The Black Lung Benefits Program

The Black Lung Benefits Program

Order Code RS21239
June 12, 2002
CRS Report for Congress
Received through the CRS Web
The Black Lung Benefits Program
Edward Rappaport
Analyst in Industry Economics
Domestic Social Policy Division
Summary
The federal black lung program (codified at 30 U.S.C. 901 et seq.) provides
medical and income assistance to coal mine workers who suffer disability or death due
to pneumoconiosis and related diseases. One of the goals of the program was to make
benefits more readily available than they might be under state workers compensation
laws. Thus, it uses certain streamlined rules of evidence, but pursuing cases can still be
rather involved. A trust fund, supported by a tax on coal, was established to finance the
benefits, but the fund has chronically been in deficit. The Treasury Department has
proposed a refinancing that would eventually extinguish the accumulated debt. This
report will be updated should significant legislative actions occur.
It has long been known that working in coal mines was associated with lung
disorders, but official recognition of a specific disease caused by coal-dust – coal workers’
pneumoconiosis (CWP), now widely known as black lung – first came in 1942 in the
United Kingdom. CWP occurs as dust particles accumulate in the lungs. The “simple”
stage entails a reduction in lung function. If it progresses to the “complicated” stage,
scarring and degeneration of the lung tissue occurs, physical activity becomes very
difficult, and the disease becomes progressive and irreversible.
After the scope of the problem in the United States was highlighted by studies in the
1960s, and after a major mine disaster in Farmington, WV, Congress passed the Federal
Coal Mine Health and Safety Act (P.L. 91-173) in 1969. (Together with subsequent
amendments, the benefits program is codified in 30 U.S.C. 901 et seq.) In addition to a
comprehensive safety enforcement regime, the Act mandated limits on miners’ dust
exposure and provided income and medical support to those who become disabled by
black lung. Dust control has yielded some success in a reduction of new cases, but nearly
5,000 new claims are still being received each year and more than 60,000 primary
beneficiaries remain on the rolls.
Congressional Research Service ˜ The Library of Congress

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Benefits
Former miners who suffer total disability or death due to CWP or related diseases
are eligible for medical and income benefits. The medical benefit consists of diagnostic
testing (available for all claimants) and services needed due to the disease, including
drugs, durable medical equipment, home nursing visits and hospitalization. The base rate
of the income benefit is equal to three-eighths of the federal salary for an employee in
grade GS-2, Step 1, i.e., a base rate of $518 per month in calendar year 2002. The benefit
is augmented if the miner (or his survivor) has dependents, up to as much as double the
base rate when there are three or more dependents. Black lung benefits are not subject to
federal income tax but may be taxed by the states. The benefits may be subject to offsets,
depending on when the initial claim was made, against various other income support
systems such as workers compensation, disability insurance and Social Security.
The program is administered by the Division of Coal Mine Workers’ Compensation,
which is a component of the Office of Workers’ Compensation Programs in the
Department of Labor.1 Decisions can be appealed to the Office of Administrative Law
Judges, then to the independent Benefits Review Board, and finally to the U.S. Courts of
Appeal.
Eligibility
Definition of Black Lung
Defining and diagnosing the medical conditions that should qualify one for
compensation have been contentious issues throughout the legislative, regulatory and
adjudicative history of the program. The statutory definition of black lung is less specific
than the currently accepted medical criteria for CWP. The law makes a person eligible
if one has “a chronic dust disease of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment” (30 U.S.C. 902(b)). This
clearly includes clinically-defined CWP but it could also include chronic obstructive
pulmonary disease (COPD), e.g., bronchitis, emphysema or asthma. While CWP is
almost always associated with mine employment, COPD has many other common causes,
including smoking. The current Department of Labor regulation (20 C.F.R. 718.201)
explicitly allows for COPD to be compensated as black lung, but the Department
emphasizes that the burden of persuasion lies with the claimant to show that the disease
arose out of his coal mine employment.
Another point of contention has been the requirement of being totally disabled due
to pneumoconiosis. The difficulty, again, is that other causes may lead to the disability
in question. The current regulation (20 C.F.R. 718.204) requires that, if a miner with
black lung also has a disabling impairment unrelated to mine employment, then the black
lung must at least be a substantially contributing cause of his disability.
1 In FY1998 responsibility for managing “Part B” claims (those originating before June 30, 1973)
were transferred from the Social Security Administration.

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Evidence and Procedure
One of the motivating factors behind the black lung program was to overcome what
were perceived as the burdensome evidentiary requirements of state workers
compensation laws. In support of this objective, the Act mandated five presumptions to
facilitate the consideration of claims, two of which still apply to new claims (generally
those filed after 1981). These are: (1) that if a miner suffering from pneumoconiosis was
employed for 10 years or more in coal mines, then there is a rebuttable presumption that
his disease arose out of that employment, and (2) that if a miner suffering from a chronic
dust disease of the lung meets certain diagnostic standards by X-rays, biopsy or autopsy,
then there is an irrebuttable presumption of qualifying total disability. (30 U.S.C. 921(c))
Moreover, the definition of total disability is less stringent than in most other laws. A
miner is considered totally disabled if black lung prevents him from engaging in his usual
mine employment. (30 U.S.C. 902(f)(1))
The criteria in the Act and amendments have been further elaborated by
administrative and judicial cases and by regulation. In December 2000, the Department
of Labor issued the first comprehensive revision of its regulations for the program since
1983.2 The standards in regard to “evidentiary development” now provide that:
! The claimant is entitled to a complete pulmonary evaluation performed
by a physician of his choice from a list of qualified specialists;
! Both sides (claimant and mine operator) are limited in how much medical
evidence they may present: two each of chest x-ray interpretations,
pulmonary function tests, blood gas studies and medical reports. Also
one of each category of evidence may be submitted by each side in the
rebuttal phase;
! The testimony of the miner’s treating physician may be given additional
weight if he/she is adjudged to have in-depth understanding of the
miner’s condition;
! In testing pulmonary function, it is mandatory to use the flow-volume
loop method (spirometry testing); and
! If a claim is denied, a subsequent claim may be made a year or more later
if matters have changed, e.g. the miner’s condition has worsened.
It was expected that the changes of 2000 would lead to an increase in the number of
successful claims, but it is still too early to quantify any such effect. According to the
United Mine Workers, only 7% of claims were being accepted under the previous
regulations.
2 The regulations were stayed upon a court challenge by the National Mining Association, but the
stay was lifted and the regulations upheld in a ruling on August 9, 2001. Billings, Deborah.
Court Upholds New Black Lung Rules. Daily Labor Report, August 10, 2001. p. A-11,A-12.

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Financing and Administration
Evolution of the Program
Virtually all of the expectations for the Black Lung Benefits Act3 when it was
enacted in 1969, e.g., the numbers of claims submitted or approved, were contradicted by
subsequent experience. Corrective legislation was adopted in 1972, 1977 and 1981,
including the establishment of trust fund financing in 1977, but results have continued to
be at variance with expectations. As a consequence, the trust fund has perennially been
in a position of growing deficit.
The program initially provided a “Part B” benefit intended to deal with existing (or
even deceased) cases caused by prior years of coal dust exposure. Part B was funded by
general revenues and administered by the Social Security Administration. It was expected
that most states would bring new black lung cases into their workers compensation laws
in accord with general standards of the new federal law.4 The number of new cases would
rapidly dwindle due to the dust control measures mandated by the mine safety act, and in
the interim a federal “Part C” benefit, administered by the Labor Department and funded
mostly by the employers of the claimants (“responsible operators”), would serve as a
temporary backstop. What happened, though, was that claims were much more numerous
than expected, while it proved difficult to find responsible operators, litigate their
challenges, and collect from them. Even so, the rate of claim rejections was high enough
to produce widespread dissatisfaction and elicit a liberalization of criteria via the 1972
and 1977 amendments.5
In response to these developments, trust fund financing was established in 1977 to
reduce reliance on the Treasury and make the mining industry cover the lion’s share of
costs. This was done by levying a tax on coal production.6 Interestingly, the program
then had in place a financing mechanism which was mirrored a few years later in the
much larger environmental program known as Superfund: recovery of costs so far as
possible from “responsible parties,” backed up by a general levy on the industry. Still,
costs continually outpaced revenues.
3 Title IV of the Federal Coal Mine Health and Safety Act, P.L. 91-173.
4 To date, no state has been found to provide “adequate coverage.” The most recent formal
finding to that effect is in the Federal Register, December 20, 2000. p. 80,054.
5 The 1981 amendment reversed that trend, making claims harder to sustain.
6 At present, the tax is $1.10 per ton for underground-mined coal, $0.55 for surface-mined (or
4.4% of the sale price if that is less).

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Financial Results
As shown in Table 1, the population of Part C beneficiaries7 on the rolls has been
declining by about 5% per year over the last decade. The decline has resulted from a
combination of declining employment in underground coal mining, better control of dust
(hence fewer new cases), and passing away of older beneficiaries. The generational
transition is evident in an almost-stable population of widows. As miners have died,
women have been transferred from dependent to widow status. But, since peaking in
1993, even the widow beneficiary ranks have been decreasing.
Table 1. Number of Part C Beneficiaries (September 30 of each
year)
Dependants
Miners
Widows
and others
Total
2000
24,568
39,053
21,289
84,910
1999
24,838
40,517
23,361
88,716
1998
27,340
41,585
25,563
94,488
1997
29,839
42,468
28,045
100,352
1996
32,452
43,155
30,316
105,923
1995
35,220
43,688
32,861
111,769
1994
37,970
44,073
35,526
117,569
1993
40,866
44,103
38,244
123,213
1992
43,723
43,967
41,071
128,761
1991
46,450
43,831
43,924
134,205
1990
49,306
43,404
47,144
139,854
--
--
--
--
--
avg. annual rate
of decline
6.7%
1.1%
7.6%
4.9%
Source: U.S. Department of Labor. Employment Standards Administration.
Table 2 shows the factors leading to a growing indebtedness of the trust fund to the
Treasury. Each year the expenses of the Part C program (benefits, administration and
interest) have exceeded revenues, with an advance from Treasury making up the
difference and accumulating as a debt. Interestingly, though, in almost every year of the
7 The older, Part B benefits are financed from general revenues rather than the trust fund, and
totaled $509 million in FY2000. As of 2000, there were 89,000 Part B beneficiaries, including
12,000 miners and 62,000 widows, more than 80% of whom were over 75 years of age.

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last decade, direct costs (benefits and administration) have been less than revenues. If it
were not for interest on the accumulated deficit, the trust fund would be self-supporting.
In effect, the annual advances from the Treasury are being used to pay back interest to the
Treasury, while the debt has been growing as if with compound interest.
Table 2. Growth of Black Lung Trust Fund Debt
($ millions)
+
+
+
Fiscal
Debt, 1
Benefit
Administrative
Interest
-
Debt, 30
Year
October
costs
costs
charge
Revenues
September
2002
7254
388
55
593
594
7696
2001
6749
393
52
568
536
7254
2000
6259
423
50
541
525
6749
1999
5857
439
51
515
604
6259
1998
5487
459
46
495
645
5857
1997
5112
488
46
471
626
5487
1996
4738
500
47
445
623
5112
1995
4363
526
52
419
620
4738
1994
3949
554
53
388
578
4363
1993
3606
562
56
367
644
3949
1992
3266
575
56
342
635
3606
Source: U.S. Department of Labor, Employment Standards Administration
The Treasury Department has proposed restructuring the trust fund’s debt so that it
could eventually be extinguished.8 The plan is to convert the debt into a series of zero-
coupon bonds payable from the trust fund to the Treasury. The bonds’ implicit interest
rates would be lower than the rates on the current debt (because rates generally have fallen
in recent years). In order to reimburse the Treasury for receiving less interest than
currently scheduled, a one-time appropriation would be made. (It is presumed that the
one-time appropriation would not trigger budgetary “pay-go” limitations because it would
be only an intragovernmental transfer.) Treasury projects that coal tax revenues at current
rates would be adequate to eventually pay off the bonds (if the tax were extended past its
currently scheduled expiration of 2014).
8 Originally proposed in October 2000, the plan was again broached in the budget justification
document for the black lung trust fund for FY2003.