sense to withhold medical information that would adversely affect their health. And the requiring, the disclosure is the only what i think to properly protect the health of miners. Mr. Fox asked me to pursue this issue because he knew it wouldnt benefit him but he dearly hoped 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 as great a great deal of hardship for claimants waiting for benefit. And making it even more difficult for them to get legal representation. Is just an urgent need for more aljs, more clerks and more uptodate technology. Thank you for considering my remarks. Thank you, mr. Cline. Dr. Parker. [inaudible] thank you, mr. Chairman casey, senator isakson and the center harkin for the invitation. Of course, im here today because of the power of the pen, the power of the pen to shine a light on injustice. And we can all be reminded that the coal mine safety and health act challenges us to 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 been hearing, unfortunately black lung disease is not a disease of the past and as a treating physician ive cared for miners who died at home, who died in hospital, who died in intensive care you know, who died in hospice care and took it after Lung Transplantation has failed. I still grieve with their widows and their family members. I understand the concerns have been advanced about the accuracy of the medical work of physicians in matters of compensation for coal miners. More specifically ive been asked to provide testimony on the medical standards that should be used when coal miners chest xrays are classified. Of also been asked to give a range of these that physicians may charge to read such chest xray. Let me provide a very short discussion about that diagnosis of dust related diseases. Workplace lung disease are diagnosed during life with a history of exposure an abnormal chest xray, or lung function testing, and no better medical expedition for the findings of the than the workplace dust exposure. Because of the Important Role of chest xrays and assumptions such a diagnosis, the quality and accuracy of chest xray interpretation is of course central to the process and quite critical. Referred the classification system is that system and niosh has provided education and training and certification position for many years and devoted substantial resources to the niosh be Reader Program. They also have Quality Assurance programs that produce very highly validated and accurate readings and diagnoses and that, in fact, have served as the Gold Standard for research and education around the world. Im 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 would significantly reduce the inaccurate readings. Let me mention again that these diseases are preventable and that weve heard that regulation at two to three milligrams of cubic meter of ambient dust was a place for many years and its now been reduced to 1. 5 milligrams per cubic meter of ambient air. And i would like to clarify my written testimony that he used leaders instead of cubic meters, which is common for physicians to make an error. So how much do these readings caused . In my career ive seen physician reimbursement for the ilo classification of images range from 2 of film the 100 a film. Ive even heard of higher fees but i would depend upon others to document that the. 2 is what niosh page readers in the 1980s and 1990s. The current niosh payment for digital is 12 image. Chest xrays that are interpreted and hospital and clinical setting for clinical purposes are currently reimbursed at about 9 per image. So for clinical purposes, 9 per image. Just, about 60. Let me close a short discussion about the professional integrity of physicians in compensation and litigation. Ive been aware immigrant of apparent schismatic overreading and under reading in compensation matters. In the judge jack case in 2005 there was systematic overreading of radiographs, and in a rico claim of csx versus pierce in 22 of those also overreading. The center for Public Integritys report has outlined substantial under readings. Niosh maintains a webpage which is in full concert with the American Medical Association and American College of radiology, realizing that the impartial objective and unbiased testimony has to be scientifically validated and capable to withstand to review that physicians have to be careful if their medical and legal and social applications from the readings are critical. I have no doubt that of all involved in the if it wishes 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. Doctor, thank you very much for testimony. Mr. Bailey. [inaudible] what its like to have black lung. Thats all i knew after spending so many years in the minds. Really i never did until i got to the fifth chapter of my life. Some days are a lot better than others, but every day is not a good day. Which what i signed up for black lung, i was initially denied stating medical records from Johns Hopkins hospital doctors in a negative way. My doctor rasmussen, he said i had complicated pneumonic doses. The board that he represents, ive done several records on them and they have always reported that i had black lung. So i felt within myself it is a disease was here. So i couldnt settle for the other readings so i proceeded, and they also added there could be other diseases. So thats another burden they lay upon you. And you wonder what to do. So i had a lung biopsy. Three samples, to mostly black, that i had congregated black lung. After that event i was awarded black lung. Its, like to say, youve got order. But still it easier to. You still have the disease. You struggle with the Different Things and the other miners which is unfortunate, it took me almost four years, other miners have been there a lot longer and they havent received anything. A lot of it is through negative reading. So i hope to support them with this, that we do today for those that are still trying to get their benefits, and for those who havent gotten where we are at now. I hope to prevent them from that. Its, its the coverage is, once you get them, you think that your cover. Social security give me disability on the pneumoconiosis and sleep apnea. But even now im in the process of a Lung Transplant proceeding. Might insurance, black lung insurance on not wanting to improve evaluation procedures or a transplant. After being already approved twice through Social Security and the black lung program. So thats another thing that we have to face. Its not just the daily struggle of our disease but the outcome or uncertainty of ourselves and the other miners that would represent. So i hope, and which im still thankful, too, that i am a umwa member, that i feel like i have the comfort zone, someone that is there that will help back, that will stand behind us. And just like everyone is here today, we are here for the same reason, though i look to yall to help us to get at which we need. And those that are not union workers, i feel a more deeper compassion for them also because they dont have places they can go to for help, except maybe black lung claimants. They are limited, where they need more support from them. So i would like to see that Congress Step in and do make some changes to help process these claims that has taken so long for most miners to even receive, where most of them are turned down. Which i know to have this black lung disease, some of it is simple, some of it is complicated. The more complicated, the more help that you need, financially and emotionally. But its not just the miner. Is their families. Our families suffer just as much if not more than the miner themselves. So my heart goes out to the families also. Id like to thank you, each and everyone. Im humbled to be your, and im honored. Thank you. Mr. Bailey, thank you for your testimony and for your presence here today to bring your own story to this issue. We are grateful. And, finally, esther brisco. Mr. Chairman, members, if i could correct the record, my firm is not a law firm to its an actuarial firm. Im here having spent almost 40 years measuring the things that are going on in the federal black lung program. Primarily by seven it is calculate the dollar liabilities of these claims, for pretty much every entity out there that ends up having to pay one. I think youve heard today a number of times that youve heard several keywords. One of them is latent and progressive. The other is complicated pneumoconiosis. Thats not the whole story. It is certainly regrettable and my heart goes out to the coal miners series lung disease. There is no question that i think the process should be, could be made better, faster to do with those people. I would point out though that those people are very small fraction of the total universe of claims that go by every day. We are really talking about three diseases here. They are separate and distinct diseases. Complicated pneumoconiosis is without question blatant and progressive. Simple pneumoconiosis, which is the majority of the cases that have ever been compensated for federal black lung, its controversial but there are strong arguments that it is neither blatant nor progressive. If it is its to a very small degree, very few people. The of the disease which has not been mentioned yet today is chronic obstructive pulmonary disease all the other lung disease, emphysema, asthma, bronchitis that the general population experiences and vocal one population experiences. A different year, and is a very important difference is that the provisionprovision s of smoking in the eastern underground populatiopopulatio ns is four times higher than it is in the general population. Which means that the provisions 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 said her today toward entitling claims where the claimants principal lung problem is copd. Perhaps theres a small fraction of black lung mixed in with that, and this is a very, very difficult medicallegal conundrum with respect to these claims should proceed. I would point out, and they do work in pretty much all 50 state workers comp programs and have for many, many years, u. S. Workers compensation is very rapidly moving toward evidencebased. All the major workers comp states have medical treatment guidelines and disability rating guidelines that require evidencebased medicine to be applied. The concepts that are embedded in dols preamble to the 2001 regulations are pretty much in the opposite direction. And the Program Faces very great difficulties Going Forward trying to sort all of this out. I think without question the miners were very series lung disease should be compensated and they should be compensated rapidly. I would point out that in my expense investment would of claimants who have been diagnosed with complicated pneumoconiosis and have their claims paid, unfortunately not as rapidly as perhaps they should be because of the litigation process, both administrative dol and in the office of aljs, but a large light of claims that have always moved through the system, thereve been over 700,000 coal miners compensated for black lung since 1970. Since 1973 when the burden of paying those claims was shifted to the coal mine operators, what is little understood i think is that these claims are very expensive. At the high end of Workers Compensation claims costs. A miner in his mid 50s will eventually receive something on the order of half a million dollars. So because these claims are extremely expensive, that obviously generates litigation. Where the federal black lung program has not done, which successful black lung programs operating in major coal mining states did long ago, is introduced a gradient of disability that pays, you know, more towards the very serious injuries because of serious claims and less towards the others and or permit settlements of claims which dol has added 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 education process for the claimants with a series 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 mined us to, and try to make the program coal mine dust, make the program responsive to the full spectrum of diseases that arising out of coal mines. Thank you to much. I know we just added vote called so i will be brief and the first questioner to invent want want to turn to senator harkin so we can ask this question, or two, whatever he has and they be able to vote. I wanted to focus on, on the end of the recitation of the case of mr. Fox. And i want to make sure i heard you right. You talked about towards the end, when it happened to him, im looking at, im not sure you register my testimony but just looking at page three we talk about mr. Fox had been able to get out of the dust back in 1999, if the act intended, he mightve lived long enough to see his two grandchildren. I want to make sure i understood the timeframe. You were saying that in essence he was in the minds working, it places on the in the order of eight years that he would not have been working have been a different determination made, a determination that flowed from the fraudulent pathology reports. And ive come anything about that im not stating accurately . Yes. You have that correct, senator. So just walk through again why he was, why he was in the mine use it for eight years, just walk through that again in terms of he found his first claim in 1999 and was initially approved but lost on appeal. And because he didnt have the modest benefits from the workers Compensation Program, he needed to continue to work to still 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 2081 year before he died. In terms of what congress can do osha to enter judgment, what would you hopefully do if you had to itemize one or two actions . The first would be to require the disclosure of at least all of radiographic interpretations and pathology interpretations for the purpose of litigation. Just to protect the Miners Health and to deter misleading the judges. And i may have more questions for you. I want to go to mr. Bennet before turning to senator harkin. Mr. Bailey, thank you for the testimony. Its very difficult i think when we have any witness to come before a panel and a Training Center talk about your own life, your own experiences. That is particularly difficult with no disrespect to other witnesses your or another occasion. Its easy to talk about something when it doesnt involve your own individual experiences and that of your family. So we are especially grateful for your willing to talk about not just an issue or a Public Policy question, but really a question that involves your work, your lif life and your fa. Wanted to ask you, you expressed been going through your testimony as much as you focus on your own experiences and your own work situation, you talked as much about others as you did yourself and in particular you talked about those who dont have the representation that you have had with the United Mine Workers. Im assuming that you know, you know other miners now or have known them over the years that did not have representation. I wanted you to talk more about that or highlight some of those friends of yours of people youre acquainted with . Thank you. A lot of the miners dont work at union mines. Its like one on one. You are there yourself, your alone. Your sometimes lucky to even maintaining your job, much less receive any benefits after that job is over due to illnesses and different reasons. So it makes it very hard for them to get what they need because they dont know where to go to. Ill turn to senator harkin. I know were short on time. Thank you. Thank you, mr. Chairman. Mr. Cline, when you take these cases, is there any compensation you receive, lets say, at the first instance or maybe at the first filing or after the first appeal . Or just wait until the absolute and before you get compensated . I have to wait until the absolute and, until the claim is final decided. And you only get paid if the climate prevails spent that could be a couple years or three years spent its more like four or five, sender. Spent im very familiar with the Social Security claim as representatives, the national workstation of soldiers reclaim as representatives where lawyers take up Social Security disability claims that have been denied and then they go through the appeal process. But it seems to me there has to be some way of come in the first instance, helping attorneys be able to represent them and to be compensated somewhat along the track. Otherwise, attorneys, how are they going to pick up the case is . I think the legislation youve been working on with senator rockefeller, senator casey, its a step in the right direction. That if a claimant prevails at the ministry of law judge level that they might get some payment without waiting until the case is finally speak exactly. We hope to have it introduced. Hope, mr. Chairman. I want to make that point clear. Thats what of the many attorneys taking this a. They have families to feed. They have things to do and they cant continue to just hold it hope for five years in a they get paid. Is ridiculous. I want to add just one thing. Mr. Bailey and mr. Fox had simple pneumoconiosis before the complicated pneumoconiosis. Simple wooden progress they wouldnt get complicated. Dr. Parker, let me just ask you, is black lung disease a progressive illness . Yes, sir. Spent a 10 be certainly progressive while coal mine dust continues to begin late in workers lost. I thought i heard from mr. Briscoe, at least in his written testimony in which he said that once youre out of the mines that it doesnt progress anymore. Yes. He says this is contrary to 40 years of specific medical studies that clearly show 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 speaks yes, senator there are. That is the predominant medical literature. You know, we are not saying it never progresses. It certainly can in isolated cases. The question is one of the degree. Simple no konos is progresses in every case. We dont believe so. It just seems to me, i am a layman at this but i watched what happened to my own father. When he was younger, you know, he had come we all assume you black lung because that was before people called it at, but all those people who worked in mind 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 as they went along. In other words, when youre young, perhaps the effect of simple black lung are pneumoconiosis, i can hardly pronounce it, is not that pronounce that as you age it becomes more pronounced thats what i keep telling people that dont think about black lung is something that totally disabled person. What about someone like mr. Bailey, cant even play with his grandkids, can you go for a walk. Its that kind of a situation that really takes away your enjoyment of life in your 60s, 70s. We are really talking about two separate issues. The medical literature indicates that simple coworkers pneumoconiosis, lets say somebody leaves the mind with category one simple natoma goes as. It is very rare for the climate to develop category two or three. The xrays dont progress. Lung function does decline with age. It also declined with smoking but they can decline for lots of other reasons. So we are really, the issue is causality. Does coal mine dust exposure causing category one black lung situation, is that going to progress to category two or three down the road . The answer is theres no basis in the literature for that. With a lung function decreases . Yes. Got it. Dr. Parker. Niosh had a criteria document was published in number of years ago and its the basis of changing some of the recent rulemaking. And it along with substantial medical literature makes it very clear that lung function and read a graphic change can progress after dust exposure ceases. Listen again to mr. Bailey, thank you for being here and thank you for fighting the good fight and not giving up. You are again a strong person, and dont give a. Keep fighting and hope you get that Lung Transplant. Thank you. And id like to add that im also a nonsmoker. I read that. You have a smoke century teenager at some point that spent i used to sneak around 13, 15 when i could. I learned better. Thank you, mr. Bailey. Thank you, mr. Chairman. Thank you. We are grateful youre here with us and grateful that chairman harkin has been in the trenches on these issues for many, many years. I know have to vote but before we wrap up, i have a number of questions for the record that i was there, but mr. Bailey, you submit a picture to us of you i guess this is you over here . Second from the right in the back. I will ask you to identify the good looking one. [laughter] let me wrap up. I know that we have lots more we could cover but let me wrap up. First we will have a period within which other senators can submit questions for the record. And as chairman harkin noted we are working with senators rockefeller, hearken and mention of representative George Miller to continue to work with the department and niosh to make sure were doing everything we can to level the Playing Field for hardworking miners have had the misfortune of developing black lung disease and now face the uphill battle, the struggle for benefits. For all witnesses, please note that members may want is an additional question fully written responses as i mentioned at the mention what is that statements for the record or questions, then record will be open for seven days. And with that unfortunately because of time the hearing is adjourned. Thank you very much. [inaudible conversations] heres whats ahead on cspan2. Next, todays edition of washington journal in its entirety. Been a look at military retirement benefits, and later a Congressional Committee on Postal Service oversight. Join us on cspan tonight at 8 p. M. Eastern for a special look at Voting Rights and election law. We recorded a panel of analysts discussing the topic. Heres a preview. Let me to a historic job and put this in context of why weve come to different conclusions on the same topic. Republicans generally have a view of the purpose of an election, which is certainty. The purpose of holding an election is that we know who one. And that we are clear as who is the one and theres no question asked in one. So anything that in a sense cleaned up the electoral process, that gives us the uncertainty is a burden worth paying it because thats the purpose of an election. Democrats generally believe the legitimacy and election and false participation. Do anything that limits the participation of all those who could vote from voting undermines the legitimacy of the outcome. Even if that means that the results may be a little message on the edges but these are both legitimate a position to take. This is a perspective towards the purpose of the election, voting. But each perspective focuses on a different answer to the question of what is illegitimate burden for the state to impose upon voters in the voting process. And, of course, underneath this is a not so secret dirty little secret that, of course, each side takes a position that is accountable with outcomes that will help them. The broader electorate the more better it is for democrats. Thats not saying theyre doing it for that reason. Its just always easy to do the right thing if the end result is the one you want. Thats a short portion of tonights program on Voting Rights and election law. You can see the entirety at 8 p. M. Eastern on cspan. Up next on cspan2 its todays edition of washington to. We kicked off or show asking viewers if they thought that romney should run for president again. We spoke with reporter on the same topic. We look at items in todays newspaper. This segment is about 45 minut minutes. Host will get two calls and comments in just a moment. And also let you hear what governor romney said on the Program Early this week. A quick look at other headlines. Richmond times on the star of the former governor of virginia, bob mcdonald. Yesterday as the defense wrapped up its test when, a daughter testifying on the relationship between his mother and father and the jury could get the case as early as friday. This from the miami herald. Governor rick scott when his republican nomination but he will be challenged by the new democrat governor cristfo