S. Hrg. 103-514
BUCK LUNG BENEHTS RESTORATION AQ
Y4.L 11/4: S, HRG. 103-514
Black Lung Benefits Restoration Act..
LABOR AND HUMAN RESOURCES
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
TO MAKE IMPROVEME^^^S IN THE BLACK LUNG BENEFITS ACT, AND
FOR OTHER PURPOSES
MARCH 15, 1994
Printed for the use of the Committee on Labor and Human Resources
U.S. GOVERNMENT PRINTING OFFICE
77-618 CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402
^^ S. HrG. 103-514
V \v/ BUCK LUNG BENERTS RESTORATION KCl
' il 11/4: S. HRG, 103-514
lack Lung Benefits Restoration Act...
LABOR AND HUMAN RESOURCES
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
TO MAKE IMPROVEMENTS IN THE BLACK LUNG BENEFITS ACT, AND
FOR OTHER PURPOSES
MARCH 15, 1994
Printed for the use of the Committee on Labor and Human Resources
U.S. GOVERNMENT PRINTING OFFICE
77-*18 CC WASHINGTON : 1994
For sale by the U.S. Ciovemment Printing Olfice
Superintendent of Documents. Congressional Sales Office, Washington. DC 20402
COMMITTEE ON LABOR AND HUMAN RESOURCES
EDWARD M. KENNEDY, Massachusette, Chairman
CLAIBORNE PELL, Rhode Island NANCY LANDON KASSEBAUM, Kansas
HOWARD M. METZENBAUM, Ohio JAMES M. JEFFORDS, Vermont
CHRISTOPHER J. DODD, Connecticut DAN COATS, Indiana
PAUL SIMON, IlHnois JUDD GREGG, New Hampshire
TOM HARKIN, Iowa STROM THURMOND, South Carolina
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
JEFF BINGAMAN, New Mexico DAVE DURENBERGER, Minnesota
PAUL D. WELLSTONE, Minnesota
HARRIS WOFFORD, Pennsylvania
Nick LnrLEFlELD, Staff Director and Chief Counsel
Susan K. Hattan, Minority Staff Director
Tuesday, March 14, 1994
Simon, Hon. Paul, a U.S. Senator from the State of Illinois, prepared state-
Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina,
prepared statement 8
Fraley, Jackie, Lebanon, VA; Calvin Dunford, Bandy, VA; Jean Vamey,
Shelbiana, KY; and Lawrence Zomes, Knox, IN 9
Hess, Allen B., president. National Black Lung Association, Richlands, VA;
Richard L. Trumka, president, United Mine Workers of America, Washing-
ton, DC; and Bruce Watzman, vice president of safety, health, and human
resources. National Coal Association, Washington, DC 22
Prepared statements of:
Mr. Trumka 26
Mr. Watzman 30
Sanders, Stephen A., Appalachian Research and Defense Fund of Kentucky,
Inc., prepared statement 44
Douglas, Tina, executive director, Paul Siegel, organizing secretary and
Charge New, chairman of the Chicago Area Black Lung Association, joint
prepared statement 46
Cushman-Wood, Rev. Darren, pastor. East Tenth United Methodist Church,
Indianapolis, IN, on behalf of the Indiana Black Lung Association, prepared
Association of American Railroads, Edwin L. Harper, president, prepared
Articles, publications, letters, etc.:
The Tragedy of Black Lung, by Hon. Robert E. Wise, Jr., from the
Congressional Record, March 5, 1992 — Extensions of Remarks 63
Communications to Hon. Paul Simon, a U.S. Senator from the State of Illi-
Various miners, dated March 1994 53
BLACK LUNG BENEFITS RESTORATION ACT
TUESDAY, MARCH 16, 1994
Committee on Labor and Human Resources,
The committee met, pursuant to notice, at 10:25 a.m., in room
SD-430, Dirksen Senate Office Building, Hon. Paul Simon presid-
Present: Senators Simon and Wofford.
Opening Statement of Senator Simon
Senator Simon [presiding.] The hearing will come to order.
First of all, my apologies for holding you up, but we had a vote
on the floor of the Senate,
Coal miners face special problems. Before I came to Congress,
the original black lung legislation was passed for pneumoconiosis.
Pneumoconiosis is sometimes inaccurately described as a disease,
but it is actually a hardening of the lungs due to the absorption
of coal dust.
For a time, very candidly — and I do not think my friend. Rich
Trumka, will mind my saying this. Some people received benefits
who should not have. It was too easy to get benefits. And then it
moved over to the other extreme, and it became impossible to get
benefits. At that point. Congressman Carl Perkins and I introduced
legislation. I was in the House then. The legislation said that if you
have served 25 years in an underground mine, you are eligible for
benefits. We would not have to go through all the tests, claims,
counterclaims and legal difficulties that we now go through.
Unfortunately, that legislation did not pass. The evidence is over-
whelming that anyone who has served in an underground mine for
25 years nas pneumoconiosis.
We did get a slight modification, but it is still extremely difficult
for coal miners or their widows to get benefits.
We want to mine coal. I live in coal mining territory in deep
southern Illinois. I want to see that we use that source of energy.
But I do not want to do it at the risk of the health of coalminers,
or at the risk of marring the future of the coal miners and their
families who give this Nation our energy. We ought to use coal, but
we ought to also protect coal miners in the process.
My staff has put together two cases. Let me just read these two
cases. On June 4, 1993, Lyndell Laird called my Carbondale office
to tell me what is happening to his mother, Sophie Laird, and her
husband Elmer's black lung case. I had first been contacted by the
Laird family in regard to Elmer's case 10 years ago. Let me take
a moment to tell you about Elmer Laird.
Elmer mined coal underground for 46 years. The evidence is
overwhelming that anyone who has been in an underground coal
mine for 46 years, no question, has pneumoconiosis. In 1973, the
Department of Labor went to where Elmer worked to take chest x-
rays of the miners to determine if any of them had black lung.
Elmer took the test and was told by the Department that he had
the problem. In 1973, however, Elmer was only age 63 and there-
fore, he worked until retirement at age 67.
Incidentally, for those who say that if we have black lung bene-
fits, people are just going to take advantage of them — the averse
benefits are about 12 percent of what a coal miner makes. So if a
coal miner has a choice between continuing to mine or drawing
black lung benefits, he is going to continue to mine. You do not
w£mt to receive just 12 percent of the money you earned before.
Elmer then applied for black lung benefits. He was awarded ben-
efits, but the decision was appealed. While the case was on appeal,
interim benefits were started in 1976. Elmer's son. Lyndell, called
to tell me that his mother had received a letter from the United
States Department of Labor stating that she must pay back
$59,210.60 within 30 days. Fifty-nine thousand dollars is 17 years
of interim black lung benefits that have been paid to Elmer. Elmer
died on April 2, 1993. His black lung case is still being appealed.
Under current law, because Elmer Laird's case was not final, and
it cannot be proven that he died of black lung, his widow must re-
turn the $59,000 and is not eHgible for survivor benefits. And we
have another case that is somewhat similar.
Clearly, we ought to be doing more to protect coal miners and
their families. I am not here to say that the legislation that has
been introduced is written in stone. We are willing to work out
compromises. But we ought to be doing something more to protect
the nealth and the future of miners, and to provide compensation
for those who have been breathing that dust,
I have been in coal mines maybe a dozen times in my life, not
more. But I know that when I get out, and I blow my nose, I can
see that dust in mv handkerchief I know what is happening in
terms of what people are breathing in, and that calcifies the lung.
That is the problem, and we must do something about it.
I will put my prepared statement and that along with Senator
Thurmond in the record at this point.
[The prepared statements of Senators Simon and Thurmond fol-
Prepared Statement of Senator Simon
Today the Senate Labor and Human Resources Committee will
be hearing testimony in regard to S. 1781. the Black Lung Benefits
Restoration Act. I am pleased to be joined by an original cosponsor
of the bill, Senator Harris WofFord. I would also like to recognize
all the miners and their families who have taken the time to attend
the hearing today, and who have written to me about their per-
The Black Limg Benefits Restoration Act should not just be of in-
terest to those fi-om coal producing states. The Black Lung Benefits
Restoration Act should be of interest to anyone interested in equity
Title V of the Federal Coal Mine Health and Safety Act of 1969
established a program of monthly cash payments to eligible coal
miners totally disabled by coal workers' pneumoconiosis, or "black
lung^ disease, and their survivors. Amendments in 1972 and 1977
made changes to the programs's eligibility so that more claimants
would qualify for black lung benefits.
The Black Lung program has two components — part B and part
C. Under Part B, cash benefits are awarded for miners disabled by
black lung, and their dependents and survivors. The beneficiaries
are paid from annually appropriated general revenues by the Social
Security Administration. Benefits under Part B are only paid only
to claim filed before July 1, 1973 (for some survivors the deadline
was December 1973). When the period of federal responsibility for
claims filed under Part B ends, claims are to be paid under Part
C by the "responsible coal operator". If no such operator can be
found, then claims are to be by the coal industry as a whole
through the Black Lung Disability Trust Fund. The Trust Fund, fi-
nanced by an excise tax on coal, is to pay benefits when either no
responsible coal operator can be identified, or if the operator is in
default, or if the claim is based on coal mine employment that
ended before January 1, 1970.
In 1981, Congress enacted legislation to eliminate the Trust
Fund deficit and debt by increasing the excise tax on coal and
strictly limiting the eligibility for black lung benefits for future
claimants. The debt reached $4 billion at the end of last year.
The changes made to the Black Lung Program through the 80's
will not eliminate the deficit or the debt. Moreover, the limits on
eligibility are not equitable.
The purpose of the Black Lung Benefits Restoration Act is to es-
tablish a more objective and equitable process for determining
black lung benefits.
Let me share with you two stories about mining families from my
state of Illinois.
On June 4, 1993, Lyndell Laird called my Carbondale office to
tell me what is happening to his mother, Sophie Laird, and her
husband, Elmer's, black lung case. I had first been contacted by the
Laird family in regard to Elmer's case 10 years ago. Let me take
a moment and tell you about Elmer Laird. Elmer mined coal un-
derground for 46 years. In 1973, the Department of Labor came to
where he worked to take chest x-rays of the miners to determine
if any of the miners had black lung. Elmer took the test and was
told by the Department that he had the disease. In 1973, however,
Elmer was only aged 63; and therefore worked until retirement at
age 67. He then applied for black lung benefits. Elmer was award-
ed benefits, but the decision was appealed. While the case was on
appeal, interim benefits were started in 1976.
Elmer's son, Lyndell, called to tell me that his mother had re-
ceived a letter from the United States Department of Labor stating
that she must pay back $59,210.60 within 30 days. Fifly-nine thou-
sand, two hundred ten dollars and sixty cents is 17 years of interim
black lung benefits that had been paia to Elmer. Elmer died April
2, 1993. His black lung case is still oeing appealed.
Under current law — ^because Elmer Laird's case was not final,
and it cannot be proved that he died of black lung — ^his widow must
return the $59,210.60 and is not eligible for survivor benefits.
Fortunately, Mrs. Laird and her husband were frugal and left
the interim benefit money in a bank drawing interest. However
most cannot afford to leave the benefit money in a bank. Most need
the benefits for their day-today needs and medical expenses.
The Black Lung Benefits Restoration Act would help Mrs. Laird,
and others like her in similar situations. Under S. 1781, Mrs. Laird
would not have to return the 17 years worth of benefits, she would
be eligible for spousal benefits, and it wori't take almost 20 years
to determine whether or not someone is eligible.
On September 13, 1993, the children of Joan Durbin wrote to me
about the difficulty their mother was facing regarding her late hus-
band's black lung benefits. For 18 years Joan, her late husband,
Ronald Durbin, and their eight children have been caught in the
unrelenting cycle of the black lung benefits program. They were
awarded benefits, only then to be denied. Some of the things the
Durbins had to go through include: being told in 1985 that they
would have to repay ten years of benefits, which came to $53,000;
for 18 years Ronald having to undergo numerous medical examina-
tions and court baffles to prove his claim, which were paid for at
his and his famil/s expense; and the emotional toll the disability
and unending benefits baffle took on his family. As the letter says,
"Because of this on-again off-again Black Lung claim, over the
years, our parents had to mortgage the house they owed for 35
years, cash in various life insurance policies, and have to do with-
out many things. Even after Ronald's death in 1992 and an autopsy
confirming a diagnosis of black lung, his widow is still fighting.
Joan was awarded survivor benefits in January of 1993, only to
be denied benefits the following July.
Under the Black Lung Benefits Restoration Act the Durbins
would not have had to wait 18 years for a decision. Moreover, Joan
would be eligible for benefits as Ronald's widow.
Black Lung Benefits Restoration Act
Under current law, if a miner receives an interim ruling from the
Department of Labor's Deputy Commissioner that he is entitled to
benefits, and it is later determined by an administrative law judge
that the miner is not entitled to benefits, then the miner must re-
fund all interim benefits received.
There is a significant delay between the Deputy Commissioner's
ruling and the Administrative Law Judges ruling. According to a
General Accounting Office report, the Deputy Commissioner's deci-
sion takes an average of 2-3 years. In addition, the Administrative
Law Judge ruling could take an additional 2-3 years. By this time.
the miner has usually spent the interim benefit. Furthermore, the
system is currently weignted in favor of the coal operators.
The Restoration Act would not require the miner, who through
no fraud or deception, is awarded benefits prior to the final adju-
dication of their claim, to return any of the interim benefits it it
is later determined that the miner is not entitled to benefits.
In addition, before the final adjudication of a claim, if a miner
through no fraud or deception, received an interim benefit and has
repaid the interim benefit to the Trust Fund, then the Trust Fund
is to refund the repayment to the miner.
If a miner receives interim benefits from an operator, and is later
found to be ineligible, the Trust Fund will reimburse the operator.
Last, if the Secretary of Labor makes an initial determination of
eligibility, or that particular medical benefits — payable, or an
award of benefits are made, then the responsible operator, within
30 days of such determination or award, is to begin payment of
monthly benefits. If an operator fails to make any payment re-
quired Dy an initial determination or award in a timely manner,
such determination or award shall be considered final as of the
date of its issuance.
EVIDENCE TO DETERMINE BENEFIT EUGIBILITY
Under current law, the miner and the opposing party (either the
responsible coal operator or the Trust Fund) can require any num-
ber of medical examinations, and present any numoer of medical
experts as evidence to determine a miner's eligibility for benefits.
The problem is one of "David v. Gohath". The coal miner is pitted
against the resources of the coal operators/industry or the federal
government. More often than not, the coal miner is barely able to
scrape together enough money to pay for one medical examination.
During the course of all proceedings on a claim, the Restoration
Act would limit the number of medical examinations aiid chest x-
rays the miner can use as evidence to support eligibility to three
each. In addition, during the course of all proceedings on a claim,
the responsible operator or the Trust Fund may require that the
miner undergo certain medical examinations, but the responsible
coal operator or Trust Fund may not submit or require any more
medical examinations than are conducted and submitted during
the course of all proceedings by the miner, and may offer into evi-
dence the set results of one chest x-ray for each set offered into evi-
dence by the miner. However, a complete pulmonary evaluation
provided each miner, any evaluation developed by the District Di-
rector, £iny record of hospitalization or medical treatment for pul-
monary or related disease, and a biopsy or an autopsy, shall be re-
ceived into evidence without regard to the previous limitations.
Also, in addition to the above medical examinations, each party
may submit not more than one interpretive medical opinion. Such
an opinion may review other evidence derived from chest x-rays,
blood gas studies, or pulmonary function studies contained in the
reports offered into evidence.
^ administrative law judge may require the miner to submit to
a medical examination by a physician assigned by the District Di-
rector if the administrative law judge determines that, at any time,
there is good cause for requiring such an examination. Good cause
shall exist only when the administrative law judge is unable to de-
termine from existing evidence whether the claimant is entitled to
A request of modification of a denied claim under section 22 of
the Longshore and Harbor Workers' Compensation Act shall be
considered as if it were a new claim for the purpose of applying the
limitations on the number of medical examinations.
The opinion of the miner's treating physician is to be given sub-
stantial weight over other physicians in determining eligibility for
benefits, if the treating physician is board certified in a specialty
relevant to the diagnosis of total disability or death due to black
Under the current law, a widow(er) cannot receive survivor bene-
fits unless it is proven that the coal miner died from black lung.
Proving that the cause of death was black lung is extremely dif-
ficult. In addition, the widow(er) is usually a senior citizen who is
left with limited or no means of support.
The Restoration Act would provide that if an eligible survivor
files a claim for benefits and the miner was receiving benefits be-
fore the final adjudication, or was totally disabled with black lung
at the time of death, it is presumed that he died from black lung —
thus entitling the widow(er) to survivor benefits. However, if the
miner's death was the result of an event that had no medical con-
nection with black lung, then the widow would not be entitled to
benefits. For example, the miner was killed in a car accident.
In addition, a widow(er) who was married to the miner for less
than nine months prior to the miner's death is not eligible for sur-
vivor benefits, unless children were born as a result of the mar-
The widow(er) of a miner may not receive survivor benefits if
they remarry before attaining the age of 50. In addition, the
widow(er) may not receive an augmentation of benefits on any
basis arising out of the result of a remarriage.
Under current law, the Department of Labor designates a parade
of possible responsible operators.
The numerous designated operators all must incur considerable
expense defending themselves against such claims. This process is
also time consuming.
The Restoration Act would require the Secretary of Labor, prior
to issuing an initial determination of eligibility and after investiga-
tion, notice, and a hearing, to determine whether an operator
meets the Secretary's criteria for liability as a responsible operator.
If a hearing concerning the question of liability is requested in a
timely manner, then the decision of the administrative law judge
conducting the baring shall be issued no later than 120 days after
such request and is not subject to further appellate review.
If the administrative law judge determines that an operator's re-
quest for a hearing on the question of liability was made without
reasonable grounds, the administrative law judge may assess the
operator for the costs of the proceeding (not to exceed $750).
It is often difficult to get a lawyer to take on black lung cases
as the cases are often difficult, expensive, ad time consuming.
You'll recall that Mr. Baird came to me with his case 10 years ago.
Under the Restoration Act, if a miner is to be awarded benefits,
the miner is entitled to reasonable attorney's fees and expert wit-
ness fees that are to be paid by the responsible operator or if there
is no responsible operator, then by the Trust Fund. However, the
determination of wnat is reasonable must be made within 60 days
of the miner submitting a petition outlining the costs. Furthermore,
the attorneys must be paid within 45 days of the notice of deter-
mination, unless a motion to reconsider the amounts or the liability
If the claim is denied, and the miner is not to be awarded bene-
fits, the Trust Fund will pay the responsible operator's reasonable
The awarding of reasonable attome/s fees shall apply only to
those claims that are filed for the first time after the date of enact-
ment of this Act.
Under the Restoration Act, no appeal of an order in a proceeding
under the Black Lung Benefits Act may be made by a miner or re-
sponsible operator to the Benefits Review Board unless such order
has been made by an administrative law judge.
In addition, the Secretary of Labor may not delegate the author-
ity to refuse to acquiesce in a decision of a Federal court.
The Restoration Act would allow any claim that was filed under
the Black Lung Benefits Act afl^r January 1, 1982, but before the
date of enactment of the Black Lung Restoration Act, to be refiled
for a de novo review on the merits.
Coke ovens are included to be covered by this Act.
BENEFITS REVIEW BOARD AND EMPLOYEE COMPENSATION APPEALS
At the request of the Administration, the Black Lung Benefits
Restoration Act would allow the Secretary of Labor to appoint and
fix the compensation of the Benefits Review Board and Employee
Compensation Appeals Board members, but the rate of compensa-
tion shall not exceed the daily equivalent of the maximum rate
specified in section 5376 of title 5, U.S.C.
S. 1871 is a step in the right direction toward providing a more
equitable process. In drafting S. 1781, comments were received
from the National Black Lung Association, the National Coal Asso-
ciation, and the Department of Labor. Many of the comments were
constructive and incorporated into the introduced bill. As the Com-
mittee moves forward on S. 1781, I look forward to continuing to
work constructively with interested and parties.
I look forward to the testimony that will be presented this morn-
ing. Our first panel today will share their personal stories with
Committee. Stories that are similar to the Durbin and Laird fami-
Prepared Statement of Senator Strom Thurmond
Mr. Chairman, it is a pleasure to be here this morning to receive
testimony concerning S. 1781, the "Black Lung Benefits Restora-
tion Act. I would like to join my colleagues in welcoming our wit-
nesses here today.
As you know, S. 1781 would amend various provisions of the
Black Lung Benefits Act and the Black Lung Benefits Revenue Act
The Black Lung Benefits Act provides monthlv cash payments to
current and former coal miners who are disabled by coal workers'
pneumoconiosis, also known as black lung disease. Their survivors
and dependents are also eligible for benefits.
The Black Lung Benefits Revenue Act of 1977 created the Black
Lung Disability Trust Fund, which is financed by an excise tax on
coal mined and sold in the U.S. The Trust Fund was created be-
cause none of the States had adequate compensation programs in
place and the Department of Labor was unable to identify a major-
ity of the responsible operators. The Trust Fund is currently $3.6
billion in debt.
Mr. Chairman, this measure will greatly expand the benefits of
black lung claimants with limited or no discernible disability. It
will also restrict the ability of an operator to properlv defend itself
First, a claimant will not have to return any of the benefits re-
ceived if they are found ineligible upon final determination. The
current system has been established so that a claimant, with a rea-
sonable chance of success, may begin to receive benefits before the
final adjudication of their claim. I agree that this system addresses
the need for claimants to receive benefits during the often drawn
out adjudicatory process. However, S. 1781 will make the respon-
sible operator begin benefit payments within 30 days of initial eli-
gibility determination. It will not allow him to recoup the benefits
bestowed if further proceedings determine that the claimant was
not properly eligible for those benefits. It also mandates that if
benefits are not given within 30 days of the initial eligibility deter-
mination the benefits award will be considered final.
Second, this measure will impose a strict limit on the defendant's
ability to introduce evidence. It also gives a "substantial" pref-
erence to the evidence presented by the claimant. I am concerned
with the constitutional issues raised by this limitation on one par-
ty's evidentiary rights. I am also concerned with the imbalance cre-
ated by the preference given to one party over another. I believe
that a court or Administrative Law Judge should be presumed im-
partial and allowed to make determinations based on the evidence.
Third, this measure would create a presumption that a miner
died of black lung if they died while receiving benefits, even before
final adjudication. This greatly expands the ability of survivors to
receive benefits without a determination of harm due to black lung.
We must question whether we are compensating a survivor for the
loss of a loved one because of a resulting disease due to their em-
ployment or simply allowing a pension to go to a survivor of a per-
son employed in a particular field of work.
Fourth, this measure will greatly liberalize the granting of an
award of attorney's fees and expert witness fees. It will make the
operator responsible for these fees if the claimant is awarded any
benefits. However, it will not make the claimant responsible for the
fees of the operator if the claimant does not receive benefits. It al-
lows the operator to be reimbursed by the trust fund, which is
funded by taxes on the operator.
Fifth, this measure will permit the refiling of any claim filed
after January 1, 1982, for a de novo review on the merits. Cur-
rently, claimants have unrestricted filing authority as long as they
show a change in condition. This provision will simply create a ju-
dicial nightmare of new claims.
Finally, this measure will expand the number of new claimants
to include coke oven workers even though their respiratory impair-
ment may not be related to long term exposure of coal mine dust.
We must question how many new cases this could involve.
I would again like to welcome our witnesses here today, and I
look forward to their testimony.
Senator Simon. I will call our first panel to the witness table,
please. Jackie Fraley of Lebanon, VA; Calvin Dunford of Bandy,
VA; Jean Vamey of Shelbiana, KY; and Lawrence Zornes of Knox,
We will start with you, Ms. Fraley, if you do not mind.
STATEMENTS OF JACKIE FRALEY, LEBANON, VA; CALVIN
DUNFORD, BANDY, VA; JEAN VARNEY, SHELBIANA, KY; AND
LAWRENCE ZORNES, KNOX, IN
Ms. Fraley. My name is Jackie Fraley, and I am here to rep-
resent my father because he is so disabled he is not able to come
and give his own personal testimony.
My father worked in the coal mines for 22 years. He was an
equipment repairman for the mines. His job was to daily blow the
coal dust from the filters of the air compressors. He cared for ap-
proximately 10 compressors a day. Sometimes, Dad said the dust
would be so bad that he would have to lie down on the ground in
order to breathe.
Dad was a very dedicated miner for the company. Many times,
he would work 7 days a week, and we as a family knew that his
work came first and then his family.
After working in the mines for 16 years, father started having
breathing problems and pneumonia. His doctor said that his lungs
were weak because he had black lung. Afterward, Dad was diag-
nosed by a lung specialist, a B reader in x-rays, to nave black lung.
Father continued to work in the mines because he had a family
to support, and he had three children to put through school and,
hopenilly, college. Since black lung is a progressive disease, al-
though Dad was having lung problems, he was still able to work
and wanted to work as long as he could.
He worked on until July 1978, when he was in a mining accident
and was paralyzed from his waist down and had to quit. He then
applied for his black lung benefits and was passed by the doctors
represented by the Labor Department. He then began drawing his
black lung benefits.
Dad drew black lung benefits for close to 10 years. During these
years, though. Dad's lung condition was continuing to get worse.
Then, 1 day. Dad and Mom received in the mail a letter, as you
were stating, Senator Simon, in reference to the other gentleman's
testimony, mat said they had 30 days to pay back close to $70,000.
Our whole family was devastated. We could not believe it was
happening, but it was happening — not to just him, but to hundreds
of other miners.
Going back through the court system to prove again that he had
black lung started. This time, taking Dad to doctors, to B readers
of x-rays, and hospitals for breathing tests was much harder. He
was disabled in two ways. His black lung had worsened, and his
paralysis made it extremely difficult each time we would go to
Dad had to pay out large amounts of money each time to go to
court. If he had six x-rays, the coal company would have five or
maybe ten times more. \Vny? It is very simple. The coal companies
have more money to be able to pay out for readings. Since the law
states that there needs to be a preponderance of evidence, and the
coal companies can afford more evidence. Dad would always lose
his case. No matter how many readings he would have or how
much testimony from doctors who had checked him, the company
always had more.
My father's case is just one of thousands like it coming from the
coal fields. These miners would give their benefits up tomorrow if
they could go back to work. But being disabled, a miner wants
what is due nim.
A miner is used to hard work, but if his lungs are weak from
black lung, so weak that he cannot walk to the mailbox, as my fa-
ther is now, or cannot walk around the house without stopping to
get, as he calls it, a good breath, he is not able to work.
Through the Virginia Black Lung Association, I have seen first-
hand many miners who have black lung so bad that they must
have oxygen to breathe — such as the gentleman that I see here in
this room, in the audience — and they are denied because, by a pre-
ponderance of evidence from the coal company, they do not have
This is a terrible injustice that our country is doing to them.
We have knowledge of miners who have received letters of over-
payment to pay back, and it has been such a trauma to them that
they have committed suicide because it was too much for them to
handle. My father fought in World War II to protect our country
and the rights of its people, only to find out that big business con-
trols people's rights with money.
I ask you. Senators, to please consider this injustice that is being
done to the coal miner every day and change this law to be a fair
law to these people, who have worked so hard in the coal produc-
tion industry of our country. Please vote for S. 1781 to help restore
justice to our coal fields.
In closing, I would like to say to you that before leaving to come
on this trip, there was a group of older miners and their families
who gathered together in prayer. It was touching to me to see their
weakened and broken and disabled bodies, praj^ng that the Lord
would help explain to you, through me, what is wrong and that
what has been done to them is wrong, so that you could see that
they only want what is just and right for them.
Senators, their prayer is in your hands, and you can answer that
prayer for them.
Senator Simon. I thank you very, very much, Ms. Fraley, and
please extend our greetings to your father.
I am pleased to be joined by Senator Harris Wofford, who has
shown a real interest in this whole problem of black lung that coal
miners face. And I might add that Senator Wellstone has to be at
another meeting for a mark-up and otherwise would be here; he
has shown a real interest, also.
Senator Wofford. Are you at a point where you should turn to
me, or should we finish the statements?
Senator SiMON, If you wish to make an opening statement of any
kind now, you may; otherwise, we will hear from the rest of the
Senator Wofford. Let me make my opening statement aft;er
they finish. I do not want to interrupt them; they are who we are
here to hear.
Senator Simon. Mr. Dunford.
Mr. Dunford. My name is Calvin Dunford, for the record, and
I live at H.C. Box 48, Bandy, VA 24602.
I am a disabled coal miner with 35 years of underground coal
mining. In 1979, I was totally disabled from black lung. I was told
to sign up on black lung disability by Dr. Buddington; I have got
his name here. He was the first to tell me that I could not do my
regular coal mining work anymore.
I signed up, and in 3 months, I received black lung benefits. I
drew it for 4 years under the Labor Department. Then I got a let-
ter from the Labor Department saying that they would no longer
being paying me, that they had found my responsible operator.
They gave them 30 days to start paying me. Instead of paying,
they started sending me to more doctors. I went to about four or
five doctors. One of the doctors the company sent me to said that
my lungs were clear. And right immediately, I went on vacation,
and I passed out on the beach. Come to find out, I had lung cancer,
after just leaving the doctor.
When I went for surgery, the doctor told my wife that my lung
was full of black lung. They took out over one lobe of my right lung
because it was filled with black lung and cancer.
Then the company started sending my x-rays all over the State
of Virginia, and they got about 66 readings. Then, when we had the
hearing, the judge ruled in the compan/s favor, because they had
the most evidence, and I could not afford to get that many read-
ings. I just had five or six for myself
There is a stack of evidence they had against me. I had aimed
to bring them inside, but they are about two feet high, and I could
not carry them in here, so I left them out on the Bus. These are
my files from over the years that the company has accumulated
against me in order to beat me.
Then the Labor Department wanted back the so-called overpay-
ment of a little over $17,000. They wanted that back within 30
days, and would not accept a personal check. How do they expect
a man to pay back $17,000 within a month, when he had spent it
over a 4-year period to buy groceries with? It would be pretty hard
to come up with $17,000 overnight to send back to the Labor De-
partment, I would think — in my case, it would.
I appealed the decision to the Benefits Review Board and the
Fourth Circuit Court of Appeals. My claim was finally denied this
Senators, we need S. 1781 so it will, stop some of these medical
reports, which the working people really CEinnot afford, and it will
stop these overpayments that cause people to commit suicide.
There was a boy who lived by me who set his house on fire, and
he stayed in it until he burned himself up, because he owed the
Labor Department $25,000. And there was another guy who shot
himself, who belonged to our Virginia Black Lung Association, be-
cause he got an overpayment of $30,000. He shot himself and is
paralyzed on one side.
Another reason why we need S. 1781 is for our widows. If they
could get their black lung benefits which are due them, they could
get off welfare and food stamps. We have widows wno are due
black lung benefits and kids, orphans, who have to sign up on wel-
fare £ind food stamps to make a living, and they cannot get what
is rightfully theirs.
Senator SiMON. We thank you, Mr. Dunford.
Ms. Varney. Good morning, Senators and everyone. My name is
Jean Varney. I am proud to be here today to testify on behalf of
my late husband, Billy Varney, who was a coal miner for some 30
I am a member and volunteer with the Kentucky Black Lung As-
sociation in Pikeville, KY. Our president is Mrs. Susie Davis.
During my husband's life in the coal mines, I saw him come in
with his clothes literally frozen to his body from working out in the
extreme cold. He and another guy were closed up in the mines; we
thought they had no way out, and as we stood, praying, they knew
an escape route, and had belly-crawled out to safety.
My husband did not just decide to quit work. In 1980, the De-
partment of Labor had its mobile x-ray unit visit the mines he was
working in at the time. Some days later, we received a letter, tell-
ing him to get in touch with our family doctor, which we did, and
af^r tests and x-rays, we were told that he had black lung disease
and that he should not be around where there was as much as one
So our battle to survive began. It took us 2 years to recover his
compensation and Social Security. During this time, we had no in-
surance. We could not afford to buy the medication that he so badly
needed. In his compensation award, it stated that they would pay
for any medical bills that pertained to his lungs, that were caused
by his lungs. When I called and asked for this help, they told me
that they no longer honored that part of the compensation award.
My husband coughed continually, spitting up large amounts of
phlegm, mixed with black coal dust and sometimes blood. Wherever
he sat, wherever he was at, we had to keep a special lined con-
tainer for him to spit up in. He labored so hard to breathe that you
could hear him throughout the house.
I saw him on different occasions, as the gentleman here beside
me just testified, pass out. He broke his nose at one time; tore the
flesh from his face, from his arms, from his legs. More than once,
he passed out and did this. The sole cause of his sickness was his
lungs. He had nothing else wrong with him.
He had also filed for his black lung benefits at this time, but was
advised by his lawyer to put it on hold. In March of 1991, he was
diagnosed with lung cancer caused by black lung disease. It was al-
ready in the advanced stage.
They did surgery, removing the lefl lung, first four ribs and mus-
cle tissue from nis left arm. After surgery, the doctor came out and
told myself and the family that his lung was like a petrified rock;
that it was as black as coal. The cancer was already in his lymph
nodes. He went into the hospital a 210-pound man and came home
We turned our living room into a mini hospital, and our vigil
began. I slept on the couch for the remainder of his life, where I
could watch and take care of him. He was never the same man
after that. He went through periods of not knowing anyone, being
very confused, having seizures. It was so hard to accept the fact
that he had been handed a death sentence caused by the work he
had done most of his life to support his family.
Once again, we filed for black lung benefits. As days and months
passed, trips to the hospital, after sitting for hours, filling out pa-
pers, sending in information for our black lung claim, he was de-
nied, then denied again, which our lawyer appealed.
By this time, my husband had acceptea the fact that he was
dying, and we started to prepare as best we could for my future.
At the time of his illness, I was working and also owned my own
business. Since the time he became ill, I nad to quit my job to t^e
care of him; I was forced to sell my business to help pay our medi-
cal bills and buy medication for him.
He was totally bed-confined the latter part of his life. We got a
letter from the Department of Labor, aslung him to go to Lexing-
ton, KY for a black lung exam. There was no way; he had to have
help to get to the bathroom. Our doctor wrote the Department of
Labor and asked them to send us to a doctor who was closer by.
So they sent us to Birmingham, AL, at which time we did live in
One of my husband's death wishes was that he would get is
black lung award before he died. This letter came in April of 1992.
I will never forget him sitting up in his hospital bed there in the
living room, crying, because he was so thankful. He was so worried
about me once he had to leave; he thought I would receive that in-
come when he was gone. The letter stated he would receive no
funds because of the compensation offset, but told the amount I
would receive from the award as a widow. He was so happy his
prayers had been answered and his wish had come true.
llien he became worse. He started bleeding from his lungs. I had
to keep him suctioned out. He was now too weak to cough the coal
dust and blood up by himself As I did this, I stood and cried as
I watched the black coal dust come through the tubing into the ma-
It is so awful for our men to die such a horrible death — so unfair.
But to the system, they are only numbers on paper. But I want to
tell you people today that to us widows, their families, and their
orphaned children that they leave behind, they are our lives.
As time grew close for my husband, our friends, family, neigh-
bors and church stood by us, helping us to pay for the medication;
he was on straight morphine. On the morning of October the 10th,
1992, my husband expired. The cancer and black lung had claimed
his life. It is ironic that what was once our livelihood had now
caused him his life.
For me, my world had ended, but I was beginning to find out
what a cruel and hard world we live in. I applied for my widow's
black lung and was denied. I had an informal hearing and once
more was denied. Then one of the hardest things to understand
was that 8 months after my husband's death, the Department of
Labor sent me a letter statmg that the award for black lung that
they had sent in April for my husband was now null and void. He
haa been dead 8 months at this time.
I beg you, tell me, how can you take something away from our
dead? It plainly states on his death certificate that lung cancer
with the contributing cause of black lung disease was what killed
The doctor states that had he not had the black lung that caused
the cancer, he would have lived 7 more years. I feef that I have
been cheated by the black lung disease causing his premature
death and by the system by recalling his award that he had gotten
in April before he died, and by the compensation award that was
supposed to pay medical and hospital bills and buy his medication
that he needed so badly, which all pertained to his lungs.
My husband's illness caused by this disease cost us our life sav-
ings. Now I carry the burden of thousands of dollars in medical
bills to be paid out of my set income. But most of all, he paid the
ultimate price — ^his life— because of the black lung disease.
Please vote yes on the upcoming bill. Save other miners and
their families from living through this nightmare.
I thank you, Senators. I thank everyone here today for this op-
portunity, and I thank God for the opportunity of getting a chance
to speak out.
Senator Semon. And we thank you for speaking out, Ms. Vamey.
Mr. ZoRNES. My name is Lawrence Zomes. Afi^r working in the
mines in West Virginia for 16 years, I migrated to the Chicago
area, where I organized the Chicago Area Black Lung Association.
I suffer from black lung disease and received benefits 8 long
years afi^r filing my claim. My testimony today is based not only
on my experience as a disabled miner, but on my knowledge of
hundreds of other miners and widows.
I want to congratulate Senator Simon and the others who have
introduced S. 1781. It addresses many of the main problems we
have found in getting justice.
It is now your responsibility to make sure that black lung reform
passes this year, without further delay. Miners and widows have
been driven to their graves by the cruel mistreatment they have re-
ceived under this program, which is supposed to help them. So you
must not let another year go by without passing a reform bill.
It is my responsibility as one who has lived with the problem to
tell you that this shot we have at getting some justice has to be
on target. We have to make sure that the legislation will do the
things it is supposed to do and will not be twisted around. So I
want to make a few comments on the bill.
First, concerning Section 3. This is our chance to put an end to
the lopsided battle that the miner can never win because the coal
companies buy thousands of dollars worth of negative opinions and
x-ray readings. The intention is good. The weakness is that if you
look carefully at how the program works, the part of the section
that deals with examinations could create unnecessary confusion
and could be unfair to the miners.
The fact is that the real problem with the current program is too
many second opinions or "interpretative" opinions and x-ray re-
readings, much more than exams. The current rules limit the oper-
ator to one exam, and the current rules allow the DOL to order an
extra exam if it is needed to resolve a medical issue. But the cur-
rent rules place no limit on the "interpretative" opinions on x-ray
re-readings. So the bill should focus on the real problem. Therefore,
subsections (m)(l)(A) through (E) ought to be eliminated, except for
the paragraph that limits the number of x-ray readings.
Subsections (mX2), (3) and (4) go to the heart of the problem, and
they should stay. But subsection (4) should spell out that if the
miner's treating doctor is board-certified in internal medicine, then
the treating doctor's report should get more weight.
Also, subsection (4) should spell out that the miner can submit
his treating doctor's report plus one "interpretive" report, allowed
by subsection (2).
Concerning section 4, widows, plainly and simply, it is unjust to
say that a widow who can prove her husband was disabled by black
lung disease cannot get benefits unless she also proves that the
miner died of black lung. It needs to simply sav that if the miner
was drawing black lung benefits, or if the widow proves that he
was disabled by black lung, then the widow should be paid.
The way section 4 is now written really will not make things any
better, and for technical reasons, could make it worse for some peo-
Finally, concerning Section 6, attorney's fees, I agree that there
is now a problem that miners cannot get attorneys to represent
them. But I am also a little worried that if a lawyer is guaranteed
payment as soon as he wins an approval, even if the other wise ap-
peals, some lawyers may then take the money and drop the case.
That would leave the miner facing the coal operator lawyer on ap-
peal with no one to represent him.
We need to encourage good lawyers to represent claimants all the
way through, and we need to encourage coal companies to settle
cases without dragging every case through Federal court.
So you might want to add to this section that the operator should
have to pay fextra fees as a penalty for dragging out the appeals
process when the claimant winds up finally winning, again.
Thank you for introducing this bill. The current situation is caus-
ing great suffering. A bill must pass this year, and you must make
sure that it will work. While we appreciate your good intentions,
we have to have results this year.
I thank you very much.
[Additional material is retained in the committee files.]
Senator Simon. We thank you.
Let me call on my colleague, Senator Wofford.
Opening Statement of Senator Wofford
Senator Wofford. Thank you, Mr. Chairman, for calling this
committee hearing and taking the lead on this bill, the need for
which we just heard from these strong people. You have to get be-
yond the printed page and behind the statistics to the human di-
mension, the human faces, the personal voices. So it was very im-
portant for me to hear you, and I am sorry, Jackie Fraley, I missed
the first part of your remarks, jogging here from our Senate vote;
the chairman was a little faster than I was today.
This problem, for decades, has been with us. For decades, Penn-
sylvania's miners have provided the fuel that powered our fac-
tories, put electricity in our homes, and spread our prosperity. In
return for those decades of hard, dangerous work, many miners are
being mistreated by the very system that was created to help them,
as you have just pointed out so powerfully.
As if the physical pain that they have endured, that some of you
have endured, and people in this room who look so concerned and
have come here have endured, or their families have endured, as
if that pain were not enough to have suffered from black lung.
They have had this terrible hard time collecting the benefits they
deserve. They are often faced with these needless delays, so that
a minei^s claim so often becomes a widow's claim.
Last November, when you, Mr. Chairman, Senator Robb, Senator
Rockefeller and I introduced the Black Lung Benefits Restoration
Act, I went to the Senate floor to tell a Pennsylvania story, if I
could just add it briefly here today, of Armand Brunazzi, from
Jessup, PA, outside Scranton. He is a 78-year-old retired miner
who worked in the coal mines for over 40 years, starting when he
was 14 years old. In the 1960's, he began to experience the symp-
toms of black lung. Today he has serious respiratory problems. He
can only walk for half a block before he can hardly breathe. He is
troubled cHmbing stairs, coughs and wheezes frequently.
In 1979, he appHed for benefits through the Federal black lung
program that was set up to compensate just such miners. To this
day, Armand has not seen a single dime in benefits. Instead, he
has faced countless delays, hearings, re-hearings, and just plain in-
action. 1 • 1 .
So the time has long since come for change, and this legislation
that we are going to move forward out of this committee restricts
the number of medical opinions the Government or other defend-
ants can submit as evidence. It begins to level the playing field so
that miners and their dependents can get legal representation
early in the claims. The current system actually discourages law-
yers from taking miners' black lung cases while the defense has
legal representation from the beginning. That is unfair.
So I look forward to working with you, Mr. Chairman, and with
our colleagues on this committee to restore fairness to the black
lung system so that the Armand Brunazzis of this world and our
friends here today do not have to spend their retirement years bat-
tling for benefits they should have seen years ago.
Senator SiMON. I thank you. Senator Wofford.
Ms. Vamey mentioned her husband's breathing. When you are in
coal country, and you hear people breathing hard, wheezing, you
know that they have been coal miners. You mentioned somebody
walking half a block. When you are driving through a small com-
munity, and you see somebody stopped in the middle of the block,
not talking to anyone, just stopped temporarily, you know that per-
son is a coal miner who cannot make it to the next store or to the
end of the block.
Somebody referred to the gentleman in the audience with the ox-
ygen tank, and I do not mean to put you on the spot. You see a
lot of that in coal territory. I assume you have black lung, sir?
Mr. South. Yes, Senator.
Senator SiMON. And if I may ask, how many years did you work
in the mine?
Mr. South. My name is Mike South, from Fayetteville, NC, and
I worked for IIV2 years in the mines.
Senator Simon. If we cannot get something worked out, the alter-
native to black lung is, frankly, lung transplants. And for the coal
companies who are resisting legislation to change, lung transplants
are going to cost a heck of a lot more than black lung legislation,
which is fair, is going to cost.
Ms. Fraley, how long did your father work in the mines?
Ms. Fraley. He worked for 22 years. He was soon to retire, but
he had a mining accident and was unable to finish work.
Senator Simon. Mr. Dunford, how long did you work in the
Mr. Dunford. Thirty-5 years.
Senator SiMON. And Mrs. Vamey, how long did your husband
work in the mines?
Mrs. Vamey. Around 30 years.
Senator SiMON. And Mr. Zomes?
Mr. ZORNES. Sixteen years.
Senator Simon. Ms. Fraley, your father got this notice to pay
back $70,000. What happens to a family when they get that kind
of a notice?
Ms. Fraley. Well, like I said, at first, you just cannot believe it.
You do not believe that your Grovemment is doing this to you. You
look at the letterhead, you see where it has come from, and then
you start thinking, what am I going to do? Everything that I have
worked for all my life is going to go down the tubes.
I would like to say that I know my father worked hard for every
Eenny that he got, and to think that something that was really due
im and that he did receive — and as I stated oefore, trying to put
his children through school; thank God, thanks to him, I am able
to have a decent job teaching and educating young children, but if
he had not done that, I would not have been able to. And he gave
me that. It was just horrible, it was horrible.
I am sure it went through Dad's mind, well, would it be better
for me to end it all?
Senator Simon. But my experience is that most families just can-
not pay back those kinds of sums.
Ms. Fraley. There is no way, no; there was no way that he
could. You adjust your income to the amount of money that you
have. A miner makes fairly good wages, but it takes a lot of money,
and sending three children to college — ^there was no way; he did
not have the money. I heard him say 100 times, "I wish I did. I
could just go ahead and pay it back and not go through this agony."
Senator SiMON. And coal miners do not live in $250,000 homes,
in my experience.
Ms. Fraley. No, sir, they do not.
Senator Simon. So you are talking about devastating the lives of
these coal miners who have, as Senator WofFord said, given their
lives to see that we get the energy that we need in this country.
All of a sudden, they are being discarded like old kleenex.
Ms. Fraley. Right, and they are not well. If they have black
limg, their condition is bad to begin with, and then receiving this
only makes things medically that much worse for them, because it
puts a strain on their heart and everything else.
Senator Simon. Mr. Dunford, $17,000 — what do you do when
they send you a letter stating you have to pay back $17,000?
Mr, Dunford. That is a right smart little handful of money, es-
pecially to get it back within 30 days. I do not know if a man could
go out and borrow that much money and send it back within 30
Senator SiMON. But let us just say that you could borrow that
much money. Then you are going to nave to pay it back out of So-
cial Security. It sounds easy, borrowing, but it is not an easy thing
in your life. I do not mean to put you on the spot, but were you
able to pay back the $17,000?
Mr. Dunford. No, I could not have paid it, and furthermore,
what time I was drawing that, Social Security offset $247 a month
of this. You see, the State of Virginia has a law that you cannot
draw over 80 percent of what you were making when you were
working. And this here and Social Security put me over the top; so
really, Social Security owes this back where the offset me, and not
me. When it comes to a showdown, if I ever have to pay it back,
I am going to have to sue the Social Security board, because they
got $247 a month out of this. I got the black lung, and they got
the Social Security; that is iust the way they swapped out. And
that is the law in the State of Virginia.
Senator SiMON. Mrs. Vamey, I believe you were the one who
mentioned that your husband served in the service in World War
II. Is that correct?
Ms. Fraley. That was my father. Senator.
Mrs. Varney. My husband did serve in the army.
Senator SiMON, He did serve in the army. And my g^ess is that
your husband was very proud to be an American.
Mrs. Varney. Very, very proud.
Senator Simon. And you are very proud to be an American.
Mrs. Varney. Yes, sir, I am.
Senator Simon. But does it cause you to wonder whether our
Government is standing up for what is right when you see what
is happening there — not that you are going to be any less of a loyal
American, but when you see that there are some imperfections in
our Government that we ought to get straightened out?
Mrs. Varney. Yes, Senator, it causes me to wonder. They see
numbers on paper. They do not see these men as they come drag-
ging home, or torn all to pieces, or what-have-you. I have some pic-
tures here that your staff was nice enough to have blown up for
me. This photo shows my husband before; in a 2-year period, this
was my husband 2 days before he died. That just shows you what
black lung can do to you.
My husband was a strong man. He was never sick. His lungs
were the only problem.
Senator Simon. And having black lung — I do not mean to have
you revisit your husband's situation — but it is really almost chok-
ing to death, isn't it?
Mrs. Vajiney. Choking to death. I saw him literally pass out
while driving. And as you stated, these men are the ones who are
working this coal, getting it out for fuel or whatever the reason
may be, for everybody. And now, it is like you said a moment ago,
it is like they are a dirty old kleenex, and just get rid of them. We
need help. Widows need help. When you get to be our age, you just
do not walk out and get a job. It does not nappen like that.
Senator Simon. I am looking at these pictures — and I do not
know if everyone can see — ^but this shows your husband as a
strong, vigorous man
Mrs. Varney. Absolutely.
Senator Simon [continuing.! And there he is after suffering.
Mrs. Varney. Afler 17 months.
Senator Simon. Yes.
Mr. Zornes, you mentioned the lawyers' fees. The present system
benefits those who can afford the best lawyers, the most lawyers,
the most expensive lawyers, rather than benefiting people who
have worked in the coal mines. Is that an exaggeration, or is that
what is happening?
Mr. Zornes. That is what I really tried to spell out. They cannot
get good lawyers. And if a lawyer is guaranteed payment as soon
as he settles an appeal on a hearing, if the other side appeals that
case, that lawyer may take that money and drop that case. That
will leave that claimant without an attorney to represent him in
the appeal coming up.
Senator Simon. Let me interrupt you. What chance do you have
on that appeal if you do not have a lawyer to represent you?
Mr. Zornes. You do not have any at all, because the average
miner, like myself, I could not furnish one on my own that way.
Senator SiMON. The average coal miner cannot go before an ap-
peal and understand what is going on, cannot speak the com-
plicated language spoken in court, as well as the complicated medi-
cal terms involved in black lung.
Mr, ZORNES. That is right. Senator Simon, I would like to say to
you that I went to work as a young kid; I did not get any edu-
cation. And there is no way I could stand up in an appeal case and
focus and speaJc a black lung claim. I would have to have someone
to represent me.
Senator Simon. Thank you.
Senator Wofford. I was going to ask for some further evidence
on how difficult it is to get legal representation. Can you give us
any of your personal experiences on that? How hard is it to get
lawyers on your side?
Mr. DuNFORD. Where we are from, you cannot hire a lavvyer be-
cause the ratio is so low of not winning any cases. Now, back when
we were winning 27, 30 cases, you could get a lawyer, but a lawyer
would starve to death now fighting a black lung case.
And what I have never been able to understand is you cannot
take the money out of your pocket and hire a lawyer; it is against
the law, unless he wins the case. And yet you can go out here and
shoot somebody, and they will furnish you two lawyers to represent
you. But we can go down there in Richlands, where we are from,
hire an attorney, give him $1,000 to defend us, and tomorrow, we
will be in jail. Well, now, that is an awful shabby law.
I think any time a man has any money in his pocket and wants
to hire anybody, he ought to be able to hire them. That is his
money if he wants to spend it for a lawyer and then lose.
Senator Wofford. Mr. Zornes.
Mr. Zornes. I would like to say that in the Chicago area, in the
Chicago Ajrea Black Lung Association, which five of us organized,
we have been blessed to be able to find lawyers who are really in-
terested in poor people. If it had not been for that, I would have
been out in the cold.
Senator Wofford. It is good to hear that.
Ms. Fraley. I would like to say that in my father's case, which
I think is probably true with most of the cases in Virginia, anyway,
there are no private attorneys who will take these cases. My father
ended up, after going from one attorney to another and being
turned down, he finally went to Senator Rick Boucher and said, "I
have no one. I am supposed to be going to court, and there is no
one who will take my case." So there was no one.
Senator Wofford. Well, Mr. Chairman, I have pounded the
point that in this country, if you are charged with a crime, you
nave a right to a lawyer. It is fundamental that if you are sick, if
you have black lung disease, you have a right to a doctor and to
health care. But here we have a system of oenefits for victims of
black lung disease, and they do not have adequate representation.
As much as I hate to see the interminable process go into lawyers'
fees, we need a system in which you can be represented promptly.
One other question. Are there some further thoughts you may
have on this question of how many examinations should be under-
gone? Do you want to add anything to that? Does it seem like an
interminable process in some of the cases you have experienced?
Mr. DUNFORD. Not over two or three, I would not think, on each
side. And I do not think the company ought to be able to get more
than we can afford. You see, that is what they are doing; they are
dollaring us to death. They have spent from $25,000 to $30,000 to
beat us. Well, if they would pay us that, a lot of us will not live
long enough to draw it out — ^if they pay us what they are trying
to beat us with. You know, when a coal miner has worked 35 to
40 years, he will not draw out $30,000 on average; if h« does, he
lives longer than most of them.
I think if they get three, we should get three — they do not get
66, and we get five or six. Then, when you go to the hearing, you
know the company has more than you have, and they are likely to
rule in their favor. Well, that is not justice.
And they will pull an old judge out from Fort Lauderdale, FL up
to Abingdon, VA to hear a case, who maybe never was around a
coal mine in his life, and he will sit there about half asleep— one
fellow, they had to wake him up I do not know how many times;
he did not know what was going on until it was over.
Well, it seems to me like we could have judges — leave them in
retirement down in Florida and have judges here somewhere,
around the State of Virginia, who could try these cases.
Mr. ZoRNES. What hurts a lot of the miners is the operators can
get so many opinions, where the miner cannot get that many. So
they can override a medical exam. And that should be eliminated
because no way has a miner got enough money to keep stacking
them up just as fast as they stack them up; no way.
Senator Wofford. Mr. Chairman, I will refrain from further
questions now because you have another panel that is going to be
important in helping us crafl the legislation. The human dimension
has come through strongly and in a way that I will not forget. I
want to thank every member of this panel.
Mr. DuNFORD. We want to thank you very much, Senator.
Ms. Fraley. Thank you.
Mrs. Varney. Thank you.
Senator Simon. Well, I thank you. It is important, as one of you
said, that we not just look at this as pieces of paper and some ab-
stract issue. We are talking about people's lives here, and by stand-
ing up, you have helped to make that clear, and we thank you all
very, very much for being here.
Mr. ZoRNES. We thank you very much.
Ms. Fraley. Thank you.
Mrs. Varney. We thank you.
Mr. DuNFORD. Thank you.
Senator SiMON. Our next panel includes Allen Hess, the presi-
dent of the National Black Lung Association; Rich Trumka, the
president of United Mine Workers in America, and in my opinion,
one of the finest union leaders in this Nation; and Bruce Watzman,
vice president of safety, health, and human resources for the Na-
tional Coal Association.
Senator Wofford. And Mr. Trumka is a great Pennsylvanian as
Senator Simon. Unless you have a preference, I will just go down
the line and call first on Mr. Hess.
STATEMENTS OF AIXEN B. HESS, PRESIDENT, NATIONAL
BLACK LUNG ASSOCIATION, RICHLANDS, VA; RICHARD L.
TRUMKA, PRESIDENT, UNITED MINE WORKERS OF AMERICA,
WASHINGTON, DC; AND BRUCE WATZMAN, VICE PRESIDENT
OF SAFETY, HEALTH, AND HUMAN RESOURCES, NATIONAL
COAL ASSOCIATION, WASHINGTON, DC
Mr. Hess. It is an honor for me to be here today, and I would
like to thank both of you for being here.
My name is Allen Hess, and I am a third-generation coal miner.
I am president of the National Black Lung Association. I have
worked 27 V2 years underground in the coal mines. I have black
lung, but have been denied my black lung benefits.
I am here to speak not only for myself, but for the thousands of
coal miners and widows across the country who are being denied
the benefits due them.
We stand at a 4 to 6 percent approval rate for black lung bene-
fits. People who get benefits get them more by a stroke of luck than
by application of the standards. It is not a function of how sick you
are, but whom you are up against at a hearing. One of the main
reasons for this is the piling on of evidence against the coal miner
by the coal operator responsible for paying the benefits.
Instead of putting food on the table, our people are borrowing up
to $1,800 for a single black lung physical, and still, that is not
enough. When a miner submits the results of a physical, the re-
sponsible operator sends his reports all over the country for outside
evaluation. For every medical evaluation that a miner submits as
evidence, the responsible operator will submit three or four outside
evaluations and depositions of his doctor to try to discredit his
For every x-ray reading that a miner submits as evidence the
coal operator will submit 10 readings. They will spent up to
$30,000 to defend a single claim. Our people do not have access to
that kind of evidence. The law judge goes with the side that has
the most evidence. A coal miner is up against such powerful opposi-
tion it is like David against Goliath without a sling.
The coal companies are estimating that the total cost of this law
over 20 years is $10 billion more than under the present law. If we
grant them the worst case scenario, which assumes a 45 percent
approval rate under S. 1781, the cost to the industry would be
about 50 cents more on a ton of coal over the next 20 years.
The Department of Labor estimates that S. 1781 would increase
the approval rate only about 15 percent. If we take this estimate,
the cost to the industry would be cut to about 17 cents a ton over
the next 20 years.
S. 1781 is a very modest reform. It does not restore any of the
presumptions of eligibility which caused the generous approval rate
prior to 1981. It is a drastic reduction from the proposed amend-
ments to the law which the National Black Lung Association for-
mulated in the last session of Congress.
We are not asking for the law to be all in our favor. We are only
asking for a 50-50 chance to prove that we qualify for benefits. Re-
member, to even get his foot in the door at a hearing, a miner must
have at least 10 years of exposure to coal dust.
Despite all clfiims of the industry and previous administrations
that the mines are clean, there is no adequate proof that this is the
case. I started working in the mines in 1959. Until 1964, we were
taught that coal dust does not hurt you; you were supposed to spit
it up. We did not get a law until 1969 that reauired dust sampling.
Since 1969, the people are still working in the same dusty expo-
We have known all along that the dust sampling was fraudulent,
because if you got a bad sample, you would be put into a cleaner
part of the mine until you came up with a clean sample. The com-
panies who have pled guilty to dust sampling fraud are only prov-
ing what we already knew. Just about everyone who has worked
in the mines for 10 years or more has black lung.
One of the worst things that is happening to our people is the
collection of overpayments. People who get a Tetter saying that thev
owe $30,000, $40,000, $50,000 to the Government are devastated.
Some have tried to commit suicide, as you have just heard. It is
not fair to come back to a person who has been getting benefits be-
cause he is too sick to earn a living and ask him to pay back such
a huge sum of money. Where is he supposed to get it?
The ones who are in the most pitiful position are the Avidows. Al-
most no widows are being approved for benefits at this time. These
women are devastated by the loss of a loved one and yet have to
try to get by on almost no income at all. They cannot qualify for
benefits because the current law says that thev have to prove that
black lung was the cause of death. This is almost impossible for
them to prove because their husbands usually die of complications
caused by black lung. S. 1781 would let widows qualify for benefits
if the miner was receiving benefits before he died, or if he was to-
tally disabled by black lung before he died. Our widows desperately
need this legislation.
What makes matters worse for all of us is that we cannot even
pay an attorney to represent us in our claims. We are up against
the best-paid law firms for the company plus the solicitors for the
Department of Labor. We have to go into a hearing without anyone
to represent us because the law says that our attorneys cannot be
paid unless they win. With a 4 percent approval rate, they cannot
afford to take our cases. Even a criminal can get an attorney, but
a coal miner is left out.
Senators, this is an issue of simple justice. The miners afflicted
with black lung worked for years in the dusty and dangerous mines
of this Nation. They sacrificed their health for the company and for
the energy needed for all of us. When their lungs got bad, they had
to quit work, unable to provide adequately for themselves and their
families. They are entitled to fair compensation. That is all we ask.
Thank you very much.
Senator Simon. We thank you.
Mr. Trumka. Thank you, Mr. Chairman.
My name is Rich Trumka, and I am president of United Mine
Workers. I am also a third-generation coal miner. In addition to
that, I am the son of a black lung victim; I am the grandson of two
black lung victims; I am the nepnew of six black lung victims and
the cousin of at least two more black lung victims.
I appreciate the opportunity to present the views of the United
Mine Workers on the Black Lung Benefits Restoration Act. This
bill would restore an important measure of equity and fairness to
a program which is badly — and I emphasize the word "badly" — in
need of repair.
When Cfongress enacted the Federal Coal Mine Health and Safe-
ty Act in 1969, it made a historic commitment to eradicate
pneumoconiosis, commonly known as black lung, and to com-
pensate its victims and their families. Black lung Kills, but before
it kills, it tortures, robbing its victims of the ability to do even the
simplest tasks, like taking a shower or getting dressed in the morn-
ing, without gasping for breath. There is no cure for black lung —
only prevention and fair compensation for its victims.
Mr. Chairman, you spoke about what it is like to have black
lung, and both of you are from the coal fields and understand that.
For anyone who is not, I can give them a graphic demonstration
of what it feels like to have black lung disease. Put a piece of tape
across your mouth, tape one of your nostrils closed, and then run
up and down a flight of steps 10 to 15 times. Then try to catch your
breath through that one open nostril. That is how a victim of black
lung breathes every minute of every day.
Twenty-5 years have lapsed since the Act was passed. During
this time, our Grovernment's commitment to compensate those who
have experienced black lung disease has steadily decayed. During
the Reagan and Bush Presidencies, claims by black lung victims
became almost impossible to win, and many who thought they won
discovered that they had lost on appeal and would be required to
return tens of thousands of dollars that they had already received
and spent on normal living expenses.
At the present time, with initial approval rates for black lung
claims at 4 percent, the black lung progpram is in a crisis. And on
top of the physical torment of the disease itself, men and women
who have spent their lives in the mines face another indignity. It
is the battle they and people like Jackie Fraley^s dad, and Calvin
Dunford, and Jean Varney and her husband Billy, and Lawrence
Zomes must wage against bureaucratic indifference and the unre-
lenting efforts of wealthy and powerful employers, who spare little
or no expense fighting black lung claims.
Too many elderly claimants are condemned to poverty and suffer-
ing, and for some, retirement comes with the added indignity of
being hounded by collection agencies who threaten to take the few
possessions they have managed to retain in old age and in declin-
Mr. Chairman, on behalf of the thousands of retired miners, wid-
ows and dependents who face these problems, I applaud your ef-
forts to reaffirm our Nation's commitment to compensate the vic-
tims of black lung.
The Black Lung Benefits Restoration Act represents a large bea-
con of hope for thousands of claimants who have been beaten down
by a system where poor and elderly claimants must ^o up against
legions of corporate attorneys in order to win their right to retire,
if not with their health, at least with their dignitv.
Before I comment on specific portions of this bill, I want to em-
phasize that black lung is not — is not — simply the nistoric byprod-
uct of an earlier era when dust levels in the mine were uncon-
trolled. Miners continue as we speak to develop chronic occupa-
tional lung disease from breathing dust, and miners exposed at the
current exposure limit of 2 milligrams per cubic meter continue
today to lose lung function.
As a Nation, we have not vet achieved either of the goals estab-
lished in the 1969 Act. We have not yet eradicated the causes of
black lung, and we have not guaranteed fair compensation to those
who suffer from it.
Now I would like to briefly comment on the major components
of S. 1781. Perhaps the most shameful of the prior administration's
practices was the effort to require miners or their surviving de-
pendents to repay benefits, many times tens of thousands of dol-
lars, that thev had received while their claim was being appealed.
S. 1781 would put an end to this obscene practice.
Under the proposal, if interim claims are subsequently denied,
recipients would not have to repay the money they have already re-
ceived. We strongly support this provision and hope it will be ap-
proved by the committee.
There is ample testimony concerning the level of disagreement
that persists in the medical community concerning the causes and
appearance of chronic lung disease among retired coal miners, and
it is no secret that parties opposed to the miner's claim, either coal
mine operators or tne trust fund, have significant resources to de-
feat the miner's case. Hearing officers and administrative law
judges whose role it is to weigh the evidence often defer to evidence
offered by the miner's opponents, in part because there is simply
more of it. You have heard about the 2-foot stack of x-rays that
were presented against our members.
For these reasons, we support reasonable limits on the amount
of evidence that can be submitted by the opponent to a claim. This
bill limits the number of medical examinations and chest x-rays
that the miner's opponents may require to the number conducted
and submitted by the miner — so that if a miner could afford five,
they could submit five.
These changes will help transform the program from one which
subsidizes the production of medical opinions to one that com-
pensates victims suffering from the disease.
S. 1781 also addresses the almost insurmountable difficulties
faced by widows and dependents of black lung victims seeking sur-
vival benefits. Processing claims takes many years — many years —
and black lung kills. And as you have heard here today, it is not
uncommon for a miner to die before a final decision is made on his
or her claim.
Currently, the law requires proof that pneumoconiosis was the
cause of death. But proving that black lung was the cause of death
is extremely difficult, and consequently, many claims have been de-
nied. We tnerefore support the provision in S. 1781 that would
grant survivor benefits if the miner was either receiving interim
benefits or was totally disabled due to black lung, unless the death
was the result of an event that had no medical connection to black
In addition, we support provisions in the bill to provide attor-
neys' fees, which have become necessary because of the scarcity of
attorneys willing to take on black lung cases. Few people are will-
ing to take on a case that will take 7 to 10 years to complete for
a 4 percent chemce of winning. Given the low approval rate and the
length of time it takes to process the claims, guaranteeing timely
compensation to black lung attorneys has become a necessary ele-
ment of guaranteeing fairness to victims of black lung.
And finally, we support the bill including a provision that would
provide a de novo review of claims denied after January 12, 1982.
This will provide a long overdue opportunity for miners and their
survivors to have their claims evaluated as Congress had originally
In closing, Mr. Chairman, I wish to commend you; I wish to com-
mend you tremendously for moving this issue through to its
present stage, for your commitment over the years to black lung
victims and their families, and for seeing this bill move to its
present State. Hopefully, it will be passed by the Senate, and the
President will sign it into law and guarantee those victims what
they were originally promised in 1969 — fair compensation for a dis-
abling, hideous disease that has no cure.
Thank you, Mr. Chairman.
Senator Simon. We thank you, Mr. Trumka, for your testimony
and your leadership.
[The prepared statement of Mr. Trumka follows:]
Prepared Statement of Richard L. Trumka
Mr. Chairman and members of the subcommittee, I appreciate the opportunity to
present the views of the United Mine Woriiers on the Black Lung Benefits Restora-
tion Act. This bill would restore an important measure of equity and fairness to a
program which is badly in need of repair.
When the Congress passed the Federal Coal Mine Health and Safety Act in 1969,
it made a historic commitment to eradicate pneumoconiosis, commonly known as
black lung disease, and to compensate its victims and their families. Black lung
kills. But before it kills, it tortures, robbing its victims of the ability to do the sim-
plest tasks, such as taking a shower and getting dressed, without becoming short
of breath. There is no cure for black lung; it must be prevented. And its victims
must be compensated.
Twenty five years have lapsed since this Act was passed. During this time, our
Government's commitment to compensate those who have experienced black lung
has steadily deteriorated. During the Reagan and Bush presidencies, claims became
almost impossible to win and many who thought they had won, would later lose on
appeal and be required to return tens of thousands of dollars they had already re-
ceived. J 1- J ^
At the present time, with initial approval rates for claims having declmed to 4
percent, tne Black Lung program is in a crisis. On top of the physical torment of
the disease itself, men and women who have spent their lives in the mines face an-
other battle. It is a battle against bureaucratic indifference and the unrelenting ef-
forts of wealthy and powerful employers who spare little expense to denv benefits.
Too many elderly claimants are condemned to poverty and suffering, and for some,
retirement comes with the added indignity of being hounded by collection agencies
who threaten to take the few possessions they have retained in old age and declin-
ing health. j j j
Mr. Chairman, on behalf of the thousands of retired miners, widows and depend-
ents who have faced these problems, I applaud your efforts to reeifiirm our nation's
commitment to compensate the victims of black lung. The Black Lung Benefits Res-
toration Act represents a light at the end of the tunnel for thousands of claimants
who have been beaten down by a system where poor and elderly claimants must
go against legions of company lawyers in order to win their right to retire, if not
with their health, at least with their dignity.
Before I comment on specific portions of this bill, I want to emphasize that black
lung is not simply the historical byproduct of an earlier era, when dust levels in
the mines were uncontrolled. Recent studies have confirmed what many have sus-
Sected. Miners continue to develop chronic occupational lung disease from breathing
ust. The signs of disease are evident in more ways than can be seen on a chest
x-ray film. Chronic bronchitis and emphysema are caused by breathing dust. And
miners exposed at the current exposure limit of 2.0 milligrams per cubic meter con-
tinue to lose lung function. . ,,. 1 J ..L ,~J„
As a nation, we have not yet achieved either of the goals established m the lyba
Act: We have not yet eradicated the causes of black lung and we have not guaran-
teed fair compensation to those who suffer from it. There is a continuing need not
only to provicte compensation for miners with black lung but also to do more to pre-
vent black lung by reducing, exposure to respirable dust.
Now I woulalike to comment on the major components of S. 1781.
Periiaps the most shamelul of the prior administrations' practices was the effort
to require miners or their surviving dependents to repay benefits they had received
while their claim was being appealed. We have heard testimony of elderly recipi-
ents, many of them widows of miners who died of black lung, who were contacted
by the Department of Labor, many years after a claim had been approved, and re-
quested to repay the benefits, often within thirtv days. This often involved large
sums of money— up to $60,000 in some cases— and caused significant strains on peo-
ple trying to live on fixed incomes. On at least one occasion, a recipient committed
suicide rather than face poverty for the remainder of his life.
S. 1781 would put an end to this obscene practice. If interim claims are subse-
quently denied, recipients would not have to repay the money they had already re-
ceived. We strongly support this provision and hope that it will be approved by the
AMOUNT OF EVIDENCE TO DETERMINE BENEFIT ELIGIBILITY
There is ample testimony concerning the level of disagreement that persists in the
medical community concerning not only the interpretation of chest x-ray films but
also the causes and appearance of chronic lung disease. It is no secret that parties
opposed to the miner's claim — either coal mine operators or the Trust Fund— -have
significant resources to defeat the miner's case. Because of this, it is not uncommon
for claimants to face company attorneys armed with several expert opinions gath-
ered to refute evidence of the disease initially diagnosed by the claimant's own phy-
sician. Hearing officers and Administrative Law Judges, whose role it is to wei^
the evidence, often defer to the evidence offered by the miner's opponent in part be-
cause there is more of it.
Most claimants can afford only one or two chest x-rays with appropriate readmgs.
Companies have more — many more — resources to find contrary opinions from doc-
tors with better resumes than the claimant's doctor.
In many cases, the claimant's physician has known, examined, and treated the
miner for many years and has seen his condition deteriorate with his own eyes.
Though the miner's own physician may not have fancy credentials, he or she knows
something more important: the miner himself.
Not only is the volume of medical evidence a problem, requiring miners to submit
to numerous examinations is burdensome and demoralizing.
For these reasons, we support limiting the amount of medical evidence that can
be submitted by the opponent to a claim. This bill limits the number of medical ex-
aminations and chest x-rays that the miner's opponent may require to the number
conducted and submitted by the miner. And neither the miner nor the other side
may submit more than one medical opinion based on a review of the miner's medical
records. Finally, if the miner's own physician is board certified in a relevant spe-
cialty, his or her opinion is to be given substantial weidit over that of other physi-
cians, liiese changes will help transform the program from one that subsidizes the
production of mecfical opinions to one that compensates victims suffering from the
disease. Tliese are among the most important and necessary improvements con-
tained in the legislation.
Processing claims can take many years. And black lung kills. Therefore, it is not
uncommon for a miner to die before a final decision is made on his or her claim.
In the absence of a final decision, survivors can be left not only without a spouse
or parent, but also without any benefits. The one way that survivors can receive an
award under the present program is if they can demonstrate that the cause of death
wa8 black lung. Proving that black lung was the cause of death is extremely difficult
and consequently, many claims have been denied.
This bill is an improvement. If a survivor files a claim for benefits and the miner
was either receiving interim benefits or was totally disabled due to black lung, the
miner's death would be presumed to be from black lung — unless the death was the
result of an event that had no medical connection with black lung. This puts the
burden of proof on the opponent to show that the cause of death was not due to
black lung. We support this change.
Another problem claimants face is finding an attorney to prepare a claim. Several
factors deny claimants adequate representation. Since it is so difficult to win a
claim, and since attorney's fees are paid only if a the claimant wins, there is little
incentive for attorneys even to take up claims. Payment is late and unlikely. Fur-
thermore, attorney's fees come out of the claimant's award, denying him or her the
full amount. This is a system stacked against the claimants.
This bill provides a partial solution to the problem. Under this bill, attorney fees
are still contingent on winning a claim but they are to be paid either by the Respon-
sible Operator or by the Trust Fund; they do not come out of the claimant s award.
Finally, the bill makes it possible for claims filed and closed since 1982 to be re-
opened, de novo, as if they were new claims. This is an important and long over-
due opportunity for miners and their survivors to have their claims evaluated as
Congress had originally intended, without having to combat the disabling volume
of medical evidence ofTered by company attorneys.
In closing, I wish to commend the Chairman of the subcommittee for moving this
issue through to its present stage. We look forward to seeing this bill passed by the
Senate and sent to the President for his signature.
Senator Simon. Mr. Watzman.
Mr. Watzman. Thank you, Mr. Chairman.
I am Bruce Watzman, vice president of the National Coal Asso-
ciation. On behalf of our producer and affiliated members, I am
pleased to be here today. I nave submitted a lengthy written state-
ment which I would ask be made a part of the record and I will
merely summarize it.
Senator SiMON. It will be made a part of the record.
Mr. Watzman. Mr. Chairman, we recognize that some discrete
modification to the black lung program is warranted. Regrettably,
the bill pending before this committee does not achieve such re-
form. Rather, we believe it represents a wholesale attempt to re-
peal the amendments which labor, management, and the adminis-
tration brought to the Congress in 1981, which was ultimately
passed and signed into law.
Since passage of the black lung program, the coal industry has
attempted to eliminate the occurrence of CWP. On an industry-
wide basis, based on samples taken by mine safety and health in-
spectors, we continue to achieve consistent compliance with the
statutorily mandated dust levels. These standards, established
using the best available medical evidence, are designed to prevent
the occurrence of CWP.
We believe it is extremely unlikely that individuals whose prm-
cipal mining employment has been since 1970 will contract
pneumoconiosis. In met, it should be assumed that the approval
rate should continue to decline over time.
Second, we have supported an equitable compensation program
for the generations of miners and their dependents who are af-
flicted by this disease. These actions notwithstanding, we continue
to seek new systems and devices to reduce respirable coal mine
dust generation and exposure in the mines. Today, more than one-
quarter million miners and their beneficiaries receive monthly ben-
efits and medical care, at a cost of approximately $1.5 billion annu-
ally. They are a powerftil testament to Congress' decision 35 years
ago to compensate those suffering from CWP.
We believe that no change to existing law is necessary to ensure
that legitimate claimants receive benefits. To date, in excess of $30
billion has been spent collectively by SSA, by mine operators
through the assignment of claims directly to them, and through the
payment of the coal excise tax which funds the Black Lung Trust
Fund. ^ ^
Some have alleged that legislation is necessary to secure a higher
approval rate. In my statement is a chart from the Department of
Labor OWCP Annual Report to Congress for fiscal year 1992. The
chart indicates that for the 19-vear period 1973 to 1992, approxi-
mately one out of every two claims filed, 47.9 percent, were ap-
E roved for benefits. Simply put, those suffering from CWP receive
We submit that the existing program has become a powerful tool
for entitlement. S. 1781 only enlarges and perpetuates that entitle-
Mr. Chairman, we have several concerns with the pending legis-
lation which are critiqued in detail in our written submission. In
the interest of time, I will focus on only two of the sections.
Section 3 would limit the submission of evidence by a party ad-
verse to the claimant to only that amount of evidence submitted by
the claimant. It fdrther limits the contesting of the central medical
question by restricting the submission of more than one piece of
evidence during rebuttal, and places increased and unwarranted
significance on the opinion of claimant's treating physicians. This
section raises serious concerns in our minds as to whether the Con-
gress can limit a party's rights in a judicial proceeding. It creates
an evidentiary balance which, under present legal interpretation
known as the "true doubt principle," would culminate in the ap-
proval of thousands of claims.
A second section. Section 8, would permit the refiling of all
claims denied since 1982. This would occur even though — and I
stress even though — under present law, a claimant can have his
claims reconsidered upon the showing or a change of condition. Let
me emphasize this point. There was nothing under the current law
to prevent these individuals from having their claims reviewed
again if their condition changes.
In 1978, 60,000 claims which had been previously denied were
reversed following enactment of the 1977 Amendments. This can-
not and must not oe permitted to occur again.
Mr. Chairman, we are not unsympathetic to the claimants' com-
plaints over the administration operation of the program. No one
should be deprived of legal representation, nor should it take years
to have a claim finally adjudicated. We must, however, strenuously
object to provisions which limit our ability to defend against claims
and the unfettered refiling of tens of thousands of claims.
This bill neither addresses the real problems nor assures poten-
tial claimants that the program will operate in an expeditious and
fair manner. We stand ready to work with you to address the real
fjroblems confronting claimants, but we do not believe the current
e^slation will accomplish that.
[The prepared statement of Mr. Watzman follows:]
Prepared Statement of Bruce Watzman
Mr. Chairman, membere of the subcommittee, I am Bruce Watzman, Vice Presi-
dent, Safety, Health ad Human Resources for the National Coal Association. On be-
half of our producer and affiliated members who produce almost 80 percent of our
nation's coal production — I am pleased to be here today. The National Coal Associa-
tion recognizes that some modest reform of the existmg Black Lung Benefits Pro-
gram is narrated. Regrettably, the bill before the Committee, S. 1781, does not rep-
resent reform. Itperpetuates existing problems in the program ad reverses improve-
ments made by Congress a decade ago.
The Black Lung Program was enacted as Title IV of the Coal Mine Health and
Safety Act of 1969. Since passage of this wise and humane law, the American coal
industry has pursued two objectives. First, we have attempted to eliminate the oc-
currence of coal woriiers pneumoconiosis, better known as black lung, among our na-
tion's miners. Second, we have supported an equitable and generous compensation
program for the generations of miners, and their dependents, who are afflicted with
this occupational disease.
The coal industry has virtually eliminated pneumoconiosis by reducing particulate
concentration in tne nation's coal mines. Since 1972, statutorily mandated con-
centrations of 2 milligrams of particulate per cubic meter have been in place. This
standard, established using the best available medical evidence, is designed to pre-
vent the occurrence of pneumoconiosis. For miners who have spent most of their
working lives at this exposure level, the incidence of pneumoconiosis should be mini-
mal at worst.
Nevertheless, the coal industry ad equipment manufacturers that supply it are
seeking new systems ad devices to reduce particulate exposure. America coal compa-
nies continue to explore ways to make their mines safer and healthier environments
for their employees.
Our industry is committed to the proposition that miners who demonstrate the
symptoms of pneumoconiosis are entitlea to benefits. Today, more than one-quarter
million miners and beneficiaries receive monthly benefits and medical care. They
are a powerftil testament to Congress' decision 35 years ago to compensate those
who suffered from this disease. No change in existing law is necessary to insure that
legitimate claimants receive black lune benefits.
We respectfully submit, however, that the existing program has also become a
powerful instrument for entitlement. The bill before this Committee only enlarges
and perpetuates this entitlement. S. 1781 breaks a critical and fundamental link in
the existing law: the link between disability established by medical evidence and the
award of benefits.
This link is the only basis for charging coal companies with the sole responsibility
for benefit payments. If Congress wishes to sever the link ad pay benefits for rea-
sons totally unrelated to coal mining, this is the decision which Congress is entitled
to make. However, the coal industry should not be chsu-ged with paying for benefits
engendered by causes which cannot be related to the mining of coal.
Our reasons for opposing these measures are set out below. However, I believe
it is worthwhile to reviewl)riefly the program's transformation since its inception
in 1969 in terms of beneficiary ehgibility ad attendant cost.
overview of the black lung act and reform amendments
The federal black lung program was initiated in 1969 as Title IV of the Coal Mine
Hedth ad Safety Act. It was designed to provide benefits to miners totally disabled
due to pneumoconiosis arising out of coal mine employment and to survivors of min-
ers whose death was a result of the disease.
Medically, pneumoconiosis is divided into two categories: simple ad complicated,
neither of which was statutorily defined. Complicated pneumoconiosis, the advanced
stage of the disease, involves substantial fibrotic reaction of the lungs to dust depws-
its, leading to marked pulmonary impairment and disability in later years. Simple
pneumoconiosis is not considered disabling ad seldom results in significant res-
jjiratory impairment. On this later point, a report submitted to Congress in 1986,
Current Medical Methods in Diacniosing Coal Workers' Pneumoconiosis, and a Re-
view of the Medical and Legal Definitions of Related Impairment and Disability
stated "prevailing medical opinion holds that simple CWP dbes not cause significant
Title rV, as amended, is divided into two parts, Part B ad Part C. Part B deals
with claims filed on or before December 31, 1973. Part B claims, which are a closed
universe of claims, are administered by the Social Security Administration (SSA).
Part C deals with claims filed after 1973. Coal producers are responsible for the
payment of benefits to eligible claimants under Part C in two direct ways: (1) as
individual coal mine operator defendants (responsible operators) and (2) as manda-
tory payers of a production teuc into the Black Lung Disability Trust Fund. Revenues
from the Fund are used to pay compensation to eligible claimants whose coal mine
employment ended before 1970 or where a individually responsible operator cannot
be identified. The Department of Labor (DOL) was chosen to administer Part C
claims ad to process ad defend claims against the Fund.
The black lung program's history over the last 20 years is one of disagreement
over what Congress intended as the program's actual purpose ad how the program
should be administered. Congress has repeatedly amended the law, changed stand-
ards, reopened claims for examination, changed administrative agencies, and fos-
tered constant rewriting of regulations. Circuit court interpretations have varied
widely on the use of various presumptions favoring entitlement and the rirfit of de-
fendants to introduce medical evidence or to generally defend against black lung
Three times in the last 12 years, the Supreme Court of the United States has had
to address this confusion and disagreement. The Supreme Court, for example, has
pointed out that "if a miner is not actually suffering from the type of ailment with
which the Congress was concerned, there is no justification for presuming that the
miner is entitled to benefits." MuUins Coal Co.. Inc. of Virginia v. Director. OWCP,
484 U.S. 135, 158-159 (1987).
This may seem obvious. However, some federal appellate courts have repeatedly
held, in certain cases, that benefits can be awarded to a miner who is not totally
disabled due to pneumoconiosis or does not even have the disease.
Congressional policy shifts and inconsistent judicial interpretation have resulted
in varying approval rates over the history of the program. In the early years of the
program, SSA approved approximately 50 percent of the 357,000 miner and survivor
claims filed. However, a backlog of pending and denied claims created pressure to
amend the statute in 1972 — the first of two major liberalizations of the program.
In 1972, Congress greatly expanded the eligibility criteria by adding a new pre-
sumption of eligibility based on coal mining exposure of 15 years or more, by extend-
ing eligibility for benefits to survivors of miners who died from causes other than
pneumoconiosis, by ordering reconsideration of all denied claims, and by making
several additional changes. Of particular concern was the addition of the 15-year
presumption. It was adopted in spite of testimony presented by the National Acad-
emy of Sciences that stated, "At best, it takes 10 to 15 years of underground mining
for coal miners even to begin to develop coal workers' pneumoconiosis." The result
of these amendments was that by 1974 some 470,000 miners, widows and depend-
ents received monthly compensation, at a cost of $1 billion per year. Present esti-
mates of benefits provided under tlus part of the program, administered by SSA,
is a cumulative $20.8 biUion through fiscal year 1993.
In 1974 the DOL-administered program began. Under it, DOL assigned payment
responsibility to individual coal operators where they could be identified. Those
claims for whom a responsible operator could not be identified were still paid from
general revenue. Unlike SSA, however, DOL in administering claims developed evi-
dence addressing the medical basis for entitlement. By 1977, the DOL had received
more than 128,000 claims and processed about half, with approximately 5,000 ap-
proved. This approval rate of approximately eight percent was considered to be un-
acceptable by certain members of the Congress and gave rise to the second major
liberalization of the program.
Congress, in 1977, aniended the Act again expanding the eUgibility requirements.
Among the changes were several new presumptions designeato ensure increased
claims approval. The Department of Labor and Social Security Administration were
directed to re-examine all claims which had been denied prior to March 1, 1978 and
language was added to limit the government's ability to re-read x-rays. This last
point is of particulsu* interest since the x-ray is regarded as the best evidentiary tool
for diagnosing pneumoconiosis. Additionally, the amendments eliminated the dead-
line onPart C nlings thereby making the program permanent.
Lastly, the 1977 amendments incorporated the Black Lung Revenue Act of 1977
which created the Black Lung Disability Trust Fund. It is this Fund, currently $3.95
billion in debt, which the proponents of the legislation pending before this Commit-
tee look toward to provide the resources to pay what undoubtedly will be a large
group of new black lung recipients for whom tnere is no responsible operator.
The 1977 amendments had a dramatic effect on the DOL and SSA approval rate.
The SSA allowed an additional 23,178 claims, bringing the final tally under the
1969, 1972 and 1977 legislation to an 81 percent approval rate. A July 1980 General
Accounting Office report based on a random study of SSA approvals concluded that
"in 88.5 percent of the cases, medical evidence was not adequate to establish disabil-
ity or death from black lung."
The DOL approval figure shot up from 5,000 to 60,000 within two years after en-
actment of the 1977 amendments. Today, approximately 100,000 miners, survivors
or dependents receive either compensation and/or medical benefits from the Fund.
This figure does not account for those receiving benefits from SSA (approximately
150,000) or directly from responsible operators (approximately 16,000). The cumu-
lative cost of benefits from these three sources exceeds $1.5 billion annually.
In 1981 the Administration, labor, and management brought to the Congress a
compromise set of amendments to the Act to stabilize the program and steer the
Fund toward a course of financial stability. Of great import, the amendments elimi-
nated three of the five presumptions contained in the law, removed the bar of the
rereading of x-rays in the file, limited survivor benefits to only those cases where
the deatin was the result of pneumoconiosis and not from a unrelated cause, re-
quired a social security earning offset applied to Part C claims and increased the
coal excise tax by— amount sufficient to restore the Black Lung Trust Fund to sol-
This general background puts into perspective the history of the prom-am from
one which provided benefits to the maximum number of claimants possible, albeit
paid by funds from SSA and general revenue, to a program funded by the industry
in which benefits are increasmgly paid only to those medically eligible. From the
beginning. Congress intended payment of claims to be based on all relevant medical
Unfortunately, this was not always the case as the Supreme Court noted in its
review of the program: , . . j
Aft«r the SSA adopted its interim presumption, its claims approval rate mcreased,
in part due, it is thought, to factfinders failmg to consider all of the employers rel-
evant medical evidence. To assure that this problem would not infect adjudications
under the new Labor interim presumption, the requirement of 30 U.S.C. Sec. 932(b)
that all relevant medical evidence be considered in adjudicating SSA claims was ex-
pUcitly carried over into the Labor presumption's rebuttal section.
Mullins Coal Co.. Inc. of Virginia v. Director. OWCP, 484 U.S. at 149-50 (1987)
("Mullins "). Since enactment of the 1981 reform amendments, the Part C perma-
nent program has been one based on medically accepted diagnostic testing ad eval-
uation We believe S. 1781 would again result in the channeling of benefits to indi-
viduals (or their survivors) with limited or no discernible disability.
Some have indicated a need to amend the Act to achieve a higher approval rate.
The chart below, which covers the period from 1973-1992, indicates that 47.9 per-
cent of the claims filed were approved. What oft^n gets overlooked is that for that
19-year period approximately one out of every two claims filed was approved for
benefits. A factor which has impacted the approval rate decline in recent years is
that individuals who worked in the mines prior to 1970 for a period sufficient to
contract black lung disease have retired and are, where entitled, receiving benefits
under the program. Individuals, whose principal mining employment has been since
1970, presuming medical studies are correct, cannot contract CWP. CWP does not
arise from specific exposure but from consistent high levels of exposure over an ex-
tended period of time. In fact, it should be assumed that the approval rate should
continue to move toward zero as time progresses.
Sammar]' of Clnlms Activity, Dr partmenl of Labor BInck Long Program
Cumulative, July 1, 1973 • September 30, 1992
7/1/73 - 2/2S/78
3/1/78 - 3/31/80
4/1/80 - L2/3/81
5ECM0N 718 (POST)
1/1/82 - present
lART B DENIALS
inherited from SSA
SSA All ROVALS
cbims approved by
SSA mider the 19T7
Sourte: OWCT Annml Report To Conpti?, I'Y 1991
VS. DDL, Employmenl Stjnd«rd< Adminlttnlioa
FINANCIAL IMPUCATIONS OF PROPOSED REFORM LEGISLATION
NCA, in an effort to ascertain the financial implications of proposed black lung
legislation, retained the servicos-of Milliman and Robertson, a leading independent
actuarial firm. They estimated that H.R. 2108, introduced by Rep. Austin Murphy,
which is similar to S. 1781, would:
significantly increase the costs of the Federal black lung indemnity program over
the coats being expended under current law by as much sis $30 billion. We believe
that a minimum approval rate in the 45 percent range will emerge — these hi^ ap-
proval rates will occur even though the incidence of disabling coal workers
pneumoconiosis is decreasing as the 1970 dust standards are, by all accounts, hav-
ing the intended effects of limiting disabling coal dust exposures.
We would ask that a copy of this stucfy be includea as a part of the hearing
This bill proposes to address perceived inequities in the program's administration
by imposing limitations (which are unjustified and potentially unconstitutional) on
a defendants ability to enter contravening evidence into the record. This occurs even
though another section of the bill provides incentives for the claimant's counsel to
perfect the record with expert testimony and opinions. Moreover, the bill would re-
quire the reconsideration of thousands of previously denied claims even though
mechanisms currently exist for a claimant to have his claim reconsidered through
a modification proceeding if the individuals medical condition has changed since the
time of the denial of his previous claim.
The Black Lxina Benefits Restoration Act of 1991 is a misnomer. This bill does
not restore benefits to anyone previously receiving them. Congress has never au-
thorized, nor has the coal industry advocated, the termination of benefits where a
final adjudication of entitlement has been entered. Rather, it attempts to validate
a entirely new class of claimants whose claims were previously denied by providing
them another opportunity to have their claims reconsidered under new provisions
which would strictly limit a defendant's ability to introduce evidence. It is important
to repeat that the vast majority of these claims have already been denied by both
SSA ad DOL, many rejected three or more times, and that there is nothing under
current law to prevent these individuals from having their claims reviewed again
through the filing of a modification petition if their condition changes.
The proposed amendments to the black lung program go far beyond the intent of
the original law enacted by Congress and they undermine the amendments enacted
some 13 years ago which were supported by labor, management, and this body. In
fact, the provisions contained in S. 1781 would again transform the present specific
disease-related compensatory program back into a general welfare program where
benefits would automaticallv accrue to individuals regardless of whether they had
actually contracted coal workers' pneumoconiosis.
For this Committee to now embark on such a legislative course within the narrow
confines of the coal industry, without considering the potential economic impact on
the industry, its existing work force and the communities which rely on a competi-
tive coal industry and the economic infrastructure the coal industry supports, is
questionable public policy. The coal industry and its employers ah^ady pay social
security and state workers compensation taxes to compensate individuals unable to
work because of occupational disability. To perpetuate and compound the acknowl-
edged flaw of the federal black lung program through enactment of S. 1781 is not
sound. This same conclusion was reataied in a study conducted by the School of So-
cial Service Administration, the Committee on Public Policy Studies, The University
of Chicago entitled. Black Lung: A Study of Disability Compensation Policy Forma-
tion. The study states:
Through a classic confluence of interest groups, politics and pubhc relations, the
Black Lung Program mushroomed into a billion-doUar-a-year permanent federal
program. The great conflict between the Social Security Administration and congres-
sional proponents centered upon Social Security's efforts to run Black Lung as a dis-
ability compensation program and the desire of proponents to make it into an in-
come maintenance program for miners and their families. The proponents largely
succeeded and essentially Black Lung became for a while a supplemental pension
program for long-tern miners with any form, and virtually any degree, of respiratoiy
Some have argued that the coal industry will not be called upon to pay for the
thousands of approved claims which will result — nothing can be further from the
truth. Senator Simon has recognized that an increase in the black lung coal excise
tax will be required to pay for the thousands of claims approved under S. 1781. We
believe that his amendment, which satisfies Congressional Budget Office budget
statement by passing along to electric rate payers $185 million over 5 years, rep-
resents just the tip of the iceberg. Congressional and Administration estimates of
the cost of this program have always been too low. I can assure you that should
S. 1781 become law the Congress will a^ain have to address the question of who
should pay for the black lung program smce over 80 percent of the coal produced
in the U.S. is used by US. electric utilities, ultimately Congress will be forced to
decide how much electric consumers should be called upon to contribute. Each and
every ton of coal used shoulders a share of this burden ad every electric consumer
unknowingly subsidizes this program. Currently coal companies not only directly
pay for the black lung benefits for certain of their former employees but also pay
into the Black Lung Disability Trust Fund $1.10 for every ton of underground-coal
mined and 55 cents for every ton of surface-mined coal. Coal consuming industries
ad American electric rate payers should not be forced to pay benefits where medical
evidence of black lung does not exist. S. 1781 would mandate just that.
Sec. 2. BENEFIT REPAYMENT
New "Sec. 436" would allow claimants to keep Part C claim payments irrespective
of whether the claimant is finally adjudged eligible for benefits unless fraud or de-
ception was used to procure the claim. ^.^^. u ■
This section contains no limitation on its application, so presumably its reach is
limitless ad could include claims filed and approved since the progframs inception.
As such, any claimant who received benefits under the Act before final adjudication
of the claim and who is entitled to the benefits could conceivably be entitled to the
benefit of this section even if the claim and its denial dated back to the inception
of the program. If this is the case, the financial burden will far exceed Congressional
Budget Omce's estimate.
Of greater concern, this section removes the balance which the original framers
of the program had intended. Namely, that claimants, because of the potential for
lengthy adjudicatory proceedings, could begin to receive benefits upon initial ap-
proval with the understanding that they would have to be repaid if ultimately found
to be ineligible. This principal has guided the program since its inception ad its
elimination is without merit.
Sec. 3. EVIDENCE .
This section limits the submission of evidence by a party adverse to the claimant
to only that amount submitted by the claimant.
It further limits the contesting of the central medical question by restricting the
submission of more than one piece of evidence during rebuttal.
It further requires that "substantial weight" be given to the miner's treating phy-
sician and allows for a ALJ to require additional medical evidence for "good cause"
to perfect a claim.
m an attempt to resolve a perceived inequity in the presentation of evidence, this
section raises constitutional concerns on whether the Congress can limit a party's
rights in a judicial proceeding. Setting aside the whole philosophical question of
whether one should limit a party's evidentiary rights, this section creates evi-
dentiary balance which, under present legal interpretation (the true doubt doctrine)
would culminate in the approval of thousands of claims.
All parties to a proceeding must be permitted, under standards of equal access,
to present their case completely and witnout artificial limitation. Section 3 will deny
defendants this right and undoubtedly lead to constitutional challenges.
Sec. 4. SURVIVORS AND DEPENDENTS
This Section 422 is similar to that proposed in H.R. 2108. It would mandate survi-
vors and dependents awards when:
Death was due to pneumoconiosis in whole or in part, or
The miner was receiving benefits at the time of death, or
The miner was totally disabled by pneumoconiosis at the time of death.
It establishes a rebuttable presumption where death resulted from a cause having
no medical connection to pneumoconiosis.
Stipulates that survivor's benefits will not terminate upon remarriage, is remar-
riage occurs after attaining the age of 50.
&«tion 4 would return to the pre 1981 davs when benefits were provided regard-
less of the actual cause of a miner's death. It would mandate that a surviving
spouse is automatically entitled to survivor benefits when a claim is filed (1) if the
miner was receiving benefits at the time of death and (2) even in instances where
the miner was disabled by pneumoconiosis but no medical determination of impair-
ment or cause was finalized.
In enacting the 1981 reform amendments Congress sought to assure that survivor
benefits would be paid only when the miner's death was significantly related to or
aggravated by pneumoconiosis. DOL's administration of the program since enact-
ment of those reforms has resulted in thousands of eligible survivors receiving bene-
fits. Elimination of this restriction serves no purpose other than to perpetuate the
income transfer which occurred prior to 1981.
Sec. 5. RESPONSIBLE OPERATOR
This section is intended to provide expedited mechanism for a re^nsible opera-
tor to be determined prior to the claim proceeding on its merits. This section re-
solves a DOL policy to name for administrative convenience, in some instances, mul-
tiple responsible operators.
Sec. 6. ATTORhTEY FEES
This section addresses a claimant's inability to obtain legal representation by es-
tablishing a mechanism for the claimant's attorney to receive compensation (includ-
ing expert witness fees) at each successive stage of the adjudicatory process, pro-
vided an favorable entitlement decision is obtained.
Should an operator ultimately prevail in challenging the validity of a claim, the
operator will be reimbursed, by tne Trust Fund, for any money paid to the claim-
Section 6 represents a bizarre attempt to address what many have recognized as
a true problem confronting black lung claimants, namely, the inability to obtain
legal representation in judicial proceedings. It alters the existing system which al-
lows for the payment of attorneys fees only after a final adjudication.
This section establishes a special, preferred class of claimants whose ability to ob-
tain attorney's fees far exceed those provided by anv other program or statute. We
are unable to identify another program which provides for the payment of such fees
prior to a case being finally adiudicated. This section sets a dangerous precedent
which should be examined by tne Judiciary Committee prior to its final consider-
Sec. 7. ADMINISTRATION
The section addresses a previous dispute regarding the appeal of District Ofiice
decisions to the Benefits Review Board.
Sec. 8. REFILING
This section permits the refiling of any claim filed and defined after January 1,
1982, for a de novo review on the merits. Approximately 90,000 previously denied
claims would be subject to review.
Under the current program, claimants can refile for consideration upon the show-
ing of a change of condition. This provision eliminates that prima facia requirement
and provides for unrestricted refiling authority.
No one can predict with certainty how many claims will be refiled and what per-
centage will ultimately be approved. While history is not a exact gauge for the fu-
ture, one need only look to the 1977 amendments to the Act and the mandate that
previously denied claims be considered under the new eligibility criteria to ascertain
the potential financial implications of this provision. In that instance, some 60,000
previously denied claims were reconsidered ad placed in payment status, thus
dooming the Trust Funds fiscfd solvency.
Sec. 9. DEFINITIONS
This section would:
Amend the definition of miner to include coke oven workers or those working in
operations reasonably related to the coke oven. As it stands now, the amendment
contains no mechanism for the financing of any claims which may be approved. It
validates an entirely new class of individuals as potential claimants ad unjustifiably
subjects the coal industry to the potential finaqcial liability for the payment of bene-
fits to individuals who were not employed by the coal industry.
Amend the definition of pneumoconiosis to include obstructive lung disease (non
coal-related diseases) in the list of compensable conditions under the Act. This wUl
broaden the scope of the Act and assure the payment of benefits to miners sufiering
from respiratory disorders unrelated to coal workers pneumoconiosis.
Inclusion of this section creates the potential for a significant number of new
claimants under the Act even though their respiratory impairment may be totally
unrelated to long-term exposure to excessive quantities of respirable coal mine dust.
In a 1989 study published in the Journal of Occupational Medicine, Dr. Thomas M.
Roy and his colleagues in a study entitled "Cigarette Smoking and Federal Black
Lung Benefits in Bituminous Coal Miners" concluded:
This evidence suggests that prolonged exposure to coal dust may be expected to
cause only minor airway obstruction in the absence of other irritants. In our studv
group, cigarette smoking clearly emerged as the primary variable associated with
pulmonary impairment severe enough to warrant a financial award under present
In summaiy, we wish to call attention to the fact that the Federal Coal Mine
Health and Safety Act appears to reward the bituminous coal miner whose pul-
monary reserve has been damaged by cigarette smoking rather than by coal dust
Sec. 10 and 11 BENEFITS REVIEW BOARD
These sections amend the Act relating to the appointment of and compensation
of members of the Benefits Review Board.
Mr. Chairman, we are not unsympathetic to claimants' complaints when it takes
years for final adjudication of claims nor do we believe that claimants should be de-
prived legal representation when they desire such assistance. What we do strenu-
ously object to are provisions which will place artificial limitations on our ability to
defend against claims as well as the unfettered refiling of thousands of claims.
There must be a end to this. We cannot afford to provide benefits regardless of ac-
tual disability or the cause of such disability. This was never what was intended.
The federal black lung program was not intended as, and cannot be permitted to
become, a supplemental pension program. Other mechanisms exist which provide
supplemental income to retired miners. The black lung program cannot fill this role.
This bill neither addresses the real problems nor assures potential claimants that
the program will operate in a equitaole and expeditious aqjudication of black lung
Senator SiMON. Mr. Watzman, have you ever been in a coal
Mr. Watzman. Yes, I have.
Senator SiMON. And, judging by your age, you have been down
in a coal mine since 1970.
Mr. Watzman. Yes, I have.
Senatx)r SiMON. And you have been up in the face, where vou
have seen the work done, and you have not noticed any coal dust
Mr. Watzman. I have noticed coal dust. Senator.
Senator Simon. And when you came out of the mine, did you no-
tice coal dust when you blew your nose, or in your nair or your
Mr. Watzman. Yes, I did.
Senator Simon. And you know that people who are down there
for 8 hours, working, are breathing that in, and that that affects
One of the realities is that the black lung law on complicated
pneumoconiosis was not only designed to protect coal miners, but
also to protect coal companies. If we had no law, these four wit-
nesses who are here could sue the coal companies for pain and suf-
fering. Let me tell you, if you went to a jury in southern Illinois
or in coal country in Pennsylvania, you would have some big
awards against coal companies. There are complaints about the
costs, however, the costs to the coal company if we were just to re-
peal black lung would be enormous.
So I think what we had better do is find some sensible middle
ground. I have been in Grovernment for a fair number of years, and
I know that pendulum can swing from one extreme — and I do not
know if you were here when I made my opening remarks^-can-
didly, there were people who received black lung benefits when the
program started who should not have received black lung benefits.
It was too easy at first, and the coal miners who are here know
what I am talking about.
Then that pendulum swung over to the other extreme. So I think
we had better find a sensible middle ground here, both for the pro-
tection of the coal companies, the coal industry, and for the protec-
tion of coal miners.
Now, you mentioned the 47 percent approval rating since 1973.
That figure is heavily tilted. President Trumka has used the 4 per-
cent figure, and my own experience talking to coal miners is that
that 4 percent figure has to be about right. There is not 47 percent
being approved right now, and you will acknowledge that, won't
Mr. Watzman. I will acknowledge that. Senator. The number
that is used by the Department of Labor and contained in the same
report I referenced is 7.9 percent. That is a Labor Department de-
Senator Simon. OK, 7.9 percent. That means one out of every 12
miners is getting approved.
Let me ask about another area. Ms. Fraley, you talked about the
$70,000. Most coal miners I talk to are just devastated by these
claims, but they cannot pay them back. How much is being re-
turned now? Is it a significant amount?
Mr. Watzman. Senator, I am not capable of quantifying that. I
think the Department of Labor is better qualified. The impression
I have is that while letters have gone out to claimants, my impres-
sion is that if a claimcmt can inform and demonstrate to the De-
Fartment of Labor that they are incapable of returning the money,
do not think they go much further than that.
However, what must be remembered, Senator, is that when the
legislation was originally passed, there was a balance created. Con-
gressman Perkins was involved as one of the original framers. It
was always conceived that these would be interim benefits that
would begin to flow to the claimant with the understanding that
if ultimately, they were adjudicated to be not entitled, the money
would be returned, and claimants were advised of that when the
initial adjudication and a favorable decision was rendered.
Mr. Hess. May I interrupt here? I have to, due to the fact of
what he is saying here. Mr. Perkins was in a hearing last year.
They have a collection agent down in Texas, and thev said they
were paying out one dollar for every two that they collected. OK,
it is just like the collection agent. And what we have to look at here
is these people are getting Uiese benefits, and when they sign up
for them, like Mr. Zomes said, maybe thev do not have a lot of edu-
cation; maybe they read the letters and they says, "OK, I have
spent this much time, and this is mine. They are giving me noth-
ing." Then they will come back in, say, 5 years and State that you
have an overpayment, and they will turn the collection agent loose
on this person, devastating him. So this is not true due to the fact
that they will continue to hound these people, and when you do not
have a knowledgeable person to turn to, these people are dev-
Senator SiMON. Let me mention one other area that is of concern,
and that is the imbalance of representation. The only lawyers who
frequently take these cases, if they take them, are lawyers with
very little experience. They go agamst the lawyers that represent
the coal companies, and the results are really grim.
I happen to be — and it is a minority opinion here — I happen to
be opposed to capital punishment. My reason for being opposed to
capital punishment is that, candidly, if you are poor and you do not
have the money, you are not going to be able to hire good attor-
neys. If you are wealthy, and you can hire the best attorney, you
are never going to receive capital punishment. So you put good
prosecutors against inexperienced lawyers, and capital punishment
When you put the lawyers for the coal companies up against in-
experienced lawyers — and I do not mean this disrespectfully — ^fre-
quently young lawyers, or lawyers who are desperate for work,
there is a huge imbalance in representation. Does that concern you,
and what is the answer for that?
Mr. Watzman. Senator, this is one of the administrative areas
where we recognize the program needs reform. I do not have a so-
lution to offer to vou today. Will what is contained in the legisla-
tion solve the problem? It might. But in closing on that point, this
is one area where we recognize the program needs revision.
Senator SiMON. Mr. Trumka.
Mr. Trumka. Mr. Chairman, S. 1781 does not change the sub-
stantive provisions of the black lung eligibility bill. What it does is
attempt to remove some of the David and Goliath mismatch from
the local victims and the companies. And they will spare no ex-
pense on every black lung claim, I was tempted to ask Mr.
Watzman if he would submit how much the companies have cumu-
latively spent against these claims over the years.
So I think the industry gets hoisted on their own petard in their
argument. What they are saying is that if in fact you take away
some of the discrepancy and power, or the ability to represent your-
self fairly and procedurally in these claims, too many claims will
be approved, and it will cost too much money. In essence, that is
Well, what does that say about the current system? What it savs
about the current system is that they like it stacked so against the
little g^y that they can always win. But that is always how it has
been. I mean, employers have always liked to have a tremendously
large overabundance of power to be able to use against workers.
So this is an argument that has been used in a different forum
for nearly 100 years against coal miners. And I really believe that
on this one, it gets hoisted by saying that if you remove some of
the procedural unfairness, too many claims will get approved, and
therefore it is going to cost us too much money.
Mr. Watzman. Senator, may I respond?
Senator Simon. You may, and then I want to toss one other ques-
tion at all of you and then hear from my colleague. Senator
Mr. Watzman. With all due respect, we are not saying do not re-
move the procedural hurdles because we are advantaged by them.
What we are saying is do not inadvertently, by creating new hur-
dles, create a mechanism that by administrative flat results in the
approval of claims. There is in place a mechanism of the benefits
the ALJs and the Benefits Review Board call "true doubt." It is be-
fore the U.S. Supreme Court right now. This bill, your bill, estab-
lishes equipoise, which under the Benefits Review Board doctrine,
says the ALJ must at that point rule in favor of the claimant.
We are not saying— can I sit here and defend where an operators
has presumably 66 x-ray re-reads and the claimant has two? No,
and I would not pretend to do that. What I am saying is do not
inadvertently create a mechanism that goes from this point to this
Mr. Hess. Well, I certainly have to disagree due to the fact that
I believe anything you go at, if you say 50/50 — if we go into court,
and you have the same evidence I have — ^but what we are submit-
ting nere is two/two, three/three,four/four, not for the Coal Associa-
tion to have 67, and our people, who have to pay $1,800 for a full
physical, which they cannot afford, to have to be up against that.
Now, I will be honest with you. I will go in with any of them with
an attorney, three to three or four to four, but not take them and
send them to Ontario, Canada, even out of this country, to some-
body they bought to overturn them.
Ajid another thing you have to look at — we keep talking about
widows, which is the sad part here. If we have a widow in here
today whose husband is drawing black lung after 1981, and he is,
for instance, on oxygen, like the gentleman behind me, and he is
in an ambulance, and they are in an accident, and he is killed, his
wife cannot draw her benefits due to the fact that the death certifi-
cate is going to State that this gentleman was killed in an ambu-
lance accident, and that does away with it. Is that fair?
Senator SiMON. Let me iust mention one other concern I have,
even if we pass S. 1781. The concern is that we will set up a sys-
tem where we are going to have a lot of lawyers making a lot of
money, but we are not going to get the money to the coal miners,
who reallv ought to be receiving the money.
I would toss this out for all three of you. I still would like to see
a system where, if you had so many years in the mines — when I
was in the House, I remember a study by the University of West
Virginia Medical School, I believe, that indicated that anyone who
had been in the mines for 17 years or longer had black lung. I do
not know what the figure is, and let us just say that you do not
acknowledge it below 10. Let us say that we pick the year 20 — ^be-
tween 10 and 20, you can contest it, and then you go through the
There ought to be protections so we do not just enrich the law-
yers above a certain level. It just seems to me we ought to have
a system that is not that complicated. A system for coal miners, if
they are in good health — and even if they are not in good health.
I have seen coal miners go down into those mines, and you know
they have black lung, the way they are breathing and staggering.
But they want to make that money. They want to pay for that
house mortgage or whatever. We ought to be able to aesign some-
thing that is fair.
And again, Mr. Watzman, I would say to the Association that if
we do not permit that pendulum to swing down to something that
is fair, one of these days, that pendulum is going to swing over too
far in the other direction, and the coal industry in this country is
going to get hurt.
Now, iust any observations from the three of you, and then I
w£int to hear from my colleague, Senator Wofford.
Mr. Hess. Well, I would like to know how many times or how
much time Mr. Bruce Watzman has been in the coal mines.
Senator Simon. Well, if he wants to answer, he can, but I think
we had better leave the questions up to the members of the panel
Mr. Trumka. Mr. Chairman, we have long been an advocate of
a system such as you have explained. I think it would be fair and
just, and in other countries, it is the type of system they have put
into place. In many foreign countries, black lung was recognized as
a disease 50 years before we recognized it in this country, so we
are behind the curve on that both in terms of eradicating black
lung and compensating victims for black lung.
We would be foursquare in favor of a system as you just de-
scribed. I think it would make sense administratively. It would
minimize and be cheaper for the industry because of the expenses
that they go through in all of these claims, and it would be far
more humane to the victims who have to drag themselves around
the country to hearing after hearing, and far more humane to the
surviving spouses of those victims as well. We would be anxious,
ready, willing and able to stand and work with you for such a sys-
Senator SiMON. Thank you.
Senator Wofford. Thank you, Mr. Chairman.
I am especially interested in what more we should be doing to
prevent this terrible disease. Is the current coal dust sampling ade-
quate? Is that part of our system adequate today?
Mr. Trumka. The system, in our opinion, is totally inadequate.
I think it has been proven over a number of years that when you
put the system in the hands of those that you are monitoring,
namely the operators, that there is a tendency to abuse the system.
Most recently, the rash of dust fraud cases is only the most recent
indication of that.
Currently, MSHA, the agency that is charged with protecting the
health and safety of American miners, lacks the number of inspec-
tors to be able to adequately monitor the mines. Moreover, even if
they were monitored, with the current dust standard, contrary to
what Mr. Watzman said, they are not consistently below the 2 mil-
ligram standard. There are a number of long wall systems and con-
tinuous mining systems that are out of compliance on a normal,
regular basis. And even if they were, the other countries and the
medical evidence that we have indicates that a 2 milligram stand-
ard is simply too high to prevent the occurrence of black lung in
It is our opinion that it needs to be lowered to one milligram per
cubic meter of air, the same standard that you see in many other
Senator Wofford. Mr. Watzman.
Mr. Watzman. Senator, let me respond in two manners. One, I
will go back to what I said earlier. Disregarding for the moment
operator sampling in the mines, because for some reason, today, we
are tainted by some allegations that an administrative law judge
overturned, but using only MSHA inspector samples, we are below
the current dust standard, and we continue to be. And we continue
to strive for better and better systems to reduce the standards and
the achievement below where we are today. And in those instances
where miners are exposed to quantities in excess of 2 milligrams,
we attempt to utilize protective equipment where it is permitted,
we attempt to remove them from the dusty environment. But what
must be recognized is that a short-term exposure to an excessive
quantity of dust does not cause pneumoconiosis.
The 2 milligram standard was designed to protect a miner work-
ing his entire life, 8 hours a day for 40 years. There is nothing that
relates a short-term, single-incident exposure to the onset of
Senator Simon. If my colleague would yield at that point, I differ
with you, Mr. Watzman, in your statement. The answer is that for
some people, that is accurate. People are different. My body is dif-
ferent than yours. And I have known coal miners who have been
down in mines 40 years, and believe it or not, they seem to be vig-
orous and without impairment. I have known others like the gen-
tleman in the audience, with liy2 years in the mines, and he is
using that oxygen tank. He does not nave that oxygen tank because
he enjoys carrying it around. He needs it to live.
So different people will have different responses, and I do not
think we can say that because some people can go 25 years without
having complicated pneumoconiosis that therefore everybody can go
25 years without having it.
I am sorry for interrupting, Senator Wofford.
Senator Wofford. Did you want to add anything to that, Mr.
Mr. Trumka. I was just going to say that the process in black
lung is quickly about to get more complicated than it already is,
with the interjection of and exposure to diesel equipment into un-
dergfround coal mines. More and more States are now allowing die-
sel equipment into underground coal mines. First of all, we have
no threshold level of diesel exhaust that can prevent carcinogenic
agents in diesel exhaust from causing further lung disease. More-
over, animal evidence indicates that when you mix diesel exhaust
with coal dust, the incidence of black lung increases dramatically,
and we have no measuring device today and no system to take care
of that or to measure for that.
I did not mean to imply that there are not a number of operators
who are not trying to increase the level of health and safety in
their mines. I just want to point out that when Mr. Watzman says
that a few of the samples were recently "tainted," there are a cou-
ple hundred people responsible for those few tainted samples who
have pled guilty to a criminal charge of fraudulent dust sampling —
over a couple hundred.
So it is more thein just a few tainted samples, Bruce. It is wide-
spread. And this is not the first flurry of it. Since 1969, we have
come up on this Hill time and time again and exposed where opera-
tors were abusing the system, taking samples outside, and then ex-
posing men and women to high dust levels, all in the hope of sav-
ing a few bucks short-term. Long-term, it ultimately cost them
The Nation's coal mines are not safer today than they were 10
years ago, Mr. Chairman. They are more dusty today than they
were 10 years ago. They are more dusty, not less dusty. The trend
is in the wrong direction. More and more people in the future are
going to have black lung, no less. And a system like this may dis-
guise it because guys like that one back there with the oxygen tank
just cannot come forward and bring a bag of money to do battle
with some of his corporate attorneys. The system is twisted against
them, and I applaud you, and I applaud the Senator from Penn-
sylvania for trying to change it. And I applaud those operators who
are willing to step up to the plate and help us change the system
to make it more fair.
Senator Wofford. Mr. Watzman, would you elaborate a little on
what else vou would suggest to us needs modification. You said
that some 'discrete modifications" are called for in the black lung
program, and you mentioned legal representation.
Mr. Watzman. I think the other area. Senator, that needs to be
looked at is the time it takes to process a claim. I think if we could
shorten the time in the adjudicatory process, that may get to the
issue and resolve the issue of repayment of benefits where final ad-
judication says a claimant is not entitled.
The Department of Labor does not proceed expeditiouslv. It takes
several years — it does not take a long time for an initial aetermina-
tion, but that is when things begin to slow down. And I think if
we could compress the time in some manner, we may get over the
hurdle of a claimant receiving interim benefits for 4 or 5 or more
years and then being asked to repay that amount.
Senator Wofford. Anything else?
Mr. Watzman. I think another area, and one that we have looked
at and that is not contained in the legislation, and it was raised
by one of the individuals on the previous panel, is the ability to set-
tle claims. Right now, there is no authority under the black lung
program to do that. So bv not having that ability, de facto you are
led into the process of having to litigate. But that is the alter-
native. You accept the payment, or you litigate. And I think if
there were settlement authority in the program which is contained
under the Longshore Act, but was excluded by reference in the
black lung act, that may move the process along as well.
Senator Wofford. Is there any evidence as to the comparison be-
tween the percent of claims the Department of Labor is approving
and the actual rate of occurrence of black lung disease?
Mr. Watzman. I think the Department would be better equipped
to respond to that. Senator, than I. I do not have information like
Senator Wofford. This is another version of the question of
whether we are making progress or falling behind.
Mr. Trumka. In each one of the claims that is contested, there
is medical evidence to indicate that the victim has black lung.
There is no case that I am aware of that gets past the preliminary
stage where no doctor savs you do not have black lung. So what
it comes down to is a battle of the Titans, or a battle of the medical
evidence. One person looks at an x-ray and says, "Yes, you have it,"
and another person looks at the same x-ray, maybe 500 of them,
and has never seen one yet that had black lung.
So I guess our argument would be that 4 percent of the people
who have it ultimately get benefits.
Mr. Watzman. Senator, if I might, let me draw on a personal re-
flection here. In February of 1992, my mother passed away in a
nursing home here in Maryland. Up until 6 months prior to that,
she had lived her entire life in Pittsburgh, PA. The last 3 years of
her life, she was on oxygen full-time. The last 8 months of her life,
she was in a nursing home, confined to a bed, on oxygen full-time.
She never worked a day of her life in the mines. She suffered from
Am I saying by that that all miners are smokers? No. Am I say-
ing by that that there are not miners who contract pneumoconiosis
and should be compensated? No, I am not. But I am saying that
there are compouncfing factors that come into play beyond a person
working in the mines that contribute to this. It is not cut and dried
in each case. That is why the standards are in place that there are.
The medical standards were looked at — disregard our view of the
medical tests that are used by the Department of Labor or the
Mine Workers' critique of the medical tests used — these were
looked at by independent individuals, the Thoracic Association,
who have no axe to grind in this, and they determined and their
view was that these were the right tests to use given the State of
the art to determine whether a miner was suffering from
pneumoconiosis. That is what is in place today. All we do as opera-
tors is work within those confines.
Yes, there are aberrations, as I said before, where operators will
come in with excessive amounts of evidence as opposed to the min-
ers. Should they be permitted to do that and the determination
made on quantity rather than quality of evidence? No, it should
not. Quantity should not be the determining factor. But in many
instances, it is.
All we want to avoid in your modification to the program is that
we do not create a situation like Mr. Hess talked about, where
there are three or four pieces of evidence, and no matter what the
limitation is, if it is an artificial limitation that imposes the same
restrictive amount on both parties, the determination will be made
on behalf of the claimant. That is the issue that is before the U.S.
Supreme Court in the "true doubt" case, where both the claimant
and the contestant had the same numfeer of pieces of evidence, and
the administrative law judge said the evidence is in equipoise; we
must find for the claimant. That is our major concern with the way
this legislation is written. It creates that situation in our mind.
Senator Wofford. Mr. Chairman, I guess the committee's test is
going to be whether it concludes that the problems we have seen
are by and large aberrations and exceptions, or whether they are
real problems of the system that go bevond the several points that
Mr. Watzman says he recognizes need to be acted on. I hope we
can move soon to resolve this in the committee.
Senator Simon. Yes. And let me say that obviously. Senator
Wofford and I have concluded that something is wrong with the
system. But I am not interested in just introducing a bill, having
a hearing, and getting nothing done. We have had enough of that
kind of stuff. What I would really like to see is some additional pro-
tection. And I will consult with my colleagues, Senator Wofford and
Senator Robb, to see what they think.
We will come up with some modification of this, and then I would
like to ask all three of you and any others who are interested in
seeing it for your reactions. And let us see if we cannot get some-
thing done that will more adequately protect the people who work
in our coal mines. I think we owe that to them.
Senator Wofford. If we add those words, "get it done."
Senator Simon. And get it done; absolutely.
[Additional statements and material submitted for the record fol-
Prepared Statement of Stephen A. Sanders
My name is Stephen A. Sanders. I am an attorney with the Appalachian Research
and Defense Puna of Kentucky, Inc., in Prestonsburg, Kentucky. In the course of
my practice, I have represented many miners and widows on claims for benefits
under the Federal Black Lung Benefits Act. I am submitting comments today con-
cerning the Black Lung Benefits Restoration Act, 5.1781, on behalf of Mildred
Meade, a widow from Feds Creek, Pike County, Kentucky.
Mrs. Meade's husband. Bill Meade, worked as a coal miner for 32 years. For many
of those years, he worked in an underground mine as a continuous mining machine
operator. He also worked as a helper to the continuous mining machine operator,
pulling the electrical cable and water hose to enable the mining machine to cut coal.
These jobs required him to work in an extremely dusty part of the mine, and day
after day he breathed in large amounts of coal dust and rock dust as the mining
machine cut coal from the coal seams. Mr. Meade stopped working in 1982, and in
1983 he filed a claim for Federal Black Lung Benefits.
Mr. Meade's claim illustrates the problems with the present system. Twice hear-
ings were postponed at the request of the Operator who claimed they were preju-
diced by evidence submitted by Mr. Meade and needed the opportunity to develop
During the course of the development of the evidence on this claim, seventy-five
x-ray interpretations were submitted. Every time Mr. Meade obtained a chest x-ray
interpretation the Operator submitted multiple rereadings. Fourteen pulmonary
function tests and nine arterial blood gas tests were obtained. As with the x-ray evi-
dence, for every test Mr. Meade submitted, the Operator submitted reports from
consultative physicians who reanalysed the reports. In addition, the Operator re-
quired Mr. Meade to submit to multiple physical exams. The reports of Mr. Meade's
treating physician, who had stated in several well-reasoned written reports that Mr.
Meade was disabled by pneumoconiosis, based on the results of objective testing, as
well as the report from a pulmonary specialist who had examined Mr. Meade, re-
ceived no consideration in view of the Operator's consultants' opinions. Mr. Meade
died in July, 1994, without having received a decision on his claim. After Mr. Meade
died an autopsy was done. The autopsy proved that Mr. Meade had pneumoconiosis.
Mrs. Meade is now pursuing a claim for benefits on Mr. Meade's account. She sub-
mitted the autopsy results to the Department of Labor. The conclusion of the pathol-
ogist who performed the autopsy was that pneumoconiosis contributed to cause Mr.
Meade's death. Mr. Meade's treating physician agreed with this 'opinion. However,
a consulting doctor who reviewed the autopsy slides disputed whether Mr. Meade's
pneumoconiosis contributed to cause his death. Mr. Meade' s original claim and Mrs.
Meade's claim continue in litigation because of this opinion.
The premise of woriiers compensation laws is to provide compensation to a worker
whose health has been damaged or destroyed by their employment. Mr. Meade was
only 52 years old when he was forced to leave coal mining because of his breathing
difficulty. He would have continued mining if he had been healthy. Mr. and Mrs.
Meade had four children. Financially, it was very hard for them when Mr. Meade
was forced to leave his job. Mr. Meade received nothing for the Black Lung which
destroyed his health. The Federal Black Lung benefits, created to provide compensa-
tion for disabled miners, was of no benefit to Mr. Meade during his lifetime, and
he died with the uncertainty that it would provide any benefits to his widow.
S. 1781 contains provisions which would have prevented this ongoing travesty. By
limiting the amount of evidence that can be introduced, unnecessarily lengthy litiga-
tion can be avoided, and the claims process can become a fairer and more efficient
process. The bill sets much needed Kmits on the amount of x-ray interpretations and
medical examination reports that can be introduced into evidence.
S. 1781 has flaws. It does not give proper weight to the opinion of the treating
physician who is not board certified in a specialty relating to the treatment of lung
disease. Current case law in the U.S. Court of Appeals for the Sixth Circuit gives
greater weight to the treating physician, regardless of board certification. As we aU
know, a doctor gains a great deal of information about their patients simply by
treating their ailments over a period of time. This expertise is not dependent on
being board certified in any specialty, and the opinion of a competent doctor whose
treatment of a patient spans a period of time, when expressed with sound reasoning,
should be given added weight by the fact finder in the abjudication of a disability
S. 1781 also invites abuse on widows. If the miner suffered from pneumoconiosis
at the time of his death and was disabled by it, the widow should receive benefits.
S. 1781 leaves open the door to litigation as to whether the miner's death was the
result of an event that had no medical connection with pneumoconiosis. This is not
significantly different from the present regulations. To prove the cause of death re-
quires the widow to have her deceased husband's body dissected by pathologists
aft«r his death so that autopsy results are available. Requiring a widow to litigate
whether Black Lung was the cause of the death of a miner disabled by Black Lung
places an inhumane onus on a widow.
In closing, we ask that you return this benefits program to what it was originally
intended to be, a fair system of compensation for miners whose work exposed them
to the hazards of breathing coal dust and rock dust, and whose disease left them
disabled and unable to support their families.
Joint Prepared Statement of Tina Douglas, Paul Siegel, and George New
We wish to thank Senators Simon, Robb, and Rockefeller for their initiative in
submitting S. 1781. The bill addresses many of the huge problems faced by disabled
miners and widows who applv for Federal Black Lung benefits.
In our work with hunared[s of disabled miners and widows we have found that
the program's intent has in the last decade been distorted beyond recognition, to the
point where the process of seeking Federal Black Lung benefits has Secome a long
exercise in frustration, and despair for the majority oi disabled miners and widows
No matter how compelling and convincing the evidence is of severe disability due
to a coal dust relatea lung disease, the coal companies alwavs have a vast array
of well paid doctors and lawyers who are only too happy to deny that coal dust is
the cause of the problem. Because of the huge hourly fees that medical experts
charge for the consulting opinions, there is no possibility of the miner matching the
coal companies' voluminous, "iMught and paid for" testimony. The result is years
and years of litigation as the claimant gets older and sicker, followed by inevitable
This situation is especially dishetirtening in view of the fact that it has now been
clearly established by epidemiological studies that there is a link between chronic
obstructive pulmonary disease and coal dust exposure in addition to the link long
ago established between coal dust and interstitial, restrictive disease — the objective
existence of such a link is now the ofiicial position of NIOSH. This ends a genera-
tion of controversy in which the coal companies promoted the myth that COPD can
by caused by cigarettes and other pollutants but not by coal dust. But despite the
proof of a significant statistical link based on population studies, the superior finan-
cial resources of the coal companies allow case after case of individual miners to be
denied anyway. In effect, the U.S. government tells us that, scientifically speaking,
coal dust causes COPD among thousands of miners, while it tells us — through the
denial of over 960o of cases- -that we Just cannot find which individuals have it so
virtually no claims can be paid. This is because the coal companies will always be
able to hire doctors to deny the link in each individual case.
And what makes the situation doubly disheartening is that during the same dec-
ade in which the coal companies and the Department of Labor spent huge amounts
of dollars and incredible numbers of hours to defeat miners' claims, many operators
were also fraudulently falsifying the legally required dust sampling, while the De-
partment of Labor failed for years to catch this fraud.
Thus, there was a sabotaging of the U.S. Congress's commitment to reduce res-
f)irable coal mine dust to levels where we might actually see a reduction in black
ung disease instead of just a reduction in the number of disabled miners receiving
Clearly, there is a great need to reform the black lung program so that claims
are resolved fairly without years of litigation and mountains of paper which is al-
ways stacked agmnst miners and so that resources are channeled into the reduction
of mture disease through effective and well enforced dust control measures.
Last us say quite frankly that S. 1781 and the similarly worded House bill, at-
tempt less than the comprehensive reform of the program that the Associations had
hoped for. This refiects political and fiscal realities; we understand this and support
the effort to get the best possible legislation this year. But it is thus crucial that
the provisions that the bill does offer be very clear and that they assure the imple-
mentation of intent without inadvertently opening the door to distortions and years
of wasteful litigation.
In this regard, we ask that you carefully consider the following comments which
grow out of our considerable experience with the realities of the Black Lung Benefits
1. Section 3 — Evidence. This key section addresses the imbalance created by the
coal companies' purchasing of large numbers of medical reports. The intent is laud-
able. We have concluded that the real problem is the proliferation of "consultative"
or "interpretive" opinions by non-exanuning physicians and multiple x-ray re-read-
ings. By devoting a considerable number of words to the issue of examinations" of
the miner, the bill tends make the examination process more cumbersome, complex
and contentious then it already is. The current regulations already limit the number
of exams; they also allow the DOL to order additional exams when there are unre-
solved medical issues. It would be much preferable to leave the existing rules on
exams intact and have the bill address the real problem — consulting opinions and
We thus urge that (m) (1) A, B (i), (C) and (D) be eliminated from the bill. (E)
should also be eliminated since existing rules already clearly allow for admission of
hospital, treatment and biopsy/autopsy records. The only thing that should remain
from Sub-section (m) (1) is f>aragraph (B) (ii) which deals with x-ray readings, and
that wording could be made clearer.
Subsections (2), (3) and (4) address the real problem of multiple interpretive (non-
examining) opinions. We would suggest that sub-section 4 spell out that the claim-
ant may submit an opinion of his treating physician in addition to smy interpretive
opinion that the claimant submits under subsection 2. This is in line with the spe-
cial relevance that the treating physician's knowledge may have. It is also entirely
fair since sub-section (2) allows each party to submit one interpretive opinion, thus
creating a situation where two interpretive opinions will often be arrayed against
the claimant (one by the DOL and one by the coal company).
We would also suggest that if the intent of sub-section (4) to allow extra weight
for the treating doctor is to be implemented it should be spelled out that if the treat-
ing doctor is board certified in internal medicine, then such certification shall be
considered a specialty relevant to diagnosis of total disability or death due to
Finally, in line with eliminating the handling of actual examinations from the bill,
sub-section 5 can be eliminated.
Attached, aa Appendix I is our suggested wording for Section 3.
Section 4 — Survivors. This section addresses the tragic situation in which survi-
vors' benefits have been almost eliminated by the unfair burden of proving death
due to pneumoconiosis even if the miner was totally disabled by pneumoconiosis at
the time of death. S. 1781 has taken the language of the House bill, that where a
miner was totally disabled by black lung his death shall be considered to have been
due to black lung, and added, "unless the miner's death was the result of an event
that had no medical connection with the pneumoconiosis".
The above language would not effectively remedy the ityustice. The legislative his-
tory accompanying the 1981 amendments already allows the establishment of a re-
lation^ip between pneumoconiosis and death when the direct cause 15 another con-
dition tiiat was related to pneumoconiosis. In fact, the above wording could possibly
have a restrictive effect in relationship to current case law.
We urge that the bill clearly state that entitlement shall be established if the
miner was totally disabled by black lung or if he died of causes related to black
lung. If this forthri^t ending of the "cause of death" requirement cannot be accom-
plished, at the very least the phrase quoted above should be changed to, "unless the
miner's death was the result of an event that would have ended his life on the same
day regardless of his pneumoconiosis". But we think restoring the right of widows
to receive benefits if the miner was totally disabled by black lung without adding
the burden of cause of death is entirely reasonable ana necessary. (Appendix II has
suggested wording for Section 4 (a).
Concerning Section 4 (b) (2), (ineligibility of remarried widows under age 50), we
would suggest adding clarifying language that if the remarriage terminates, eligi-
Section 6. Attorney Fees. This section addresses the difficulty which claimants
currently have in finding attorneys to take their claims, since it is so difficult to
win and it takes so many years oi litigation. We are a little concerned that the pro-
vision for payment of claimant attorneys who win an approval, even if that approval
is contested at the next level of appeal, could result in some attorneys withdrawing
from the claim having received fees and leaving the claimant unrepresented. We
think that if incentives are to be ofiered,the incentives ought to be directed at en-
couraging the best attorneys to take on claimants' cases through all the challenging
levels of appeal and at encouraging adversaries to stop dragging every case through
the highest levels of appeal.
In line with this, we suggest that for each level beyond the ALJ level in which
the claimant's adversary appeals, a "multiplier" be added to the fee which they must
pay to the claimant's attorney, if the claimant prevails.
Section 8. Re-filing. This is a very important section, since the bill does not pro-
vide for an automatic reopening of all previously denied claims. We want to make
sure that de novo review on the merits means that the claimant has full rights to
submitting of new evidence and to all levels of appeal. We believe that de novo
means that but we would hope for clarification either in the bill's language or in
the legislative history. It also might be advisable to provide that the Secretary of
Labor shall notify all previously denied claimants in writing that legislation has
passed and that they have a right to file new claims which will be considered on
their merits under the new law.
Section 3. Evidence
Section 422 (30 U^.C. 932 is amended by adding at the end the following:
(mXD During the course of all proceedings on a claim for benefits under this part,
the results of not more than 3 interpretations of chest roentgenograms offered by
the claimant may be received as evidence to support eligibility for oenefits. The re-
sponsible operator or trust fund, whichever one is found liable for payment of bene-
fits, may oner into evidence no more than the total number of roentgenogram inter-
pretations offered into evidence by the claimant.
(m)(2) In addition to the medical examinations authorized by the existing regula-
tions, each party may submit not more than one interpretative medical opinion
whether presented as documentary evidence or in oral testimony. Such medical
opinion may review other evidence derived from chest roentgenograms, blood gas
studies, or pulmonary function studies contained in the reports of examinations au-
thorized under existing regulations.
(3) [Preserve identical language to (m) (3) in Senate bill 1781]
The claimant may submit a medical opinion by his treating physician and this
opinion shall be received into evidence in addition to any interpretive medical opin-
ion submitted by the claimant under paragraph (2). If the claimant submits a medi-
cal opinion by his treating physician, such opinion shall be given substantial weight
over the opinion of other physicians in determining whether the claimant is disabled
by pneumoconiosis if the treating physician is board-certified in a specialty relevant
to tne diagnosis of total disability or death due to pneumoconiosis. For purposes of
this Section, board certification in internal medicine shall be considered to be a spe-
cialty relevant to the diagnosis of total disability for death due to pneumoconiosis.
Section 4. Survivor Benefits
(a) Section 422 (30 U.S.C. 932), as amended by section 3, is amended as follows:
If an eligible survivor files a claim for benefits under this part., such survivor wUl
be eligible for benefits if the miner —
(1) was receiving benefits for pneumoconiosis under this part; or
(2) was totally disabled by pneumoconiosis at the time of the miner's death; or
(3) died of causes which were related to pneumoconiosis.
[also change add to Section 4 (b) (o) (2) tne provision that if a remarriage is termi-
nated, then uie widow or widower's eligibility resumes.]
Written Testimony, Senate Subromml t t ee on Labor and Education
Black Lunq Donpflts Restoration Act, S. 1781
The Reverend Darren Cijslinv^n-Wood ,
Pflstor of East Tenth United Methodist Church,
on beiial f of the
Indiana Black Lung Association
March 15, 1994
My name I r. the Reveretid Darren Cusliinaii - Wood and I am writing
on behalf of tlie Indiana Black Lung Association. It has been my
privilege over the past two years to work with them. They have
asked me to express their support for the Black Lung Benefits
Restoration Act (S. 1781) and to encourage you to vote for It.
These miners and their wives are hard working Americans who
devoted their lives to the coal companies. After more than 37
years In the mines, Charles Stark recalls, "When I started I
wanted to follow in my father's footsteps because he was a coal
miner too." Atid yet Charles and hundreds of other Hoosler coal
miners are permanently disabled and killed from breathing In coal
Senate bill 1701 will create a more equitable and humane
process for these men and women to receive the benefits they
deserve. The bill would stop the collection of back pay from
miners whose claims are overturned in the courts. It would also
make it e.ir- ier for widows and survivors to qualify for benefits.
Currently, widows must prove that the cause of death was black
Often tlie issue of repaying back payments and widow's rights
go hand in hand. Thelma Dimmett of Boonville lost her husband.
Bob, in 1980 to black lung disease. Mine years later she received
a letter from the Department of Labor requiring her to pay back
more than $20,000 in benefits.
The Black Lung Benefits Restoration Act would limit the
number of examinations arid interpretations which can be submitted.
Because of the debilitating nature of the disease and limited
financial resources, disabled miners do not have an equal chance
to compete v/ith the coal operators.
Multiple examinations are extremely difficult for these
people. Leonard Lockhart of Linton describes the struggles of
living with the disease,
"I am a retired coal miner of -13 plus years, with
serSour, breathing problems. I have to sleep with oxygen
and at timer, use it daily. Black Lung Is a terrible
diseaL^e. Have you ever been choked and couldn't breath?
That is what we have to try and live with. Can't walk
across the room some days without stopping and gasping
for air. Coughing and spitting up mucous to get airways
open . "
In spite of these struggles, the current system tortures the
victims of the disease. Mary Houchlns of Winslow recalls her
husband Tom's struggles,
"After working 32 years in the coal mines and being
exposed to coal dust, fumes and gases, Tom has been
disabled since 1989 and has been liattling for black lung
benefits since tliat t ime.
'.tiir' time he wnr. asked by the coal ct'inp-iny to travel
126 miles for an evaluation knowing the limit was 75.
Atiothot time an apiiointment was n\ade and the only way v;e
knew of it v/as tlie judge sent a letter granting an
extension of time, due to the earliest possible date for
an evaluation being July 12. We contacted our lawyer on
July eighth and ho phoned the coal company and was told
the appointment was at 1:30pm. When arriving at the
doctor's office Ten was Informed he had been scheduled
for tests at the hospital at 11:30am that morning. The
coal company then notified the judge, we were two and
half hours late for the appointment.
How we are still trying to get the coal compaiw to
pay the bill for that examination and It has been over
eight months now and Welborn Clinic has threatened to
turn us over to an attorney."
Justice delayed Is Justice denied for many miners as they
wait many years for their hearings and benefits. For example,
Herman Klass of Worthlngton first began applying for his benefits
1 2 years ago .
In too many cases tlie Administrative Law Judges an6 the
Drpartmont of Lal)or do not act as neutral parties. Mrs. Hetschel
H,iyr5 of Linton recounts the capricious actions of her husband's
"At this time the doctor and coal company diagnosed him
with this a i iment . . . .he has been in court, with his
lawyer, in Evansville In the year of 1906. The judge, at
this tlmo, ruled he was eligible for payments of black
lung. We have the papers to back this up. As of now
Ihoj, or somoone says, that he isn't completely disabled
to rr-coive the benefits. Now we are wondering wliere the
stipulations or evaluations came (from wliich caused I the
judge to completely change his decision on fi i s ruling of
t;his case. . . .As of now, we are appealing tiie letter we
received from the Department of Labor in order to get
payments started again."
Mr. Mays began filing for benefits In 1985.
Senate bill 1781 would provide Incentives for the attorneys
to give sufficient representation. Right now. It Is very difficult
for minerr; to find attorneys to represent them and often lawyers
"mysteriously" drop their cases when filing fees must be paid. The
bill would make It easier for miners to collect the money needed
to pay their attorneys after an Initial settlement has been
Poor legal r opr cs enl at i on , delays, multiple examinations and
widow's benefits typify Max Beasely's story. Max was from
Jasonvllle and worked in a coal repair shop for over thirty years.
He retired in April of 1982 and received his first denial for
benefits in March of 1983. He underwent over five examinations and
multiple interpretations of his medical records creating a file
over l,Ono pages long.
January 20, 1989 Max's condition met the medical criteria. He
was scheduled for a hearitiq on April 17. On January 23 his
attorney tiotlfied him that his hearing had been canceled due to a
"technicality." January 30, 1989 the coal operator's physician
determined that he did indeed meet the medical criteria. Again, in
April of that year, another physician concurred, but this report
was not mailed to Max's attorney until 1991. In tlie mean time,
Max's attorney dropped his case. Max learned this through the
Department of I.atjor .
lie w,i:5 '=;ciiedu 1 ed for another hearing in Matc'i of 1992, but
it wa? canceled. The family was notified th.it h i l" attorney liad
taken his rar^e .igain, I)ut that all the evidence liad not been
submitted, tta.y died in July of 1992.
The Black Lung Benefits Restoration Act will correct these
problems It amendments are made to sections three and four.
Section three deals with evidence. As it Is currently written, the
bill allows for the use of multiple consultative or Interpretive
opinions by coal companies. We believe that the current wording
would further confuse the situation and perpetuate the unfair
situation which currently exists.
Section four, which deals with widows and survivors, is also
troubling for Hoosler miners. The S<.nate bill adds the phrase,
"unless the miner's death was the result of an event that had no
medical connection with the pneumoconiosis." We feel that this
leaves the door wide open for continued denial of widows whose
spouses were disabled by black lung disease.
The Indiana Black Lung Association believes that the House
version (H.R. 2108) offers better language on these two points,
and v/e encourage the Senate to consider amending S. 1781 to
conform to the House version.
As a pastor, I sen this Issue as a matter of God's justice.
The biblical tradition cslls us to uphold Justice tor all members
of society and to show mercy to the weakest member s- - chi Idr en,
widows and the sick. Paul Orman expresses the deep faith of many
of the victims of black lung disease,
"Aftpr World War Two 1 was real tickled to work i t\ a
coal mine for $6.05 a day.... Wet and bad top, l.ctrlblo
conditions. It got better when we got eight hour
day- union mine;;. I still breathed a lot of coal dust. I
tlmbcrnd, roof boltet, loaded coal. Shot co.al with air.
The next mines I got covered up three times, trapped
over eight hours. We were dug out. Our belief In the
Lord sustained us through this."
Their faith is sustaining them as they wait for our legal system
to work. We must commit ourselves to God's standard of justice to
sustain these men and women who suffer from black lung.
Ed«iii I.. Harper OF AKtERICAN
rre«;i(lenl and RAILROADS
Chief Executive OfHcer
March 23, 1994
Honorable Paul Simon
Subcommittee on Employment and Productivity
Senate Committee on Labor and Human Resources
SD 644 Dirksen Senate Office BIdg.
Washington, DC 20510 6300
Dear Chairman Simon,
The Association of American Railroads (AAR) Is pleased to have the opportunity, to
submit this statement for the record of the f^/larch 15 Senate Labor Committee hearing on S.
1781. AAR is seiiously concerned about the scope of coverage of the Federal Black Lung
Benefits Act (the Act), a law which the Committee is currently considering amending. S.
1781 would amend in respects on which AAR takes no position. However, AAR believes
that this bill presents an opportunity to clarify the scope of the Act's applicability-an action
made necessary by recent judicial expansion of the Acts coverage well beyond its original
The purpose of the Act is to compensate eligible coal miners who are totally disabled
by coal workers' pneumoconiosis, also known as black lung disease. Only individuals who
meet the definition of "miner" under the Act may qualify for benefits. Otiier than the Fund,
only cca! mine "oporatcrs" ere tc be \\zb\e for paying benefits. Although the Act w?c meant
to cover only individuals working in and around mines, recently, a number of railroad
employees have filed claims for benefits under the Act against several railroads.
The Senate has previously recognized that railroad employees who deliver or pick up
rail cats at coal mines or preparation plants might contend they were miners qualified for
benefits under the Act. In connection with the 1977 amendments to the Act, which
ainended the definition of "miner" to include certain "outside men," the senate Human
Resources Committee stated:
Definition of miner. - The term is expanded in the Comtnittee bill
to include additional woikers. Existing law limits the term miner
to "any individual who is or was employed in a coal mine." The
expanded definition in the comtnittee bill includes ... those who
work or worked in a coal preparation facility or who transport
preparation plant workers, for example, are clearly covered as
miners. ... The provision docs not contemplate inclusion of those
workers employed by a railroad, trucking company, or barge line
unless such conipany also operates a mine. Nor does it include
such individuals not directly related to the production of coal
such as coke oven workers. These exclusions are not the result
of any judgment tliat such workers should not be compensated
for occupational diseases - they are merely beyond the scope of
S. Rep. No. 95-209, 95th Cong. 1st Sess. 20-21 (1977).
This language confirms the railroads' belief that their employees were never meant to
be covered under the Act and that the Act's plain language was clear on this point.
However, the Court of Appeals for the Fourth Circuit, has greatly expanded the definition of
operator and miner to include railroads and railroad employees. As a result, in one case a
railroad employee who transported coal from mine sites to preparation plants, over distances
in excess of thirty miles, was found to be a miner and his employing railroad the responsible
operator. The most recent decision found that a railroad employee who transported empty
cars to mines and to coal preparation plants also would be considered a miner (and, again, his
railroad employer would be considered the responsible operator).
AAR considers that a clarifying amendment ts necessary to return the Act to its
original purpose, fvloreover, should S.I 778, which would facilitate recovery of benefits
easier, be enacted absent a clarification excluding railroad employees from the Act's
coverage, railroads will face even greater potential liability than they do today.
Amending the Act to clarify that railroad employees are not miners would not
prejudice any railroad employee who was legitimately injured as a result of exposure to coal
dust. Railroad employees have a comprehensive federal remedy for work-related injuries,
including occupational diseases, under the Federal Employers' Liability Act (FELA).
For these reasons, AAR urges the Committee to include the following amendment as a
new subsection (c) to section 9 of S. 1781:
(c) RAILROADS. -
(1) FEDERAL fv/IINE SAFETY AND HEALTH ACT OF 1977. -
Section 3 of the Federal Mine Safety and Health
Act of 1977 (30 U.S.C. 802) is amended -
(A) in paragraph (d) by inserting following the addition made by section
9(a)(1)(A) and before the semicolon the following:
"(but will not include a rail carrier, as defined in 49 U.S.C. 5 10102 (20), based
on its provision of transportation or transportation-related services at
a mine, coke oven, machine shop or other operation reasonably related to a
(B) in paragraph (g), by inserting following the addition made by section
9(a)(1)(B) and before the semicolon the following:
"(but will not include an employee of a rail carrier, as defined in 49 U.S.C. 5
10102 (20), on the basis that he or she works in transportation or
transportation-related services at a coal or other mine, coke oven or any other
operation reasonably related to the operation of a coke oven)."
(2) BLACK LUNG BENEFITS ACT. - Section 402(d)
(30 U.S.C. 902(d)) is amended by adding at the end the following: "Anything
in the above to the contrary notwithstanding, an employee of a rail carrier, as
defined in 49 U.S.C. §10102 (20), is not a miner within the meaning of this
I woutd be happy to work with you on this matter.
^^J'.^^^ ^j^^ (jB-^y^tiuuJsJL) ^rv^M,^ ^'»*'>-^- <>><^tyW^
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ill 4 ru^ .icvu.^ j/ze /?>^cd^-v /fe^^'^-l^ .^/^oa^'T^
JUlo ^i'^Uxi . fid h oi^i/T-' ciiut . fZo ^ Ji^ act
' / /' 0' 7 '■ _: '
Dear Senator Paul Simon,
My name Is Carl H, Cox, I have worked 26 years In the coal mines.
At the age of 29 I went for a Interview In a Union Mines and
took physicals and did not pass because, they said my lungs were
covered with coaldust and had streaks on them. In I97U, I drawed
Black Lung, I took 60 percent and left UO percent to leave my claim
open, and worked until I986 when I got hurt In the mines, and In
1987, I filed for Black Lung. The two doctors who gave me physicals
for Black Lung In 197'»» I went Baclklto the same doctors and they denied
saying I had BlacK Lung. There Is no way I can fight Rockwooll Because
everytlme I go for a physical they get my X-rays and send them to
20 to 30 doctors, please help pass the Bill S-I78I.
Carl H. Cox
^o- rau I Si fTiCn M-
v^ ojrm au^ oSAsJ Xje_ ctJrTTjy
y^UfULxu rri^ u/CuA,-5 C^iiXd ^Oi^iS
(jJxm-GaJiizP iiujoJ %i^ i>u/YLG /ojDLQXiuS
/>x> H^^ f^^ xX^ --^i------^' -^
Cd^-U) ii-cJ^ "tL^^ A^ >^ ,Kij^-e^ ':n^ M-rM^
^^L^, "-piS/ ^r^^ ^ V?ir^v^. (^Lyi<^U<ro^ ^^-^^^
U^-^^ ^XtJ ]A^zJj jL^^-^t^y-^.^-.^^ "mv*- ^ ;^"^
d' XX^J) ^l-^^J ~iJ^^ (l^->y-.r-^<^^ ^'^f<^-J
LLl. ^.^-^^ a^Uh iL.^ "Ti^^c^JtL. sMz
Dear Senator Paul Simon,
My name Is Steve Pennington, my father has pneumoconiosis,
and I know how he suffers, so please help pass the the Bill S-1781,
I am a 3U year old coal miner and I have a Job In Harlen Kty.
I had to go for a physical the doctor I was sent to said I had
Black Lung bdtM was good for at least 10 nxsre years, but If
I were out of worlrf know, and had to go for another physical for
Black lung he would denie me, because everyone In Southwest Virginia
knows what a crook he is. There Is no way I could pay 20 to 30 doctors
for physicals the way the Insurance company sends X-rays all over
the country to be read by other doctorf. 1 work 6 days a week,
I eat and breath coaldust alKthe time, I risk my life for my family
because, I have a wife, and theee children, a mines Is not Just a hole
In the ground. It Is a place where you crawl on your -hands and knees
from eight to twelve hours a day to make a living. At times 1 crawl
from 1 to 5 miles a day underground. If people In congress would come
down to these coalmines, I would be more than glad to take them Inside.
Honorable; Paul Simon
Onited States Senator.
State of Illinois
Senate office building
Washington, D.C. 20510
March 21, 1994
Mr. Virgil Young
P.O. Box 812
Rockwood, Tenn 37854-0812
Dear Honorable Simon;
On March 15, 94, I read with great interest your currentti./
attempt to assist the Coal Miners of this nation who have
been diagnosed with the killer disease "Black Lung", the
reason for my interest is for the past 25 years I have
assisted coal miners throughout the United States in applying
for their benefits.
In my openion the greatest assistance you and your panel
can do the coal miners is to clean out the Offices of
the Administrative Law Judges there in Washington.
In every case that I have been associated with where the
coal company is represented by the Law firm of Jackson
and Kelly, the coal miner looses any and all attempts
of every avenue they might pursue in getting their claims
through. It has even come to the point in this area to
3 9999 05982 571 9
where you can call an Attorney and ask their assistance
for a miner and the first question out of their mouth
is who is representing the coal company, and when you
tell them that Jackson and Kelly Law firm is on the opposing
team then the Attorney will not take the case because
they already know they will loose the matter before the
administrative Law Judges there in Washington.
The respondents in these matters obtain an order to
compel from the Administrative I-aw Judges Office requiring
that the Miner go anywhere in the United States that
the Respondent's Attorneys ask for additional Medical
Examinations. In one case that I am currentely involved
in the Respondents Attorney has already submitted 7
medical reports from Physicians as far away as Pennsylvania
and now have an order to compel the miner to go an additional
325 miles for another examination .and this miner is
It would be my impression that the law should state
that any miner not represented by an Attorney at Law
that the coal mining company should select an Non-Attorney
to represent their interest as well, or that the Administrative
law judges should be compeled to appoint an Attorney for the
miner at their option.
Mr. Simon 1 am not an Attorney, I represent these coal miners
to the best of my ability until the matters are forwarded to
the Office of the Administrative Law Judges there in Washington
and then I try to find the miner a compitent Attorney to handle
their interest from that point. However as I noted earlier
this has become impossible.
Any improvements that your panel can make in this matter will
be greately appreciated by all underground coal miners everwhere
and anything that 1 can do to assist you or the other members
will be accomplished with haste.
Ufarch 5. 1992
CONGRESSIONAL ULCORD— Extetinont of Remarkt
TUB TRAORDY OF Bt.ACK LUNG
HON. ROBEJIT E. WISE, JR.
or wEjr TinoiKU
W Tmt noims or nRrnrsniTATrvrs
Thuifdav, Hatch S. ;PS?
Mr Wi'iE. Mt. SpeflViH, | wtx/(d fVe to Intro-
(>uc» kx «i<i Pr.cono ■ thlomTil wini^T by
Mil Soutti. t cvisriuinl IirMD Ooarc'l rcV
ViV. Tlio?» *'>o tvavt bOMi irpor-ed to *>«
dovaslnlino •lf»cls o» btirk lucifl leinn how «
Bl'ecl* »>• lv9J <y vlcl'ms and Kioh tofnll'M.
F<y thr-:» *<v} Iwvo r>o( t*en sxp^sed to b-
div<An'' »^lh Mark Im-y. j>'ont'» 'end Mf.
SoiWJ accoijnl of ifttvrt B Is fk* to llv» »illh
Bit? tJis^iWlNQ coivinpn I •nccMnngs my rri-
loaoi'8> k> ''PPP '■''■ Soullit coovrerb In
mlivl as Cortvast i-o(\jl(ior« Imfxjrlanl loglrl*-
9oo ^■'l Yv"1 K^ari tSd Bvm fit Bvyj^noch o4
mkiori erros* Dia HoMcrv
Btatitmct or Mik« Botrrs
To tknse who ir^ me rnl^^r* of this coTirnlt-
Vft. w«. th» llTlnt »pd do»1 Tlctlmt of PUck
t.onr, trp«i»l to Toar SfDM of hoiiwilT.
Thort »ho d" not »anpr fU>m Innf «)"»»«•
t»n In ro wij k"'" th* H'^OT thAt It irata
txirlllpa thron|h. rtmn tou mention a r«r-
ron luffsrlof from loot ais«»^« It Involrn
lb» "boU DiniUr- Ths rr^OM who trl'l to
Uk« o»«r tb» tAjltn oo--* Sr-Bt bj ber bof-
b«od »ho one* dM »11 th» hmrj i>Ky«1cM
Tb» chll4/»n wbo lit aod wntcb th«lr t»-
hrr fAnl <ird »«p fof brsAth from »uch Ilm-
>l« lAskf at eaUi>( nr ip'-tktn|i: »od iht mui
lUnMlf who •ullcn »v>o moto lh»n hli fom-
Ill Kxlltrt In w«j-« ti«t oibuM in»r «'0-
ildw fo^llth, •iiivcl«nT hU wlf« »nl obll-
<r»n. n« ff "U lti»t >!• I« DO loii»»r »o »«»<>t to
ill f»Jnlly ll» cui DO lorK»r nrovldt mont-
luUy for th« tupfr-rt of ht" fsxrillj. til U
voUJntI n» fO»» to doctor*, but with lllU«
•r no resyl'a. for bU lonji worMn wllb tUm.
Il b«k"« bin brKAthliif treitniorti tour
tjnn a diy wid »t»ii on cij»"n »a r«o-
■min#n'1fd hj bl« rhj"'c'»Ji but yet ht illll
"« bU conilUon wor««n >• tlm» rof b»-
Tbcri" %tf Ibn'-s darlnt the lonf bretihleu
i||hU> tJiAt ba 1I«« »wike tblnVinr how
nnch loD|"r b» b»» to «n'1or» tb» ntfdiln*
• Ix floi Uii-oiifh. nnin .'bnn hf «i«r« '«•'
rvtlb and tJ t'kad If h« l> all nibt and ha
sBp-nj-li "ytt". ▼•'b'n In trotb h» o^l^n wod-
«n If Uil" mirht b« bit t»Pt £«>P of lit".
I woild not b« afiald to »»ier fitt not a
?r»oo la t>la twm kDow« mhrt It »• IJX« t»
>l np frcm »7«/ bid and walk 10 ft. to yrur
ifuopm iu>d b* Vtmhlesa Ijofo'^ ron t"t to
la tol'H. To t»k» a •Iio'-er and hav« to rnst
.T«r»I tlrr"a durirt th" tn'^i^'xr*. T" «tep
■it rf tb* Ihrwar and lofo a tblek t«rr»
olli rrb« becKOM Ton birant Iha »T»»lh to
iwd Toor"elf Irr. And, rbsn yon irrv. It
-ems like It takes fot«»«r to pall on yoor
<ni>ra and afpocUlIy to try to tie yoor
T>» Io»>glnr to be able to do it l^^st a
■yUcotn of the tbiog" Uia' yon nerd to do In
•e i«-t bf fere deeth lock hold '^ imr life,
•low and a«on'ilnf d»«lh th«t i^kre awey
■ iPtnT o( I'fe'e tlinplf plramrt^. Mot t-^lof
> to Pl«y wlHi yciT oMldren or r'^t. The
« ond rnuioo t>«t waa f) r<acb a t«rt of
•or life hae b««n replac»d by iedi<nt»ry *e-
Many breatiilr^t boori are er«nt IrTlnn to
do ta-'Va that u»ed to taVe nijpof t lo ao-
cnmpllah. t"> moro colUn» the Uwo, *«caii5e
yea tatiDot puah, or even l<>ft. walk tyhlod
the mower. Malrtenance on the care and
borne !• rrol of th* question.
Your ll'e now ton«i«i« of oijTen lublnj
•rd Ita 60 n. lUe lloe. A Itne that yo'i oarae
day aft»r dny. Yoor world consult* of a '0 ft.
ta-lliia In whl'Ji ycfl dra« your ll'e line like
»a eii«n»l"a oord. A cord that roa aoma-
UroM wlib were afacbed to the oral oon>-
pBjiy eie':utlTPe and mirnheri of the Dfpart-
inent of labor.
If only tbry rould rpand M houra la lour
thoaa. To let a lajta of how werlbUe" aod
tifelaaa your existence la. I wonder U than
they Boold ch»o«e ijinlr attitude towards
thru who lofTar from Inof dl-ieaee.
1 think DoU They alt back and take their
aralh'Ue lUnca boplni the »lcUmi will die
b^loie any niark Lun» rlalm le a-tlled And
wiien me Tictlin 4l^e ibe claim toei with
bim. for the widow el*nd» no thaoce to ptov*
the ailatance of lllack Lunf In ber dead
The pullee Involved know the bard'hlja
and Tcara that are apfot trylnt to prore that
Oiey ara the 'walklMr dead".
Borne men ej^nd anywhere from eight to
t1it»flD yeara txiof ahufOed from doctor to
doctf* t^ylnir to cblaln efldoooa tliat cnra-
pary doolora cay doM not e»|nL t o'ten won-
dar how tbfie phyelcKn* can ale-p at Dlfbt,
but T fueea Ibey Juat "blanket- thenveWaa
with the money tlren them by the coal com-
Jt haa to be the lor* of ncoey and itree<J
thit fuale thwe pbjalrlaoa ard tonip<volea,
for conifv-nlon haa no part to pity. Ilomaa
tutfrrlor (phyelcaJ) la auppo»<»<l lo he allevi-
ated by the heatlDf ooinp/>anloDat» banda of
a phyatclan; loal'ad. theae hande ara eulned
"»r»en" f>om the dyea of money and rreed.
Thie lUIn hae put many a miner Id an
early «ra»e. A italn th«t baa ipfad and en-
fulftd a whole nation that hjj tarned tt«
back on the aufferlnf that etlilj In the
•death" of a miner. A "death" that mean*
noOitni to any one except »J>e min'r'e faniUy
and frtenda. A nation that haa put a men OD
the moon aod won ooartle'i ware, yet the
ntlnrlnr itlll coallnuaa for the coal miner.
A miner wh- haa helped In all the eod"aTori
thU coanty baa jni* forth. Yet when be t«
down with lalJad health. h» U apurned by the
nation that be h»lp«d lead to lO'Jl rrealnaai.
A ration that la oomflacent In It* attitude,
that It doei not afleot me. It do«« not eilst.
To the powere thttbe; listen I beseech jott.
Taka a walk In r\y weary ahoei and paea HB
1M7: for without It 60"JiUe»a ounbra of d»-
aerrlnr men and their famJMei wUl anHer la
the Q'^armlr* "' "'1 '*r« InrolTed In the
present iTafm. A ayatara eatabllahed for the
bebaat of '-'s bi'BlrTf a-^ Sit tie men, with-
out whom they woaJd not "ilat.
And. *a they reap their enormous profits,
they hire lawyers to protaot tb-lr rreed. A
iresd thet doea not eorompeea comraaa'oa
for the men who dJa for their dotlara. do, to
reality, th"y trade "dollars for death" and
think none the I'M for It Has the nation b»-
coms 10 o'Uoua that ere»J oreirldPS ertry-
thlni that la aurn'** to b« the mak»-6p of
human eiletenceT Dva c->mmon dec«Doy ard
compassion |on« by the way of the rrareJ I
would hope not, Irit trora ray point of »lew.
It hM: for It aaema that the pittht of ths ooal
miner le fbrerer to eilft lo poterty and euT-
Could thla dlitlrrulihed bMy ejlat on tfiOO
a roontbT I think not. Yet, that U all lbs
monthly b«r«ata tbat a miner reoelves from
Black Lunt. ftome |so'l«roen pay 1600 or
more for their aulta, yet a miner la aaked lo
Birvlve a month on that amount-
M'mbare of Conrreaa lay they cannot au»-
Uln their llf^atyle on leii than 1118 thoa-
aand dollars a year.
Slip on my alia ! ibc"a and lire on rnj
yearly Income, and 'Jien aak for a raise. It
cornea to m'nd ths worda, "I once ooot-
plalnad of no new ihoea, till 1 aaw the man
who had no feet".
Bo remsmMr, wl'iout tool lm»a Km can-
not perform yoir dally laaka, for without
thern the rft cf ep«e-.b meane nolhlnir Tajj
an ISJT and let thoes who de»ar.» th'lr rltht
to breath, breathe a little eailer. Thank yoa.
Senator SiMON. We thank you very much for being here. Our
hearing stands adjourned.
[Whereupon, at 12:15 p.m., the committee was adjourned.]