Information for Black Lung Claimants
The Benefits Review Board reviews workers’ compensation claims and issues appellate decisions in cases arising under the Black Lung Benefits amendments to the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §901 et. seq.(the Black Lung Act). The Benefits Review Board exercises the appellate review authority formerly exercised by the United States District Courts. The decisions of the Benefits Review Board may be appealed to the United States Courts of Appeals, and thereafter to the United States Supreme Court.
Filing a claim
The Federal Coal Mine Health and Safety Act of 1969, as amended, provides for monthly compensation and medical treatment benefits to miners who contract coal workers’ pneumoconiosis, commonly referred to as “black lung disease,” and become totally disabled due to the disease. Surviving spouses, surviving divorced spouses, and certain surviving children may also file claims for monthly compensation benefits if black lung disease has caused, or contributed to, a miner’s death.
Initially, the miner or survivor must file a claim form and employment history form at the district director’s office nearest to his or her residence. To locate the nearest district director’s office, go to http://www.dol.gov/dol/location.htm.
The district director schedules the miner for a physical examination, coordinates the collection of evidence, including hospitalization and treatment records, and investigates the miner’s employment history to determine which employer will be responsible for the payment of any benefits. The district director will then issue a proposed decision and order based on the evidence collected. Any dissatisfied party may request a hearing within 30 days of the date of the proposed decision and order.
If a hearing is requested, then the claim is referred to the Office of Administrative Law Judges (OALJ).
Attorneys and representatives
If your claim is referred to the OALJ for a hearing, it is recommended that you obtain an attorney, who is experienced in black lung claims, to represent you at your hearing. Under the law, you may not be charged a fee by an attorney if no black lung benefits are awarded to you. However, if you receive an award of benefits, your lawyer’s fees will be paid by your former employer or the Black Lung Disability Trust Fund.
If you do seek someone to represent you, it is important that you do so as quickly as possible. Your representative will need time to prepare your case and enter an appearance on your behalf.
The OALJ is prohibited by law from appointing an attorney to represent you, nor can we make a referral to an attorney. See 29 C.F.R. § 18.35. The Legal Services Corporation has information on low-cost legal services. The American Bar Association maintains a list of lawyer referral contacts. You may also contact the district director’s office where you initially filed your claim for the names of possible lawyers who may represent you. The links are provided for informational purposes only. The Department of Labor does not endorse any particular organization, lawyer, or law firm.
You may also elect to use a “lay representative,” who is someone that is not licensed to practice law, to represent you or you may choose to appear and represent yourself (“pro se”). As with attorneys, a lay representative is not entitled to fees unless you are awarded black lung benefits. One important distinction between attorneys and lay representatives is that, if you are awarded benefits and there is no employer liable for the payment of the benefits, then you must pay the fees and costs of the lay representative. The Black Lung Disability Trust Fund will not pay fees or costs to lay representatives. If, on the other hand, you are awarded benefits and an employer is liable for the payment of the benefits, then the fees and costs of the lay representative will be paid by the former employer.
A claim that has been referred to the OALJ goes to the Chief Docket Clerk who assigns a case number to the claim. This case number is used by the OALJ to track all incoming evidence and correspondence as well as outgoing decisions and orders.
Generally, an Administrative Law Judge (ALJ) will be assigned multiple claims to be heard in the same or similar location. The hearing location in a claim is usually less than 75 miles from the miner’s or survivor’s residence. The ALJ will travel to that location for the hearing.
Submission of evidence
Immediately upon assignment of claims for hearing, the ALJ will issue a pre-hearing order. Read this order carefully. It will tell you the hearing date, time, and location. The order will be signed by the ALJ who will hear and decide the claim. Finally, the order will tell each party when to submit his or her evidence such as treatment and hospitalization records, medical opinions, and testing including chest x-ray, blood gas, and pulmonary function study reports.
At the hearing, the miner or survivor will usually testify. Testimony generally covers the miner’s employment history as well as his or her physical condition, medical treatment, and any medications s/he has been prescribed. Sometimes a family member or co-worker will testify. Each party must also present any remaining medical evidence that it wants the ALJ to consider. The hearing usually lasts about one hour. The ALJ’s decision will be based on testimony at the hearing as well as the evidence admitted at the hearing.
The ALJ’s decision
Once the record is closed, the ALJ will write a decision. The ALJ’s decision will be based on testimony at the hearing as well as all documentary evidence admitted at the hearing and any closing arguments by the parties. The ALJ’s decision is de novo, which means that any findings and conclusions of the district director are not relevant or binding on the ALJ. At the end of the decision, you will find a “Notice of Appeal Rights.” Any party that is dissatisfied with the ALJ’s decision may file an appeal with the Benefits Review Board (BRB).
The length of the hearing process and the time it takes for an ALJ to issue your decision will depend on how complex your claim is as well as the volume of cases pending on the ALJ’s docket.
If a party files an appeal with the BRB, then a “Notice of Appeal” will be issued by the BRB and each party will be advised of the time deadlines for submitting arguments on appeal to the BRB. The BRB may affirm, reverse, or modify the ALJ’s decision, or it may remand the claim to the ALJ for further consideration. The BRB’s decision is the final decision of the Secretary of Labor and any further appeal must be made to the appropriate United States Circuit Court of Appeals.
Hearings at the OALJ are open to the public. Decisions rendered by the ALJ are “posted” on the U.S. Department of Labor Web site.