More Pennsylvania judges sought for black lung cases

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WASHINGTON – Pittsburgh needs three more administrative law judges to reduce a backlog and to handle appeals being re-filed by miners and their widows after evidence surfaced that doctors hired by coal companies were systematically misdiagnosing black lung disease to help employers avoid paying claims, Deputy Labor Secretary Chris Lu testified Tuesday.

His department is seeking a $2.72 million increase in funding for the Office of Administrative Law Judges, an 11.5 percent hike – the largest increase sought in a decade.

The bulk of those funds would be used to increase staffing levels, particularly in the Pittsburgh and Washington, D.C,. offices, where administrative judges hear the most black lung cases, a department official explained after the hearing.

Pittsburgh currently has two administrative law judges who primarily hear black lung cases.

Sen. Bob Casey, D-Pa., told Mr. Lu he is concerned that the funding request may be insufficient.

“I believe you’re going to need substantially new resources based on the work that you’re doing,” he said during a meeting of the Senate Subcommittee on Employment and Workplace Safety, which he chairs.

Claimants wait an average of 429 days for a case to be assigned and another three or four months for court hearings. That’s far too long, Mr. Casey said.

“Our nation’s hardworking miners and their families deserve much better than that,” he said.

He needn‘‍t have told that to Robert Bailey, a retired West Virginia miner whose testimony at Tuesday’s hearing was punctuated by wheezes.

Mr. Bailey, who is awaiting a lung transplant, said he is one of the lucky ones because his black lung claim ultimately was approved after a long appeals process. It took almost four years, he said, but others like him have been waiting longer.

“This isn’t just about the daily struggles of our disease but the … uncertainty” of the claims process, he testified.

Sen. Tom Harkin, D-Iowa, son of a coal miner, was sympathetic to the plight.

“We always called it ‘miners’ cough,’ and that’s what they had. They may 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 and 70s,” Mr. Harkin said. “They deserve compensation, and they deserve it now.”

With a backlog already at 2,866, the department expects another 7,400 cases to be filed by the end of the fiscal year, up from about 6,400 last year.

The increase is partly because new cases are emerging as miners age, and partly because the department invited 1,100 people to resubmit claims after an investigation by the Center for Public Integrity found company-hired doctors were ignoring medical evidence of black lung in order to help employers avoid paying claims.

Attorney John Cline, who represented one of the miners featured in the Center for Public Integrity Report, said his now-deceased client might have lived longer but for the company-paid doctor’s deception and for the lack of patient access to pathology reports that would have shown evidence of black lung.

“It makes no sense to withhold medical information,” Mr. Cline testified. “Disclosure is the only way to protect the health of miners.”

Since that report, the Department of Labor has made changes requiring more training for doctors who investigate, requiring government lawyers to intervene in certain cases, promising increased access to medical reports by company doctors and providing federally funded medical exams to help miners bolster their cases.

Launched in February as a pilot program, those changes have been effective, Mr. Lu said in written testimony.

Miners have complained that their employers are not required to disclose medical reports used to fight compensation claims.

Typically, benefit awards range from $625 to $1,251 per month.

Black lung, also known as pneumoconiosis, is an incurable disease caused by exposure to coal dust. Symptoms include cough, shortness of breath and airway obstruction that can lead to fibrosis and emphysema.

Washington Bureau Chief Tracie Mauriello:; 703-996-9292.

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