Filing a claim
The Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (“Act”), 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 sufficiently contributed to, a miner’s death.
In 2010, as part of the Patient Protection and Affordable Care Act, Public Law No. 111-148, § 1556(b), Congress further provided that an eligible survivor of a miner who was determined eligible to receive benefits at the time of his or her death is automatically entitled to receive benefits, and thus does not have to establish that the miner’s death was due to coal workers’ pneumoconiosis.
Initially, the miner or survivor must file a completed 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 the DCMWC Offices page.
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 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 former employer or the Black Lung Disability Trust Fund will pay your lawyer’s fees.
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; similarly, we cannot make a referral to an attorney. See 29 CFR 18.1. The Legal Services Corporation has information on low-cost legal services. The American Bar Association maintains a list of lawyer referral contacts. This notice contains the names, addresses, and phone numbers of black lung clinics and district directors’ offices across the country as well as information pertaining to the black lung clinical program of a law school. You may, for example, contact the district director’s office where you initially filed your claim for the names of possible lawyers who may represent you. The links in this notice are provided for informational purposes only. The Department of Labor does not endorse or warrant the performance of any particular organization, lawyer, lay representative, or law firm.
You may also elect to use a “lay representative,” someone who is not licensed to practice law, to represent you or you may choose to appear and represent yourself. As with attorneys, a lay representative is not entitled to fees unless you are awarded black lung benefits. However, there is one important distinction between attorneys and lay representatives. Because the law provides for the award of only attorney’s fees, the Black Lung Disability Trust Fund and any named employer are not responsible for the payment of such fees to lay representatives. Therefore if you are awarded benefits, then you must pay any fees and costs of the lay representative.
A claim that has been referred to the OALJ is received by 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 general 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
Generally, soon after the assignment of claims for hearing the presiding ALJ will issue a pre-hearing order. Read this order carefully. It will tell you the hearing date, time, and location. The ALJ who will hear and decide the claim will sign this order. Finally, the order will tell each party when to submit his or her evidence, which may include treatment and hospitalization records, medical opinions, and testing including chest x-ray, blood gas study, 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 he or she has been prescribed. Sometimes a family member or co-worker will testify. Each party must also present any remaining medical evidence for consideration by the ALJ. 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. Again, 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 made by the district director are not 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 a decision in your case will depend on how complex the case is and the volume of cases pending on the ALJ’s docket.
Hearings at the OALJ are open to the public. The ALJ decisions are posted on the OALJ website.
If a party files an appeal with the BRB, then a “Notice of Appeal” will be issued by the BRB advises each party of the time deadlines for submitting arguments on appeal. 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, and thereafter to the United States Supreme Court.