oversight

Program To Pay Black Lung Benefits to Coal Miners and Their Survivors, Improvements Are Needed

Published by the Government Accountability Office on 1977-07-11.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                                                                    i-l&3-77      -9-J
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REPORTTOTHESENATECOMMITTEE
ONHUMANRESOURCES
BY THE COMPTROLLER GENERAL,
OF THE -UNITED STATES  ~~l~l~lll~~~l~l~                                   LN1103049




Program To Pay Black Lung
Benefits To Coal Miners
And Their Surwivors-
Improvements Are Needed
Departments   of Lab
He&h,   E&k&ion,    and Welfare                            flz*
                                                    /Hi”
The Department      of Labor is not achieving
the results intended     by the Black Lung
Benefits Act of 1972. Labor has been slow
in adjudicating claims, has approved relative-
ly few claims, has paid out little in benefits,
and has a large backlog of claims.

Insufficient  staff is a major problem contrib-
uting to the delays in claims processing.
However,     many internal administrative    pro-
blems could be alleviated by improved man-
agement controls.      GAO is making      recom-
mendations    to improve staffing and program
management.      Labor generally concurs with
GAO and is undertaking      improvements.

GAO       is also recommending        that the Con-
gress    consider amending       the act to (1) re-
move       the 3-year filing requirement       which
denies     otherwise eligible miners or their sur-
vivors     benefits under the act and (2) permit
Labor      to use “Interim    Standards”   in adjudi-
cating     black lung claims.
HRD-77-77
                       COMPTROLLER     GENERAL     OF   THE   UNITED   STATES
                                     WASHINGTON.    D.C.   20548




     B-167015

     The Honorable Harrison A. Williams,  Jr.
     Chairman, Committee on Human Resources
     United States Senate                         dJ"
                                              sb'
     Dear Mr. Chairman:
            Pursuant to your                        later   agreements with
     your office,                             the   black   lung compensation
     and benefits    program for coal miners and their              survivors
     established    under the Federal Coal Mine Health and Safety Act
     of 1969 (30 U.S.C. 801).             We primarily    reviewed Department
     of Labor actions       in processing       claims and and the success Labor
     was achieving     in meeting the intent           of the 1972 amendments
     requiring    expedited    eligibility       determinations     and benefit
     payments.
            At the time of our review, extremely      long periods                 elapsed
     between the time claims were filed        and when they were                finally
     adjudicated--   approved or disapproved.      In fiscal year                1975'     .
     the average processing     time was 256 days for denials                   and 366
     days for approvals.      By fiscal  year 1976 the average                  processing
     time for all claims had increased       to 630 days.
            From July 1, 1973, when it assumed responsibility         for
     the black lung program, through June 30, 1976, Labor received
     92,727 claims.     Yet, as of June 30, 1976, it had adjudicated
     only 42,281 claims and had a backlog of 50,446.            As a result,
     in the first    3 years of the program, Labor obligated        about
     $22.5 million--   out of the $83 million    appropriated--in      com-
     pensation    and medical benefits  to disabled    miners and their
\k   survivors.

I           According     to officials     of Labor's     Office of Workers"
     Compensation Programs responsible            for administering       the pro-
     9-h     sufficient       staff  has  not been   provided    to  meet   the
     claims workload.          In June 1976, because of its concern with
     the program, the Congress took the initiative                 and authorized
     30 new staff       positions.      (However,   in  fiscal   year  1977 Labor
     allocated     10 positions      to the longshoremen’s       compensation
     program because that program had a claims backlog.)
            We noted internal   administrative     problems in the black
     lung program that could be alleviated         by improved management
     controls.     These problems included     slow claims processing
    caused by piecemeal             and cumbersome          procedures;       delays     in
    informal     Labor hearings            of contested        claims    and formal
    hearings     by the Office           of Administrative           Law Judges;      lack
    of effective         guidance      to claimants;          and ineffective        action    by
    Labor’s     national       office      to alleviate        the internal       and staff-              .
    ing problems.           Also,     more claimants          could    be given     a chance
    to qualify        for benefits         if Labor revised          its processing
    procedures        to have X-rays          reread    for miners       whose X-rays       are
    initially       interpreted        as negative        for pneumoconiosis.
            We are recommending      that   the         Secretary  of Labor review
    Labor’s    allocation     of resources.             We are also making several
    recommendations       to the Secretaries             of Labor and Health,
    Education,      and Welfare    to correct           management  problems.    (See
    pp. 52 and 53.)
            Since Labor assumed responsibility                      for black       lung benefits
    in July       1973,    it   has    not    been  allowed     to    use   more    liberal
\   “Interim        Standards”        adopted     by the Social         Security      Administra-
    tion     for determining           disability       and eligibility          for benefits.
    Using the Interim             Standards       would make more young miners                 or
    their      survivors      eligible        for benefits.
            We are recommending            that   the Congress       decide   whether    the
    program      should    be expanded        to include    these additional         miners.
    If so, Labor should            be directed       to substattiate        by medical
    evaluation,         as intended      by the Congress,         the degree    of func-
    tional     disability       preventing      claimants     from working.        (See
    p. 54.)
           Also,    the act’s        present      3-year     filing   requirement        results
    in Labor denying         many claims          for widows and miners             who would
    otherwise     be eligible.           We are recommending            that     the Congress
    consider     amending      the act to delete             the requirements         that
    living    miners   file      claims      within     3 years of the date of their
    last   coal mine employment              and that widows file            within     3 years
    of the husband’s         death.        (See     p.  54.)                                        A,,

          Officials     of the Departments    of Labor and Health,                       Educa-       1
    tion,   and Welfare     generally  agreed with   our conclusions                      and
    recommendations       and promised  to take corrective     action.                    (See
    p. 53.)




                                                  2
      B-167015



           As you know, section     236 of the Legislative        Reorganiza-
    tion Act of 1970 requires       the head of a Federal agency to
*   submit a written     statement    on actions   taken on our recom-
    mendations     to the House Committee on Government Operations
    and the Senate Committee on Governmental Affairs              not later
I   than 60 days after the date of the report and the House
    and Senate Committees on Appropriations           with the agency's
    first    request for appropriations      made more than 60 days after
    the date of the report.        We will be in touch with your office
    soon to arrange for distribution         of the report to the Secre-
    taries    of Labor and Health,     Education,    and Welfare;    the
    Director,     Office of Management and Budget; and the four Com-
    mittees     to set in motion the requirements        of section    236.




                                            Comptroller  General
                                            of the United States




                                        3
    COMPTROLLER GENERAL'S REPORT                        PROGRAM TO PAY BLACK LUNG
    TO THE SENATE COMMITTEE                             BENEFITS TO COAL MINERS
    ON HUMAN RESOURCES                                  AND THEIR SURVIVORS--
                                                        IMPROVEMENTS ARE NEEDED
                                                        Departments   of Labor and
                                                          Health,   Education, and
                                                          Welfare
                DIGEST
                ------
                How effectively        and efficiently         does the
                Department      of Labor's     Office     of Workers'
                Compensation       Programs operate         the black
                lung compensation        and benefits         program for
                coal miners       and their    survivors?         In at-
                tempting    to answer this question,              GAO
                placed particular        emphasis on reviewing
                Labor's    actions     in processing       claims
                for miners and their         survivors        and Labor's
                success in achieving         the intent         of the 1972
                amendments to the act.
                Black lung,     a chronic          disease,      has the
                medical    designation        coal workers'           pneumo-
                coniosis.      The Congress,           in   enacting      the
                Federal    Coal Mine Health            and Safety        Act
                in 1969, intended          to provide         benefits      to
                miners disabled        by black lung and survivors
                of miners who died from the disease.
                Amendments to the act in 1972 increased
                benefits    and coverage           and added new standards
                to ease the burden of proof                 facing     claimants
                in establishing        eligibility          for benefits.
                However,     the law's      3-year    filing    requirement
h               has resulted       in Labor having to deny many
                claims    for living      miners and widows who
l
                otherwise      would be eligible,           as shown in
                this   report.       Accordingly,        if the Congress
                wishes to provide         such claimants        with an
                opportunity      to qualify       for benefits,       it
                should again amend the act as specified
                on pages v and 54.
                The intent      of the amendments was to expedite
                determinations       of eligibility and black lung
                benefit     payments to miners and their    sur-
                vivors.      (See p. 2.)

                                                                                   HRD-77-77
    Tear Sheet.  Upon removal,   the report
    cover date should be noted   hereon.
The Labor     Department       is not achieving                           the
results    contemplated        by the act and                        its
amendments.        Its  Office    of Workers’                        Com-
pensation     Programs

--has      been     slow        in     adjudicating            claims,

--has      approved           few      claims,
                          4
--has     paid      out       little          in   benefits,        and

--has     a large          backlog            of   claims.        (See     p.   7.)

Labor    agreed     that  GAO has identified           many
shortcomings        in the black     lung program
and concurs       in GAO’s basic       assessment        that
it takes      too long    to process      claims.        Labor
also    agreed   with    GAO’s recommendations             set
forth    below   and is responding          accordingly.
(See p. 53 and app.         I.)

Labor      originally          set a goal         of 98 days for
processing           claims     and later         revised      this     to
180 days.            However,      Labor      failed      to meet
either       goal.        GAO’s review          of 197 claims
approved,          disapproved,          or in process           as of
March 31, 1975,              showed      that     average      process-
ing time was 256 days for                     denials       and 366
days for         approvals.          In addition;           Labor
task     force       reports      showed that          in fiscal
year     1976 the average              processing         time     for
all    claims        had increased          to 630 days.
(See p. 8.)

From July      1, 1973,     when it assumed        responsi-
bility   for     the black     lung program,       through
June 30, 1976,       Labor     received     92,727     claims.
As of June 30, 1976,           it had adjudicated--
approved     or disapproved--only           42,281    claims
and had a backlog         of 50,446     claims.        (See
P* 7.)
As a result        of its    slow processing       rate,
Labor      in the first      3 years   of the program
obligated       only   about    $22.5  million     (just
over     27 percent)--     of the $83 million          ap-
propr iated--       in compensation      and medical
benefits      to disabled       miners   and their
survivors.


                                         ii
                 Because of the low benefit            payout during
                 fiscal     years 1974 and 1975, Labor transferred
                 $41 million       to the Federal      Employees'      Com-
                 pensation      Program,   transferred      $2 million
                 to cover Employment         Standards     Administration
                 salaries      and expenses,     and returned       $11.4
                 million     to the U.S. Treasury         because the
                 appropriations        had lapsed.      At the end of
                 fiscal     year 1976, Labor carried          over $6.1
                 million     of the $20 million        appropriated       into
                 the transitional        budget period      July to Sep-
                 tember 1976.         (See p. 10.)
                 Several     management problems    and other      factors
                 contributed     to Labor's    slow adjudication
                 rate and increased       claim backlogs,      such as:
                 --Problems      with inadequate   development      of
                     individual     claims  by the Social   Security
                    Administration.        (See ch. 3.)         ,-
                 --Slow   claims   processing  by Labor caused by
                    piecemeal    and cumbersome procedures.    (See
                    ch. 4.)
                 --Delays     in the informal     Labor hearings         of
                    contested    claims    and formal  hearings         by the
                    Office    of Administrative     Law Judges.           (See
                    ch. 5.)
                 --Lack    of effective       assistance      by Labor and
                    the Social      Security    Administration       to
                    claimants    filing      benefit    claims.     (See
                    ch. 6.)
                 --Failure    of Labor's   national      office     top
                    management to take effective           action     to
                    alleviate   the program's     staffing       problems.
P                   (See ch. 7.)

l
                 More claimants      could be given a chance to
                 qualify    for benefits      if Labor revised        its
                 processing     procedures      to have X-rays      reread
                 for miners whose X-rays          are initially       inter-
                 preted    as negative     for pneumoconiosis.            A
                 Labor study showed that 5 percent              of X-rays
                 reread were upgraded         from negative       to simple
                 or complicated      pneumoconiosis       or from simple
                 to complicated      penumoconiosis.          (See p. 20.)

    Tear Sheet
                                              iii
According      to the Office       of Workers'     Compen-
sation    Programs,      it never has received         enough
start   to nandle the workload           and backlog      of
claims.      In fact,      the Congress    in June 1976
took the initiative           and, without     a request
from Labor,      authorized       30 new staff    positions.

Labor officials      suggest  that the following
other factors      contribute   to the current     ad-
judication     rate and increased     claims   process-
ing workload.
--Unlike     other workers'       compensation      programs
   under which evidence         is collected       by em-
   ployers    or their    representatives        (for ex-
   ample, insurance       companies),      Labor has
   assumed responsibility          for collecting
   virtually     all of the claimant's         evidence.
--After    initial      determination        and after
   claims    are served upon responsible              coal
   mine operators,         who contest       about 97 per-
   cent of the claims,          they often       undergo
   a second investigation            including     a repeat
   medical     evaluation.
--The act does not provide              a means for com-
   pensating     differences        in disputed         cases,
   such as through        partial     disability          bene-
   fits   or lump sum settlements,               and thus
   disputed    claims     must be formally           litigated
   to resolve     contested       issues.        (See p. 11.)
According     to Labor officials,         the rate of
claims    approval      is affected    by other factors
beyond their       control.       (See pp* 42 and 47.)
                                                                  4
Labor also claims          that its approval          rate is
affected    by the Office         of Management and
Budget's    requirement        that it not use the                l




more liberal      "Interim       Standards"       adopted
by the Social       Security      Administration         for
determining     disability        and eligibility          for
benefits.      (See p. 45.)




                               iv
             RECOMMENDATIONS TO AGENCIES
             -------------
             The Secretary     of Labor should allocate            adequate
             resources    and staff     to effectively      carry out
             Labor's   responsibilities       under the Federal         Coal
             Mine Health    and Safety     Act.      GAO also    recommends
             that Labor:
             --Review      its claims-processing            system     to   reduce
                delays     between processing           steps.
             --Establish     timeliness          criteria    for     completing
                the informal      hearing        process.
             --Determine    the feasibility     of having all X-rays
                reread so that claimants       whose X-rays  are
                interpreted    as negative    be given every
                opportunity    to qualify   for benefits.
             --Establish       an effective       program     to respond
                promptly     to claimant       inquiries      on the status
                of their     claims.       (See p. 52.)
             Concurrently,         the Secretary        of Health,        Edu-
             cation,    and Welfare         should direct         or require
             the Social        Security     Administration         district
             offices    to follow        prescribed      policies        and
             procedures        in processing        Labor's     black lung
             claims.        GAO recommends further              that a
             feedback      procedure      be established          so that
             district      office     personnel       will    be made aware
             of deficiencies           and problems        in their     per-
             formance.         (See p. 53.)
             The Social     Security      Administration        also agreed
             that its district        offices      have not always
             followed    prescribed       procedures      in processing
             black lung claims        for Labor.         Social    Security
             also has taken or plans to take actions,
             in consonance       with GAO's recommendations,
             to improve the district           offices'      claims
             processing.        (See p. 53.)
             RECOMMENDATIONS TO THE CONGRESS
             Specifically,        section   422(f)(2)   of         the
             Federal      Coal   Mine Health    and Safety           Act



Jear Sheet                                   V
should      be amended        to delete          the requirement
that    living      miners      file     within      3 years       of
the date        of their      last      coal mine employment
to be eligible           under       the 15-year       rebuttable
presumption          and section          422(f)(l)      should
be amended to delete                 the requirement          that
widows      of miners       determined           to have been
totally       disabled      from pneumoconiosis               file
within      3 years      of the date           of the miner’s
death.

Also,       the Congress         should      decide    whether      to
amend the act to permit                   Labor     to use the
Interim        Standards       in adjudicating          black
lung claims.              If Labor      is authorized        to use
the Interim           Standards,        it should      be directed
to take        care     to substantiate           by medical       evalua-
tion      the degree         of the functional          disability
 inhibiting         claimants,       especially        younger
miners I from working.                  (See p. 54.)




                                     vi
                          Contents
                          --
                                                          Page

DIGEST                                                     i

CHAPTER
   1      INTRODUCTION                                     1
              Eligibility    requirements        for
                 benefits
              Compensation     and other benefits
              Administrative     responsibility
              Program administration
              Program administration          expenses
   2      SLOW ADJUDICATION      OF CLAIMS    FOR BLACK
            LUNG BENEFITS                                  7
              Increase    in claims   backlog              7
              OWCP slow in processing        claims        8
              Payment of compensation        and
                 other benefits                           10
              Factors   affecting   the processing
                 of black lung claims                     11
   3      SSA DISTRICT OFFICES NOT ADEQUATELY
            DEVELOPING LABOR BLACK LUNG CLAIMS            13
              OWCP and SSA analyses         of problems
                 at district      offices                 14
              GAO's review      at SSA district
                 offices                                  15
              Proposal     to relieve     SSA of its
                 duties                                   15
   4      OWCP'S PROCESSING PROCEDURES CONTRIBUTE
            SIGNIFICANTLY TO DELAYS IN PROCESSING
            CLAIMS                                        17
               Initial      processing                    17
              Review and evaluation       of medical
                   evidence                               18
              Review of nonmedical       evidence         20
              Examples of delays       in OWCP claims
                   processing                             21
              Delays in initiating       benefit
                   payments                               25
                                                              Page
                                                              ----
CHAPTER
   5      DELAYS IN CLAIMS APPEALS PROCESS                     26
              Delays by OWCP in completing            the
                 informal     hearing  process                 26
              Time frames for formal         hearings
                 by OALJ                                       28
              Appeals      to Benefits  Review Board           29
              Ruling      by Board temporarily
                 prohibited      use of hearing
                 officers                                      30

          CLAIMANTS' ASSISTANCE PROGRAM                        33
               Assisting claimants    in filing    claims      33
              No communication     on status    of claims      34

          LACK OF EFFECTIVE ACTION BY LABOR TO
            ALLEVIATE STAFFING PROBLEMS                        35
              Requests    for OWCP staffing                    35
              Future   staff  needs                            40

          FACTORS AFFECTING THE DENIAL OR APPROVAL
            OF LABOR BLACK LUNG CLAIMS                         42    ’
              Residual   claimant      population      '       42
              Lower dust levels         in coal mines          43        ”
              More stringent        medical    standards
                 used on Labor claims                          43
              GAO review of SSA application              of
                 Interim   Standards                           45
              Three-year     filing     rules                  47

          CONCLUSIONS, RECOMMENDATIONS, AND
            AGENCY COMMENTS                                    50
              Conclusions                                      50
              Recommendations to the Secretary
                of Labor                                       52
              Recommendations to the Secretary
                of HEW                     a                   53
              Agency comments                                  53
              Recommendations to the Congress                  54

 10       SCOPE OF REVIEW                                      56
                                                                                   Page

APPENDIX
           I   Letter     dated June 16, 1977,               from the
                  Acting     Assistant  Secretary              for Admin-
                  istration      and Management,             Department
                  of Labor                                                           57

      II       GAO reports  on the              administration
                 of the black lung               benefits      program
                 under the Federal               Coal Mine Health
                 and Safety  Act of              1969, as amended                    66
  III          Steps      in claims      development                                 67
      IV       Principal      Labor and HEW officials
                  responsible       for administering
                  activities      discussed    in this              report           69


                                      ABBREVIATIONS
ALJ            administrative           law     judge
CWP            coal     workers'      pneumoconiosis
DCMWC          Division       of Coal     Mine Workers'             Compensation
ESA            Employment          Standards       Administration
GAO            General      Accounting          Office
HEW            Department          of Health,       Education,         and Welfare
OALJ           Office      of Administrative             Law Judges
OMB            Office      of Management           and Budget
OWCP           Office      of Workers'          Compensation         Programs
SSA            Social      Security      Administration
                                 CHAPTER1
                                 II_--
                               INTRODUCTION
         The Federal Coal Mine Health and Safety Act of 1969    '
.   (30 U.S.C. 801) became law on December 30, 1969. The act was
    amended by the Black Lung Benefits Act of 1972 (30 U.S.C. 901)
    on May 19, 1972. The amended act provides for monthly cash
    payments to
         --coal miners who are totally   disabled .due to coal
            workers' pneumoconiosis   (CWP)--commonly called "black
            lung"-- resulting from work in coal mines and
         --survivors      of coal miners who were entitled  to such
            benefits    and who died from black lung or were
            totally    disabled  from it at the time of death.
          Pneumoconiosis is a generic term referring     to a class
    of diseases caused by inhaling   such substances as coal dust,
    quarry dust, or textile  fiber.   CWP, caused by inhaling     coal
    dust, is characterized  by a chronic fibrous    tissue reaction
    in the lungs which may cause disability    or death.
           CWP occurs in two forms--simple     and complicated.    Simple
    pneumoconiosis     is characterized  by the profusion    of small
    opacities   (lesions)   in the lung.   Complicated pneumoconiosis,
    which usually occurs after simple pneumoconiosis,         is charac-
    terized   by conglomerate or massive lesions larger than 1 cen-
    timetier in diameter.
          The Department of Health, Education,        and Welfare (HEW)
    and the Department of Labor administer       the black lung benefits
    program authorized   by the 1969 act.      Under the act, HEW is
    responsible  for processing   miners' and survivors'       claims filed
    before July 1, 1973, initial    survivors'     claims filed before
    January 1, 1974, and certain    survivors'     claims filed within,
    6 months of the death of a miner or widow entitled          under part
    B or a miner who died before January 1, 1974. These claims
    are covered under title    IV, part B, of the act.        Labor is
    responsible  for all other claims filed under the act.           These
    claims are covered under title     IV, part C, of the act.
            HEW is also responsible   for establishing medical stan-
    dards to be used in determining      whether miners are totally
    disabled due to CWP and whether the deaths of miners were due
    to CWP and thus whether the miners or their survivors       are
    eligible    for benefits  under the act.



                                      1
        This report    deals with Labor's   administration      and
processing     of claims    for black lung benefits       filed under
title    IV, part C, of the act.      We have issued eight       other
reports     on other aspects    of the black lung benefits       program.
(See app. II.)
ELIGIBILITY      REQUIREMENTS FOR BENEFITS
        For a miner     or his survivors        to be eligible        for   bene-
fits    under title     IV, part C
        --the   miner must have been totally disabled  due to CWP
            or his death must have been due to the disease   and
       --the     CWP must have arisen        out   of employment       in the
           Nation's   coal mines.
        Under the 1969 act, only miners who worked in under-
ground coal mines or their         widows were eligible        for bene-
fits.     The 1972 amendments broadened       coverage     to include
miners who worked in surface          mines.  The amendments also
allowed    the miners'     orphans and the miners'      parents,    broth-
ers, and sisters       who lived   in his household     and who were
totally    dependent     on him in the year preceding        his death
to file    for benefits.
       The act requires         the person claiming        eligibility        for
black lung benefits          to provide     medical    evidence        to show that
the miner is or was totally             disabled    from pneumoconiosis           and
evidence    that it resulted         from coal mine work.              The act has
three presumptions--         one irrebuttable       and two rebuttable--
in determining     eligibility.
Irrebuttable      presumption
        The act provides     that,   if a chest X-ray,      a biopsy,  an
autopsy,    or another    diagnostic       procedure shows the existence
of complicated      CWP, the miner is presumed to be totally           dis-
abled or to have died from CWP. Therefore,               except for those               *
requiring    evidence    of coal mine employment,        no further   evi-
dence is needed to establish           eligibility   for benefits.
                                                                                        .
Rebuttable     presumptions
       The act provides          that, for cases in which the medical
evidence     does not show the existence         of complicated      CWP, a
determination     that the miner is totally         disabled     or died
due to CWP be based on criteria            and medical    standards    estab-
lished    by the act and regulations          of the Secretary      of HEW.
For determining      eligibility       for these cases,     the act provides
the following     presumptions.

                                      2
           Ten-year        presumption
          The act provides  that,  if the miner has been employed
    at least  10 years in the Nation's    coal mines, a presumption
.   be made that
           --the     miner's       death was due to CWP if              he died   from
               respiratory         disease and
          .--CWP,     if    present,        arose   from   his     mining   employment.

    Under the act, these two presumptions                         are rebuttable   and
    additional   evidence may be needed to                       either  support  or rebut
    the claim that the miner's   CWP arose                       out of his mining   em-
    ployment   or that his death was due to                       CWP.
           Fifteen-year          presumption -
            The 1972 amendments added another                rebuttable       presumption.
    It is that miners are totally              disabled     due to CWP, that their
    deaths were due to CWP, or that they were totally                         disabled
    by CWP at the time of their            deaths     if they were employed for
    at least    15 years in underground            coal mines or in comparable
    conditions      in surface      mines and medical          evidence     demonstrates
    the existence       of a chronic      totally     disabling       respiratory        or
    pulmonary     impairment.        This provision       may be rebutted           only
    by establishing        that the miners do not, or did not, have CWP
    or that their       respiratory      or pulmonary        impairments        did not
    arise    out of their       coal mine employment.
            The 1972 amendments provide              that no claim for black lung
    benefits      will   be denied     solely      on the basis of chest X-rays
    interpreted        as negative     for CWP. This act requires               that,   in
    addition      to X-rays,      all relevant       evidence,      including     such
    medical     tests    as breathing       tests,     blood gas studies,         elec-
    trocardiograms,         and physical       performance       tests    and the claim-
.   ant's    medical     history,     be considered.          The amendments provide
    further     that no coal mine employment               after    June 30, 1971, will
    be considered        in applying      the 15-year       presumption.
    Time limits
    --                for      filingaims    -_I
             The 1972 amendments placed certain           time limits   on black
    lung claims      filed      with Labor after   January    1, 1974.   Claims
    must be filed        within     3 years of the date of discovery      of total
    disability     due to CWP if the claimant          is a miner.     In cases
    of death due to CWP, the survivor             must file    within  3 years
    of the miner's         death.
        Also,   claims      filed      under the 15-year     presumption
provision      must be filed           within     3 years of the miner's     last
coal mine employment              for living       workers and within     15 years
of a deceased miner's               last    coal mine work for survivors'
claims.       Additionally,           only mine employment      occurring    before
June 30, 1971, may be counted                   toward the 15 years of required
service.
COMPENSATION AND
--                  OTHER BENEFITS
              --------
        The benefits    paid under part C of the Black Lung Benefits
Act are 50 percent        of the minimum monthly    payment to a totally
disabled    Federal    employee in grade GS-2, step 1, under the
Federal    Employees'     Compensation   Act (5 U.S.C.   8101).      (If the
miner or widow has dependents,         the benefit   amount is increased.)
This benefit      rate has increased     with changes in Federal        salary
levels.     The table below shows the monthly        benefit    rates paid
between October       1973 and September     1977.

                       10/l/73        10/l/74       10/l/75       10/l/76
                       through        through       through       through
   Dependents
       --              g/30/74
                       --             g/30/75       g/30/76       --g/30/77
None                   $177.60        $187.40       $196.80       $205.40
One                     266.40         281.10        295.20        308.10
Two                     310.80         328.00        344.40        359.50
Three   or more         355.20         374.80        393.50        410.80
       Under the 1969 act, Labor also pays for medical           services,
such as X-rays   and other      required     tests, scheduled when a miner
files   a claim.  The 1972 amendments also allow Labor to pay
the costs of medical      treatment      for CWP for those miners whose
claims   it has approved.
ADMINISTRATIVE
       I--          RESPONSIBILITY
       The act intended      that,   beginning     on January     1, 1974,
claims   filed   for benefits      under part C would be processed
and paid through      workers'     compensation     agencies    in States      that
enacted appropriate       laws, as determined        by the Secretary         of
Labor,   to provide    adequate     benefits    for total    disability       or
death due to CWP. As of December 1976 no State had enacted
laws meeting     these criteria.        Therefore,    all claims        under
part C were being processed          by Labor.
        The act also provides            that,   if a State fails    to meet
the Secretary's          standards,      the coal mine operator      must pay
benefits     to those miners he employed who became disabled                 or
to their      survivors.        Labor is required       to identify    the
responsible        operator     who will      be liable   for the payments.
Labor's     criteria      define    the responsible       operator  as the last


                                        4
coal     mine operator     who employed        the   miner    for   12 cumula-
tive     months.
       If a coal mine operator     fails   to pay the benefits
required   by part C, Labor will       pay them and the operator     will
be liable   to the United   States     for the amount paid.    Labor
also pays the benefits    if no responsible      operator   is ident-
ified.
       The 1972 amendments authorized            a special    benefits     fund
to pay the compensation        benefits      due miners     and their    survivors
under part C when no responsible             mine operator     is identified
or the responsible      operator     fails     to pay.     The fund is also
used to pay miners'      medical     benefits.      The fund is financed
through   congressional     appropriations        to Labor.      (See p. 10.)
     Under the act, the obligation           of Labor and mine operators
to pay benefits     will terminate     on December 31, 1981.       However,
any eligible    miners or their     survivors    will continue   to receive
compensation    benefits   in States    whose programs     are approved   by
Labor.

PROGRAM ADMINISTRATION
        The Secretary     of HEW has delegated            responsibility          for
administering      black lung claims         filed    under title         IV, part B,
of the act to the Social           Security      Administration          (SSA).       Labor,
under part C of title          IV, is responsible           for all other black
lung claims.       The Secretary       of Labor delegated            responsibility
for the black lung benefits            program to the Assistant               Secretary
for Employment       Standards     Administration.            The Office      of Workers'
Compensation      Programs      (OWCP), in the Employment              Standards
Administration       (ESA), administers          the program through            the Divi-
sion of Coal Mine Workers'           Compensation         (DCMWC) at the Wash-
ington,     D.C., headquarters.
       Operation      of the black lung program            is centralized      at
headquarters.         ESA, however,      contracts      with SSA to have that
agency's    district     offices    perform     certain      initial   claims-
processing      steps.     All further     processing        is handled     by DCMWC
in Washington.
Appeals     process
       Under the act, the claimant         or a responsible      coal mine
operator    has the right     to contest    Labor's   decision    on a claim.
Labor attempts     to resolve     disputes   through   an informal    con-
ference   with the parties      concerned.      If issues    cannot be re-
solved   at the informal      conference,    any of the interested       parties


                                           5
may request    a formal     hearing   before   a hearing    officer   in Labor's
Office   of Administrative        Law Judges (OALJ).      In such cases,
the hearing    officer     conducts   a formal   hearing    and issues   a
decision    in accordance      with the provisions      of the Administra-          .
tive Procedure      Act (5 U.S.C.     554).
       Either party may appeal a hearing         officer's      decision       to   .
the Benefits   Review Board, which consists           of a chairperson
and two other members appointed         by the Secretary        of Labor.
The Board is authorized        to hear and decide       appeals    involving
a substantial    question    of law or fact.      The act provides           that
any person adversely      affected    by a final     order of the Benefits
Review Board may appeal the order to a U.S. circuit                  court of
appeals.
PROGRAM ADMINISTRATION           EXPENSES
       Labor's      expenses   for administering         the black lung program
are financed        by congressional      appropriations.        The amounts
appropriated        since fiscal     year 1974 are shown below.
           Fiscal       year                        Amount
                 1974                           a/$5,600,000
                 1975                            ~/9,200,000
                 1976                                6,205,OOO
a/About    $1.3 million        in fiscal    year 1974 and about $2.5 million
   in fiscal    year 1975        were not used on the black lung program
   and were transferred           to other ESA programs,       such as the
   Federal    Employees'       Compensation     Program.     We were unable to
   determine    how much       of the transferred       funds were actually
   spent.




                                        6
                                    CHAPTER 2

                        SLOW ADJUDICATION
                                        --       OF CLAIMS
                           FOR BLACK LUNG BENEFITS
                           ----
        One purpose of the 1972 amendments was to expedite
benefit    payments to eligible      coal miners and their  dependents
or survivors.       However,  the Office   of Workers'  Compensation
Programs has been slow in adjudicating          claims and a large
backlog    of claims   has resulted.
      From July 1, 1973, through         June 30, 1976, OWCP received
92,727 claims.       As of June 30, 1976, it had adjudicated--
approved   or disapproved--      only 42,281 and had a backlog        of
50,446 claims.       Of the claims    which had been adjudicated,
only 8 percent      (3,233 claims)    had been approved       for benefits.
The effect     of this   92-percent   rejection   rate has been that
the black lung special        fund appropriation     authorized     by the
Congress has been used to only a limited            extent    to pay black
lung benefits.
        Instead,       the money appropriated       has served as an alterna-
tive    source of funds for other ESA programs,                such as the Federal
Employees'        Compensation     Program.     Of the $83 million       appro-
priated      to OWCP for fiscal         years 1974 to 1976, the first           3
fiscal     years for which it was responsible              for the program,       it
obligated        $22.5 million     in compensation      and medical     benefits,
transferred        $41 million     to the Federal      Employees'     Compensation
Programl       transferred     $2 million     to ESA for its salaries         and
expenses,        and returned     $11.4 million     to the Treasury      because
the appropriations           had lapsed.      At the end of fiscal       year 1976,
OWCP also carried          over the unobligated        $6.1 million     of its $20
million      appropriation      for black lung benefits          into the transi-
tional     budget period.

--INCREASE IN CLAIMS --IBACKLOG
        The number of undecided            claims   has been increasing
steadily      since OWCP assumed program responsibility                 on July 1,
1973.      For example,       in fiscal      year 1974 OWCP received        36,856
claims     but adjudicated         only 1,893 of them.         This situation
deteriorated         during   fiscal    year 1975, as the 20,664 claims
adjudicated        did not even offset          the 29,820 claims     received
during     the year, much less reduce the backlog                 from the pre-
vious year.          As shown in the following          table,    the backlog    of
undecided       claims     had grown to 50,446 by June 30, 1976.
                  Volume
Fiscal                of   Decision                                  Claims
 year             claims     made       Denials      Approvals       backlog
 1974             36,856        1,893        1,516        377         34,963     .
 1975             29,820       20,664       19,477     1,187          44,119
 1976             26,051       19,724       18,055     1,669          50,446
                                                                                 b
     Total        92,727       42,281       39,048     3,233

       Under its adjudication          procedures,    OWCP makes an initial
determination      to approve or deny a claim.             A denial    is gen-
erally    based on a lack of sufficient            medical   evidence     to
prove total    disability        from CWP or prove that CWP resulted
from coal mine work.           When claims     are denied,    the claimants
are notified     that the claim has been denied and that they may
submit additional         medical    or employment    evidence      to support
their   claims   and/or     appeal the decisions.
        The 39,048 denials      shown above were made under OWCP's
initial    determination     procedure.    Thus, some of the claims
may eventually       be approved    by OWCP on the basis of additional
evidence    or on appeal.
Age of backlog
      Most of the backlogged      claims   at June 30, 1976, had re-
mained undecided   for over a year.        Of the 50,446-claim       back-
109, about  61 percent   (30,692)      had been filed   before    June 30,
1975, and about   31 percent    (15,472)    had been filed     before
June 30, 1974.   The table    below shows the number of months
that the 50,446 claims     in backlog     had been in process      at
June 30, 1976.
         Months   in process            Claims          Percent
         Over 24                        15,472                 31
         Between 13 and 24              15,220                 30
         Less than 13                   19,754                 -39
             Total                      50,446

OWCP SLOW IN PROCESSING CLAIMS
        Labor originally       set a goal of 90 days for processing
claims,     and OWCP     later  revised  that goal to 180 days.    Yet,
OWCP has failed       to meet either     goal.




                                        8
          To measure OWCP's processing  time for black lung claims,
    we took random statistical   samples of 197 claims on file as
    of March 31, 1975. The claims fell into the following
    categories:
        Categories                                                          Claims sampled
l
    Claims approved                                                                   53
    Claims denied                                                                     96
    Claims on which no decision                has been made                          48
                                                                     197
                                                                     =
    The average processing  time               for the 149 approved or denied
    was 256 days for denial and                366 days for approval from
    the time the claim was filed                 at the SSA district   office
    to the date benefit payments                 began.
           In some cases, eligible    disabled miners or their sur-
    vivors had to wait as long as 2 years to receive their first
    benefit   check after submitting     their claims.   Some claimants
    who were eligible    for benefits    died before OWCPwas able to
    complete work on their claims.        The 48 undecided claims in
    our sample had been in process from 145 to 698 days from the
    time they were received from the SSA district        offices.
         A summary of processing                times         for     the 197 claims            in
    our sample is shown below.
                                                                        Initial
                                                                      determina-
                              Filing    at       Receipt                tion to
                                  SSA to       to initial             start     to     Average
           Number of           receipt         determina-               benefit       processing
       claims sampled                              tion               payments            time

                                                             (days)
       Approved      claims
         (53):
               Average                                 305                       25        366
               Range              6-l:;           50-583                 o-173

       Denied claims
         (96):
            Average                       39           218                                  256
            Range                 3-230           27-540

       In process   (48)
          (note a):
           Average                        33           444                                  477
           Range                  5-127         145-698
       a/For      these claims,  processing  time was analyzed  from                  receipt
         by      OWCP to the cutoff   date in May 1975 used for our                   sample.



                                                  9
            Several    Labor units       have noted delays       in processing
     black lung benefits.             A July 1976 interim      report    on the black
     lung program and the January              1977 final  report     by an OWCP
     task force     established        to study Labor's    compensation        programs
     stated   that during       fiscal     year 1976 processing       time for all
     claims   had increased         to an average of 630 days.           Similar     pro-
     cessing    delays    were noted in a November 24, 1976, report                  on
     a management review of the black lung program by Labor's
     Office   of Organization          and Manpower Utilization.
    PAYMENT OF COMPENSATION                                                                        a
    AND OTHER
         ------ BENEFITS
             OWCP has obligated    about $22.5 million                       out of the $83
    million     appropriated    to the special      fund to                  pay compensation
    and medical      benefits.    The table    below shows                    special  fund
    activity     since the fund's     creation    in fiscal                   year 1974.
     Fiscal                        Appro-      Compensation            Medical
      year                     priations         benefits              benefits
                                                                       --                 Total

              1974           $27,000,000       $       650,000     $      950,000    $ 1,600,OOO
              1975             36,000,OOO           5,200,OOO          1,750,000       6,950,OOO
              1976            -20,000,00~          11,400,000          2,500,OOO      13,900,000
                     Total   $83,000,000       $17,250,000
                                                ---I-              $5,200,000
                                                                    ---              $22,450,000
         As the table     showsp only $1.6 million        of the $27 million
  fiscal    year 1974 appropriation       was obligated      to pay black lung
  program benefits.        Of the remaining      $25.4 million,     $13 million
  was reprogramed      l/ to pay Federal       employees'    compensation     bene-
  fits,   $2 million-was     transferred     to cover ESA's salaries        and
  expenses,     and $10.4 million      was returned     to the Treasury.
          In fiscal    year 1975, about                    $7 million    of the $36 million
  appropriated      was used for black                     lung benefit    payments.   Of
  the remaining      funds,   $28 million                    was reprogramed   l/ to pay
  Federal    employees'     compensation                   benefits    and $1 mxllion  was             ,
  returned     to the Treasury.
        The unobligated  $6.1                  million  of the fiscal    year 1976 $20
million    appropriation   for                 black lung benefits    was carried
over into the fransitional                       budget period--July   through    Sep-
tember 1976.
-___I-----_




L/Reprogramed   with the                    permission  of the Chairman,      Subcom-
   mittee  on Labor-HEW,                    House Committee   on Appropriations.



                                                      10
      L

              ,




                    PROGRAMTO PAY BLACK LUNG BENEFITS TO                                                                          HRD-77-x-
      Y             COAL-MINERS/AND THEIR SURVIVORS--
                    IMPROVEMENTS ARE NEEDED/DEPARTMENTS
kc-                 OF LABOR AND HEALTH, EDUCATION, AND/
                    WELFARE /

          v         As requested            by the Chairman,                   Senate      Committee         on Human Resources,                      we

                    reviewed          Labor's      black           lung compensation               program      for     coal    miners              and

                    their      survivors.           We placed               particular         emphasis       on reviewing           Labor's

                    actions       in processing              claims          for     miners     and their           survivors      and Labor's

                    success       in achieving           ,,the intent              of the 1972 amendments                  to the act.
                            WL        ,JiL%+         ."&$&f d
rdBgqQ<           /- The Labor         Department          is not achieving                   the results           contemplated             by the

                    act     and its       amendments.                Its     Office      of Workers'          Compensation           Programs

                              --has     been slow in adjudicating                          claims,

                              --has     approved          few claims,                                                                    \

                              --has     paid      out     little           in benefits,         and
                                                                                                                                             ‘..\
                              --has      a large         backlog           in claims.


IMD
  fwi-            2, Several      management             problems           and other         factors       contributed          to Labor's

                    slow adjudication
                                 .                  rate           and increased           claim        backlogs,       such as:

                              --Problems          with      inadquate              development          of individual           claims

                                by the Social               Security           Administration.
                                                                                                                                                           :.
                              --Slow      claims         processing            by Labor        caused by piecemeal                and

                                 cumbersome procedures.

                              --Delays          in the informal                Labor      hearings        of contested           claims

                                 and formal         hearings               by the Office           of Administrative              Law

                                Judges.
                     --Lack       of effective            assistance           by Labor           and the Social               Security

                       Administration                to claimants             filing       benefit          claims.

                     --Failure        of Labor's           national           office       top management               to take

                        effective           action     to alleviate              the program's               staffing          problems.


             Also,    more claimants              could     be given           a chance           to qualify           for     benefits       if
(“lDF6   3
             Labor    revised        its     processing           procedures            to have X-rays                reread      for     miners

             whose X-rays           are initially           interpreted                as negative           for      pneumoconiosis.


             We are     recommending            that      Labor:

                     --Allocate            adequate       resources           and staff           to effectively               manage

                        its      program.

                     --Revim         its     claims-processing                 system       to reduce              delays      between

                        processing           steps.

                     --Establish            timeliness           criteria        for     completing            the informal
                                                                                                                                   '.-.
                       hearing        process.

                     --Determine            the feasibility                 of having       all      X-rays         reread      so that

                        claimants           whose X-rays            are interpreted                 as negative              be given

                        every       opportunity           to qualify           for      benefits.

                     --Establish            an effective            program          to respond         promptly             to claimant

                        inquiries           on the status            of their           claims.


             We are also          recommending            that      HEW direct           or require           SSA offices               to follow

             prescribed          policies       and procedures                in processing             Labor's         black      lung      claims

             and establish           a feedback           procedure           so that       district          office          personnel       will

             be made aware of deficiencies                          and problems            in      their     performance.
.


    L




           We are recommending                       that    the Congress          amend the Federal                Coal Mine

           Health        and Safety            Act     to delete         the requirements              that     living        miners

            file     within,3          years     of the date             of their      last     coal       mine employment

            to be eligible              under         the 150year         rgbuttable          presumption           and that          widows

           of miners           determined             to have been totally              disabled            from pneumoconiosis

            file     within        3 years       of the date             of the miner's          death.


           Also,       the Congress             should        decide      whether      to amend the act                  to permit

           Labor        to use the Interim                   Standards in adjudicating                      black      lung     claims.
                c     \/*'.l.C    * .>   . ..-                 ,, : :.   '    h>                       I                                       -, .       I
            ' .       "?                                                                                                                              .
            I-.      ,f
        *-.y-z--
          -..Iti~.lsEGm*~~"
                   -_l^ii_..w-------
                     Ineffective           administration                of the black          lung compensation                 and

                         benefits        program            for   coal    miners     and their             survivors          under

                              the Federal             Coal Mine Health             and Safety          Act of 1969.              'Y
    FACTORSAFFFLTING
           _1_-_1    THE PROCESSING
    OF BLACK LUNG CLAIMS
             Internal     factors   that have contributed                  to   the delays   in
C   claims      processing      and the increased backlog                  of   claims  are:
             --OWCP problems  with inadequate                     development     of   individual
                claims by SSA district  offices.

             --Slow   claims processing             by OWCP caused          by piecemeal         and
                cumbersome procedures.
             --Delays   in the informal     hearings    of contested    claims
                by OWCP and formal    hearings     by the Office     of Adminis-
                trative   Law Judges.
             --Lack    of effective        assistance      by SSA and Labor              to
                claimants    filing       benefit    claims.
             --Failure      of Labor top management to                  take effective
                action    to alleviate  OWCP's staffing                   problems.
             Labor officials         believe         that other     factors      contributing
    to the current          adjudication           rate and increased         claims         process-
    ing workload        are the fact that               (1) unlike      other workers'           com-
    pensation       programs      under which evidence               is collected          by em-
    ployers      or their      representatives             (for example,       insurance         com-
    panies),      Labor has assumed responsibility                      for collecting
    vitually      all of the claimant's                 evidence,      (2) after       initial
    determination         and after        claims       are served upon responsible
    coal mine operators             (who contest           about 97 percent          of the
    claims),      they often        undergo a second investigation                     including
    a repeat medical           evaluation,           and (3) the act does not provide
    a means for compensating                 differences        in disputed       cases,        such
    as through       partial      disability           benefits    or lump sum settle-
    ments, and thus disputed                 claims      must be formally         litigated
*   to resolve       contested       issues.
            Regarding     the number of claims         approved,     Labor officials
    said that the older minersl             who have many years of service
    and are most likely         to either      have complicated       CWP or be
    covered by the presumptions             on the existence       of disabling       CWP
    based on their        number of years in coal mine work, had filed
    with SSA under title          IV, part B, of the act.            Thus, the claims
    filed    with Labor under title          IV, part C, of the act were more
    often    from miners     less likely       to have complicated        CWP or the
    required     number of years of work to come under the act's                    dis-
    ability     presumptive     provisions.        Moreover,     Labor has not been


                                                  11          ‘
allowed     to use the more liberal         “Interim     Standards”--                    ..d@--
disability       evaluation   criteria     which HEW adopted        in early
1972.      HEW established      the Interim      Standards    for adjudicat-
ing claims       under title    IV, part B.        They were established
as a result       of concerns     expressed    by the Congress        when con-
sidering      the Black Lung Benefits         Act of 1972 that fewer than                ,
50 percent       of the claims     were approved       under the 1969 act.
          Another     factor    affecting      the number of claims       approved       *
by Labor is the legal               provision     requiring    a miner to file     for
benefits       within      3 years of last        coal mine employment       (for
eligibility         based on the rebuttable             presumption)    or the miner’s
survivors        to file     within      3 years after      the miner’s   death.

        In addition,     more claimants    would be given a chance to
qualify     for benefits     if OWCP revised    its procedures    to have
X-rays    reread     for miners whose initial      X-rays  are interpreted
as negative       for CWP.




                                         12
                                     CHAPTER 3
                    SSA DISTRICT   OFFICES NOT ADEQUATELY
                     DEVELOPING LABOR BLACK LUNG CLAIMS
       OWCP officials      have estimated     that about half              of the
claims   received     from SSA were improperly      developed.               Because
of this problem,        the OWCP staff    had to do additional               work
to complete     processing     of the claims.
        SSA and Labor have         an agreement    under which SSA's dis-
trict    offices initially         receive  claims   and are responsible
for
        --explaining       to the claimants     the act's       requirements
           and Labor's       adjudication   process;
        --helping      claimants   to complete    Labor      application
           forms     and answering   their  questions;        and
        --informing     claimants    of documentary      evidence     needed
            to support    a claim,   directing      them to appropriate
            sources   of such evidence,        and sometimes    helping    them
            to obtain   the required      evidence.
       Immediately   after   opening   the claim,  district offices
must send a notification        card to OWCP so it can schedule     a
medical   diagnostic    examination    for the claimant.
        District     offices     retain    the claim files       until     required
evidence       is obtained      or until     30 days have elapsed,           at which
time the claim file           is sent to OWCP. When a file               is sent
without      all required       evidence,     the file    should    include      a
memorandum noting          what evidence        is outstanding      and when Labor
can expect        to receive     it.     The district     office    is responsible
for securing        outstanding       evidence.
         Labor has encountered      problems    in SSA's district   offices'
development        of claims since the beginning      of Labor's  program
in July 1973.         These problems    and attempts    to remedy them were
identified       in a series   of internal    reviews   by both OWCP and
SSA in 1973, 1974, and 1975.            However, many of the problems
still     exist.




                                         13
OWCP AND SSA ANALYSES OF PROBLEME
-p-e-
AT   DISTRICT OFFICES
--_1---
         In October       1973, OWCP, using development              quality    control
criteria        established      by SSA, reviewed         a sample of 928 claim
files      submitted      by SSA district       offices.       OWCP determined
that about half had not been adequately                      developed.      About 329
files     did not have adequate           evidence       of the claimant's       coal
mine employment.             This evidence      is crucial       to OWCP's adjud-
ication       process     since it identifies          the responsible       mine
operator        for purposes      of benefit      payment and aids in deter-
mining      the applicability        of disability         presumptions.
       OWCP also found about 285 of the claims                (1) lacked      com-
plete   evidence    for other matters     such as number of dependents
or (2) had application       forms that were not completely              filled
out.    For 187 of the reviewed       cases,     the SSA offices        had not
arranged     for required   medical   diagnostic       tests      of the miners.
At that time the SSA offices        had this       responsibility.
         During 1974 officials         of OWCP and SSA's Bureau of Dis-
trict     Office     Operations    met regularly       to discuss  the district
offices'       problems     and proposed    solutions.       These headquarters-
level     contacts,     however,    apparently      did not remedy the prob-
lems.
        In September 1974, SSA's Bureau of District                   Office
Operations       made its own study,         which found similar         problems
at the district        offices.      The study noted that many applica-
tions     contained    unanswered     questions,         many cases did not have
enough information          to enable OWCP to contact            medical     sources,
and many claims        had incomplete        information       about coal mine
employment.         The Director     of the Bureau said the problems                were
serious     enough to require        special      attention     by management.
As one means of correcting            the problems,         the Director      in-
structed      that,   beginning     on December 1, 1974, each district
office     perform    a supervisory      review of black lung claims              before
sending     them to OWCP.
        Also,     in September    1974, OWCP relieved       the SSA district
offices     of the responsibility         for scheduling      appointments    for
claimants       to have required      diagnostic    tests.     Under the re-
vised procedure,         when a claim     is filed    the district     office
sends a card to OWCP notifying              it of the claim.       OWCP then
arranges      for the medical      tests.
       In December 1975, more than 2 years after            the problem
was first    noted,   the Associate     Director     of the Division    of
Coal Mine Workers'       Compensation    said that claims      development
by SSA district     offices   was still     unsatisfactory.


                                         14
    GAO'S
    -----I_ REVIEW AT   SSA DISTRICT
                   ---e--v                      OFFICES
             In late fiscal      year 1975 and early         fiscal      year 1976, to
    review     the effectiveness         of the district       offices'        black lung
    claims     processing,     we visited       10 SSA district         offices     in four
.   States     and 3 regional      offices      having jurisdiction            over the
    district      offices.     We noted inadequate         claims       development      at
    9 of the 10 district          offices     visited.
            Our review of 52 claims showed that                    33 were     not ade-
    quately    developed for one or more of the                    following      reasons:
           --Coal    mine employment   evidence  was incomplete     and
              pertinent   evidence   was not obtained   (25 claims).
           --Application         forms were       not   complete      and required        data
              was missing        (24 claims).
           --The required   supervisory review                  by the    SSA district
              office was not made (3 claims).
           --The district      offices    did not notify  OWCP by card that
              the claim was opened so that OWCP could arrange          the
              medical   diagnostic     tests  (6 claims).
              Most officials          at these district         offices     said they had
    been advised         of the SSA and OWCP studies                  that had noted gen-
    erally      poor claims        processing.          However,      SSA transmitted        the
    studies'       results      in memorandums which reported                the results
    either      generally       or by State,         but not by individual          district
    office.       District        office    officials      felt     that this    method was
    unsatisfactory           since they had no way of knowing if their                       own
    district's        claims      processing       was deficient.
            According     to SSA headquarters      officials,       the split       juris-
    diction      in black lung claims      processing--with         SSA responsible
    for claims-taking        and Labor responsible          for claims
    adjudication--       has no doubt caused problems           for all parties,
t   including       the black lung claimants.          In addition,        they said
    that other factors,        such as the large workloads             in other SSA
    programs       and the problems    encountered       in obtaining        evidence
    of the claimants'        employment    because many coal mines are no
    longer     in business,    have led to the shortcomings              in processing
    black lung claims        at the district      offices.
    PROPOSAL TO RELIEVE SSA OF ITS DUTIES

         In a November 1975 letter to the SSA Commissioner,
    the Assistant Secretary for ESA proposed that SSA district


                                                15          .
offices   be relieved of their development responsibilities
for black lung claims and that this work be done by OWCP.
In March 1975 hearings on the Black Lung Benefits Reform Act
of 1975 (House bill 8) before the Subcommittee on Labor
Standards, House Committee on Education and Labor, the SSA
Commissioner said that he would not object to having the black
lung responsibility   placed in Labor.
       In December 1975 the House Committee on Education and
Labor ordered the text of House bill  8, as amended, to be             l




reported out as House bill   10760. On March 2, 1976, the House
passed that bill.
        In reporting    out House bill   10760, the Senate Committee
on Labor and Public Welfare l/ added a provision          that would
have allowed Labor to establish        necessary field offices    to
help claimants     file and process claims or to make arrangements
with other Federal agencies to use their field offices          to
handle the initial      claims processing.     However, the Congress
adjourned before the Senate acted on the legislation.
        House bill  4544 and Senate bill 1538, containing   a
provision   similar  to that in House bill   10760, as amended by
the Senate Committee, were introduced      in the 95th Congress.
On March 31, 1977, the House Committee on Education and
Labor reported 2/ favorably    on House bill    4544.
        On May 16, 1977, the Senate Committee on Human Resources
reported 3/ favorably   on Senate bill 1538. Both the Senate
and House-bills   were pending in the Congress at June 15, 1977.

L/See S. Rept. No. 1254, 94th Cong.,       2d Sess.,   29 (1976).
2/H.   Rept.   No. 151, 95th Cong.,   1st Sess.   49 (1977).
i/S.   Rept.   No. 209, 95th Cong.,   1st Sess. 31 (1977).




                                 16
                                       CHAPTER 4
                        OWCP'S PROCESSING PROCEDURES
                    CONTRIBUTE SIGNIFICANTLY            TO DELAYS
                              IN PROCESSING CLAIMS
       In its initial    determination       to approve or deny a black
lung claim,     OWCP uses sequential,        piecemeal   processing     pro-
cedures    that cause claimants'       files    to be reviewed     many
times by the claims      examiner     with long d#ays       between re-
views.     As a result,   an inordinate        amount of time passes
before   the processing     is completed.
INITIAL    PROCESSING
       SSA district        offices      are to send OWCP's Division               of
Coal Mine Workers'          Compensation          the claim file         30 days after
the miner or his survivor               files     the claim.        DCMWC has several
units    that handle the claims               processing.         The Branch of Pro-
gram Services        handles      the initial        processing,       the Medical
Advisory     Staff     schedules      and obtains         results    of medical
diagnostic      tests,     and the Branch of Entitlement                  develops
and reviews       the claimant's           medical     and nonmedical       evidence
and makes the initial             determination         of approval       or denial.
(See app. III        for the charts           showing the movement of the
claim through        DCMWC.)
       The claim files         from SSA are received          in DCMWC's Branch
of Program Services,           which    does   such  processing    as folder
preparation       and inserting       information      from the file    into
DCMWC's claims       computer      tracking     system.     In October    1975,
OWCP said that on the average               it took from 1 to 2 months
for the Branch to process             a claim and forward        it to the
Medical     Advisory    Staff.       According     to OWCP, by November 1976
this   time had been reduced            to about 3 weeks.
Scheduling     and obtaining
medical    evidence
       SSA district       offices       are to send a card to DCMWC when
a miner files        a claim.       Upon receiving      the card,        the Medical
Advisory     Staff    schedules       the necessary     medical       diagnostic
tests    (X-rays,     ventilatory        or breathing     test,      and physical
examination)       for the miner with a medical              facility       or phy-
sician    of the miner's          choice   or from an OWCP list            of facili-
ties   and physicians         near the miner's        home.     The latter        are
called    OWCP medical        providers.       If the SSA district           office


                                           17
   does      not send the card8       this    processing           step   is not       done
   until       the Medical   Advisory      Staff     receives         the claim        file
   from      the Branch    of Program      Services.

           The Medical     Advisory        Staff      normally     reviews     the
   results    of the medical         tests       to determine        their   validity.
   The staff    does not,        however,        evaluate      the medical       evidence
   to determine     whether       the miner         has CWP.      This     is done later
   by the claims       examiner.

          In October            1975 we reviewed       2,197    claims     (about  33
  percent    of the           claims    handled     by the Medical       Advisory    Staff
  at that    time)          to determine        how long    the claims      had been
  there.     Of the           claims    reviewed,     about    30 percent      had been
  in the unit       for         4 months     or more and about         42 percent   had
  been there      for         at least      3 months.

         Officials         of the Medical       Advisory   Staff      said     that   medi-
  cal providers          often      do not send in test      results       promptly
  and that,        because       of the staff’s      heavy caseload,         it is not
  able   to promptly           follow   up with    the medical      providers       to
  obtain     the evidence.

REVIEW AND EVALUATION
-e-1_---          ---
OF MEDICAL EVIDENCE
---e-e--




        After     completing    its   review,  the Medical     Advisory
Staff     submits     the file    to the Branch    of Entitlement       for
processing        by the claims     examiners.

Claims
---a------     examiner’s        initial
                                 -----v--    review

        When a claims         examiner        receives         the claim,        it should
contain       all   medical     and nonmedical             evidence         needed     to make
an initial        approval      or denial.            However,         the claims        examiner
does not completely             review       and adjudicate              the claim       at this
time.       Instead     the examiner          reviews        the accuracy          of the data
and evidence,         prepares        a case control             card,      and places       the
claim     in the regular          caseload        files.         According       to claims
examiners,        a complete        review      is not done at this                time     because
they    already      have a large          caseload        and to do this            for    new
claims      would    delay    processing          for    claims       already      months
old.

        Months   elapse        from     the time    of this      initial     review
until    the claim       is selected         for  further      processing.           For
example,     a claim       from     one of the miners          in our sample          was
received     by the claims            examiner    in October         1973.     The exam-
iner    made his    initial         review     at that    time     and filed      it.
But, not until   May 1974--7 months later--did                        the   examiner
select  the claim for a detailed   review.
Claims
--          examiner's      detailed      --review
       When a file        is selected      for detailed      review,      the claims
examiner's        primary    concern    is to review      the medical        evi-
dence-- X-rays        and results     of the breathing         tests    and the
physical     examination--       submitted     by the medical        providers     to
determine      whether      or not the evidence        supports      a finding     of
total    disability       from CWP.
       Chest X-rays            show whether        the miner has CWP and, if so,
whether     it is "simple"              or "complicated."          Breathing     tests
show whether          the miner has a breathing                 impairment     and whether
the impairment            meets the standards            established       by HEW for
determining         total      disability.         A physical       examination     is
used to obtain            the doctor's        opinion     on the health        of the
applicant--       whether       he is totally         disabled      and whether     the
total    disability          is attributable          to CWP.
        For most black lung claims                 the key diagnostic           test    is
the X-ray.         HEW regulations           require     that X-rays       be of suit-
able quality         for proper       classification          of the disease         and
for their       reading      to conform to accepted             medical      standards.
DCMWC officials           believe     that most medical           providers,       not
being experienced            radiologists,         are not trained         in inter-
preting     X-rays      for CWP. Therefore,              DCMWC contracts          with
expert     radiologists         referred       to as B-readers         to reinterpret
(reread)      positive       X-rays     obtained      from medical       providers.
Also,    the claims        examiner       usually     has breathing        test    results
which meet total           disability       standards       revalidated       by the
Medical     Advisory       Staff.
Rereading      of X-rays
               I_--
        The practice     of waiting   until the claims     examiner    makes
his detailed       review of the claim before     requesting     an X-ray
rereading     adds several     months to the claim processing        time.
For the 84 claims        in our sample for which the X-rays         were
reread,    the elapsed     time from when examiners      requested     re-
reading    to when the interpretation       was received     by DCMWC
averaged     42 days.
       In addition,     in some cases several      months elapsed
between the time that the B-readers'          interpretation       was
received    and another    processing  step was taken.          In one
case, more than a year elapsed        between when DCMWC received
the miner's      reread X-ray and when another        processing    action
took place.


                                            19
         We believe        that    processing        time    could       be shortened         if,
upon receiving            X-rays     from    the medical         providers,          the
Medical       Advisory       Staff     sent    all   X-rays      directly         to the B-
readers       for    rereading       and then      included        the reading           in the
file     sent     to the claims          examiner.        By having         the X-rays
interpreted          immediately         by B-readers,         the examiner            could
make a decision            on medical        evidence       upon first          receiving
the claim.          This     would     also    reduce     the number          of times
examiners         would    have to review          claims.

Not all
-----we       X-rays ---- reread

       DCMWC initially         had all      X-rays      reread,      but it discon-
tinued   this   practice       in November         1974.      DCMWC now generally
has X-rays    reread      only    when the medical            provider     has inter-
preted   the X-ray       as being     positive        for CWP.

        The present      procedure        seems to be biased            against       claim-
ants    whose X-rays       are interpreted          as negative         by the medical
providers.        OWCP compared         the negative       X-ray      interpretations
by the medical       providers        with    those     of its    B-readers         for
September      1973 through        September       1975.     According         to   OWCP   ’s
analysis,      502 (5 percent)         of the 10,921         X-rays       reread      were
upgraded     by its    rereaders       from     negative     to either         simple      or
complicated       CWP or from simple            to complicated          CWP.

        Miners     whose X-rays          have been interpreted                either      as
negative       or as showing          the existence           of simple       CWP must also
provide     other     medical       and nonmedical            evidence      to be found
totally     disabled       from CWP and thus             be eligible          for    benefits.
However,       it would      appear      that    additional          miners     would    be
given    a chance      to qualify          for   black      lung benefits          if OWCP
returned       to its    original        procedures         and had all         X-rays      re-
read.      For example,          regarding       one claim         in our sample,           the
miner’s     X-ray     had been interpreted               by the medical            provider
as negative        for CWP in September               1974.        In July      1975,    OWCP
had a B-reader         reread       the X-ray;        he    interpreted         it   as  posi-
tive.      The miner’s         claim     was later       approved         by Labor.

REVIEW
-p--------   OF NONMEDICAL         EVIDENCE
                                      ----
         The act requires          that     in addition            to proof    of the
existence          of CWP or another          totally         disabling     respiratory
disease,        there     must be proof         that      the disease       results     from
coal     mine employment.            To prove         this      a claimant     must pro-
vide     evidence       of the required           number        of years    of coal mine
employment.           Also,    the eligibility              of dependents        and survi-
vors     has to be determined            through          such evidence        as marriage,
death,      birth,      and divorce      certificates.


                                                20
          The claimant's        employment    or nonmedical        evidence     is to
be provided        by the SSA district         office.       However,     the claims
examiner      usually       does not verify     the adequacy of this evi-
dence until        the medical       evidence   has been validated--usually
several      months after        the claim is filed.           Consequently,
claimants       whose medical        evidence    is eventually        found to meet
eligibility        criteria      may encounter      additional      delays     until
coal mine employment             and other data is found to be ade-
quately      supported.         For example,     it takes about 60 days for
OWCP to receive           a report    of the employee's         earnings     from SSA.
        Processing       time might be shortened               for those cases
eventually       approved       if the claims         examiner,      at the time of .
initial     review of the claims              folder,      evaluated      the adequacy
of the nonmedical           evidence.         If more nonmedical            evidence    is
needed,     action      could be taken immediately,                rather      than wait-
ing until      the medical         evidence       has been obtained.             Under
the present         procedures,       medical      evidence      is usually       not
obtained      until     several     months after         the claim is filed           when
the examiner         makes a detailed           review.
        Labor officials      advised    us that about 85 percent               of
the cases require        no additional        evidence      beyond that re-
quired    for an initial      medical     determination.            If a proce-
dure were adopted whereby medical                evidence     and nonmedical
evidence      are developed     concurrently,         the claims       examiners'
workload     would be increased        with minimal         benefit     gained
in only 15 percent         of the cases.         Therefore,      given the
limited     resources    they will     continue      to obtain        nonmedical
evidence      on an "as needed" basis.
       Although      we recognize        Labor's    position,       we believe      that
at the time of the claims               examiner's     initial      review,      many
claims     contain    sufficient        medical    evidence      (that      is, a posi-
tive   X-ray)      to make a preliminary           determination          that the
claimant      is medically       qualified.        For these claims,            we be-
lieve    that DCMWC should consider               immediately       initiating
action     to develop      nonmedical       evidence.
EXAMPLES OF DELAYS IN
OWCP CLAIMS PROCESSING
     Presented        below    are cases illustrating            the delays        in
OWCP processing        that    occurred  in claims          we reviewed.




                                           21
Case illustrating
PII                       delays
in approving
         --       claims-
      In the following    case 21 months passed from the date
the miner filed    his claim to the date OWCP approved   the
claim and began making benefit     payments.
       --July      1973,        miner   filed       claim      in SSA district                 office.
       --August         1973,     SSA submitted             claim     file      to OWCP.
       --September     1973, OWCP requested     medical                             tests,        X-ray,
          and breathing     test from claimant.

       --October         1973,     OWCP received             medical         test      results.
       --June   1974,           OWCP requested           medical        provider             to submit
          X-ray film            (8 months after           X-rays        taken).
       --October     1974,          claims        examiner         requested         that      X-rays
          be reread.
       --October         1974,     OWCP received             reread      of X-rays.
       --October   1974,            claims    examiner             requested         miner        to
          take physical             examination.
       --January         1975, OWCP received  physical  examination
          results,        but they were not sufficient   to establish
          disability.          Miner asked to take blood gas test.
       --February   1975, OWCP received   blood gas test                                      results
          which show miner has complicated     CWP.
       --March      1975,        OWCP began developing                  nonmedical             evidence.     _
       --April      1975, OWCP evaluated                    coal     mine employment                   and
          other     nonmedical evidence.
       --April    1975, OWCP approved                    claim       and awarded
          benefit   payment.
Most of this    21-month lag                 is    attributable          to OWCP's
sequential   claims-processing                     procedures.
        We interviewed    44 claimants    from Colorado      who had com-
plaints    about DCMWC's handling       of their    black lung claims.
The experience       of one of the claimants     illustrates     the
effect    of slow claims    processing.

                                                  22
       The miner had originally      filed    his claim on July 2,
1973.    On October  8, 1974--463       days (about 15 months)         after
the claim was filed--DCMWC       approved     it.   After   sending     a
notice   of approval    to the miner,      DCMWC was told that he had
died 2 days before      his claim was approved.          Subsequently,
the miner's    widow filed    her own claim.       DCMWC took an addi-
tional   152 days (about     5 months)     to approve this     claim.
Case illustrating             dela=
indenying       claim
       In the case below               it      took OWCP over 2 years                       to make
an initial   determination                   to deny the claim.
       --July      1973,      miner         filed        claim      in SSA district            office.

       --August       1973,         OWCP received                X-ray.
       --November          1973,      SSA submitted                 claim     file      to OWCP.
       --December          1973,      OWCP requested                 miner      to obtain
          breathing         test.
       --January        1974,        OWCP received                breathing          test   results.
       --February  1974, OWCP claims    examiner                                requested       miner
          to have physical examination.
       --April    1974, miner                given        physical          examination        by
          medical   provider.
       --June      1974, claims    examiner   requested    more information
          from     medical  provider    on physical     examination.
       --July   1974, OWCP received  physical     examination                                    infor-
          mation requested   from medical   provider.
       --July       1974, OWCP claims   examiner   discovered    evidence
          of coal mine employment         not developed     by SSA and
           initiated      action to develop   the evidence.
       --September          1974,      OWCP received                 coal     mine      employment
          evidence.
       --October   1974, claims                     examiner   requested    that breath-
          ing test be validated                      by Medical    Advisory    Staff.
       --November    1974, claims     examiner    requested    that                             miner
          take another    physical    examination     since X-ray
          was negative    and breathing     tests    positive.


                                                    23
     --December        1974,      results          of physical      and new X-ray
        received.
     --January     1975,        claims        examiner       requested       that      X-ray
        be reread.
     --February     1975, claims     examiner  requested    miner                            to
        supply additional      evidence    to verify   coal mine
        employment.
     --March      1975,    OWCP received               results    of X-ray          reread.
     --June  1975, claims    examiner                   again    asked      miner      for        coal
        mine employment   evidence.
     --January    1976, claims  examiner  made initial    determina-
        tion to deny claim because X-ray reread was negative
        and evidence    of coal mine employment    was inadequate.
     --January     1976, miner               notified    OWCP he would              supply
        additional    evidence               to qualify.
     --May 1976, OWCP asked                   miner     to supply        additional
        evidence he promised.
       The case above          illustrates            such deficiencies             in claims
processing    as:
     --Untimely        claim      delivery        by SSA district office--3
        months      required       rather       than the proposed  1 month.
     --Poor     claim development   by SSA district     office--
        breathing     test not scheduled  before    transmittal      of
        claim to OWCP and coal mine employment           information
        not developed.
     --Sequential         claim development      by OWCP and no thorough
        review when claim initially            received--breathing           test
        validation        and X-ray rereading      performed       at different                          .
        times,      and complete       medical examination       required
        after     initial      medical   tests were scheduled.
     --Long delay         before    OWCP discovered   that                  coal      mine
        employment        information    was inadequate.




                                              24
DELAYS IN INITIATING
---                            BENEFIT --
                                       PAYMENTS
        After    initially        approving      a claim     and identifying        the
responsible        coal mine operatorp            DCMWC sends a letter           to the
operator      outlining        its liability        for the benefit        payments.
If the operator            contests    the liability,          DCMWC begins      interim
benefit      payments to the claimant.                  DCMWC said it has adopted
this procedure           so claimants        needing     benefits     will   not have
to await the outcome of a lengthy                     legal    process.
         At the time of our review,          DCMWC began interim       payments
when it responded        to the operatorDs        notice    to contest    the
claim.      A DCMWC official       said payments usually         began within
30 days after       the operator      was notified.        Our review dis-
closed,     however,   that the time lag in responding              and begin-
ning payment was much greater             than 30 days.       In 15 of our
sample of 53 approved         claims,     the responsible       mine operator
identified      by Labor contested        the claim.       For these 15
claims,     the time lag from claim approval             to date interim
benefit     payments started       averaged     80 days.     The time lag
ranged from 15 to 173 days.
        In September        1975 we discussed         the interim    payment
procedures       with DCMWC officials.             After   our discussion      DCMWC
issued a policy         directive       that interim      payments   should begin
immediately       after     receiving       an operator's     notice   that it
will    contest     the liability         for benefits.       This revised
procedure       should    result      in benefit    payments being made
shortly     after     DCMWC's approval         of the claim.




                                           25
                                       CHAPTER 5
                                       -I__-
                       DELAYS IN CLAIMS APPEALS PROCESS
                       ----
        Under the act, the claimant            or a responsible          coal mine
operator     has the right        to contest     Labor's    decision      on a
claim.     Labor     attempts     to resolve     disputes      through    an  infor-
mal conference        with the parties        concerned.         If any issues
cannot be resolved          at the informal        conference,       any of the
interested      parties     may request      a formal     hearing     before    a
hedring    officer       in Labor's   Office     of Administrative          Law
Judges.
       Any of the interested             parties  may also appeal the hear-
  ing officer's    decision     to     the Benefits   Review Board.   The
  act provides   further     that      the Board's   decision  can be appealed
  to a U.S. circuit      court    of     appeals.
            Our review of 18 contested       claims    showed that DCMWC
does        not always give claims      prompt attention      during     the in-
formal         phase of hearing   disputed     issues.    DCMWC usually
took        7 months or longer    to complete      the informal     review.
OALJ        takes an average of 3 months to complete            a formal    hear-
ing,        and the Benefits    Review Board takes an average of 130
days        to decide an appeal case.
DELAYS BY OWCP IN ---
                  COMPLETING
THE INFORMAL HEARING PROCESS
--p---1_-




         If the medical       or nonmedical          findings      do not support
the claim of total          disability         due to CWP, DCMWC sends a
letter      to the claimant       stating        (1) why the claim was
denied,       (2) that the denial          is not a final          determination,
and (3) that the claimant               may submit additional             evidence
to support       the claim.       The claimant           is requested       to provide,
within      10 days, any evidence            that may support          the claim or
notification        of an intent        to submit such evidence.                If no
additional       evidence     is provided,          a final    letter     is sent
to the claimant         denying      the claim.
         For claims  initially        approved,        DCMWC notifies      the
claimant     of the benefit        payments to be received.              It also
notifies     the responsible        coal mine operator,            if identified,
of its liability       for benefit        payments and its right             to con-
test the liability.            According     to DCMWC, about 97 percent
of the operators       contest      their    liabilities.




                                           26          .
        The act does not provide                a means for compromising
differences       in disputed         cases informally,         such as payment
of partial      disability         benefits      or lump sum settlements.
Howeverp Labor's           regulations        state    that informal    conferences
are to be scheduled            with the claimant           and/or   the operator
to expedite       the handling         of contested        cases and to avoid
the need for a formal              hearing.        These conferences     are con-
ducted by a claims            examiner       who is a Deputy Commissioner.
No more than 20 days after                 the date of the conference,           the
Deputy Commissioner            must prepare         a memorandum on the con-
ference     containing        recommendations          for resolving    any dis-
puted issues.
         A copy of the memorandum is sent to the interested
parties,      who have 10 days to agree or disagree             in writing.
If any party        rejects  a recommendation      or requests     a formal
hearing,      the Deputy Commissioner       forwards     the case to OALJ.
Labor's     regulations     do not specify     how many days should
lapse between the date of the informal               conference    and the
date of case referral         to OALJ.
       DCMWC referred  169 cases to OALJ for formal   hearings
in fiscal    year 1975 and 879 cases in fiscal  year 1976.     We
reviewed    18 of the cases referred  in 1975 on which informal
conferences    had been held and found that:
       --1       to 9 months passed      between the time             DCMWC made its
             initial   determination      and the time it             scheduled the
             informal   conference.
       --3      days to 6 weeks passed after    the conference     before
             DCMWC prepared  and sent the required       memorandum on
             the conference   to the interested    parties.
       --6      to 10 days generally      passed before    the coal             mine
             operator     or the claimant    requested  the formal              hearing
             after    receiving  the memorandum.
       --1      to 16 weeks generally        passed         before     DCMWC referred
             the case to OALJ after         receiving          the   request   for
             formal  hearing.
       It took 7 months or more for most of the 18 cases to
go through     DCMWC's informal    review process.    One case took
14 months.      The longest   time lag in processing    generally
occurred    from the time DCMWC made the initial       determinatior
to approve or deny the claim until        it held the informal
conference.      In 11 of the 18 cases,     this phase took from
5 to 9 months.

                                          27            .
      According    to a DCMWC official,       senior    claims    examiners
were originally      supposed to conduct      informal     conferences.
However,   because of staffing      problems     the examiners      have
had to assume claims-processing         duties;     this has delayed
scheduling     and holding   the informal     conferences.
     Labor officials    said that,    although   informal    conferences
have served to narrow issues       in contested    claims,   they have
not been successful   in resolving     disputes,     largely   because
the act does not provide     any means for compromising         differen-
ces between parties.
TIME FRAMES FOR
m-m          ---- FORMAL
HEARINGS BY OALJ
      In fiscal year 1975, OALJ took an average of about 2
months to complete   a case. In fiscal year 1976 the average
time increased  to about 3 months.
         After    receiving      a case, OALJ assigns        it to a hearing
officer,        who establishes       a date and place for formal            hearings
in the claimant's            area and notifies      the parties     in the case.
After     concluding       the formal    hearings,      the hearing    officer
returns       to Washington,       D.C.,   to write     a formal   decision.
Copies of the decision             are given to the Deputy Commissioner,
who sends copies           to the interested       parties.
     OALJ received  the first            black lung appeal in fiscal
year 1975; through  June 30,            1976, it had received 1,048 cases.
As shown below, dispositions             have been made on 347 cases.
                                                                 Fiscal     year
                                                               1975          1976
  Carryover        from previous     fiscal    year                0           114
  New cases        referred                                      169           879
           Total   caseload                                      169           993
   Final     dispositions                                        -- 55         292

  Cases pending
         According   to OALJ national      statistics,      the average time
from the date a black lung case was referred                  to OALJ to the
date of a final        OALJ decision     was 54 days in fiscal       year
1975 and 89 days in fiscal           year 1976.        OALJ had 8 hearing
officers      during   most of fiscal     year 1975 and 16 during         fis-
cal year 1976 working        on black lung cases.

                                         28
       OALJ’s Chief Judge explained          that the increased        backlog
in 1976 resulted     from (1) delays       in completing      appeals     and
(2) suspending    work on appeals       from April     8, 1976, through
August   23, 1976, pending     resolution       of a Benefits      Review
Board decision    prohibiting     the use of hearing        officers      on
black lung cases.       (See p. 30.)
         The Chief Judge added that much of the backlog                   consists
of 449 widows claims           which may be barred           by the statute     of
limitations.           He said OALJ is awaiting           motions   for summary
judgment         from the Office     of the Solicitor         and that litigating
these cases on the merits              at this     time would be unjusti-
fied     in view of regulations          providing       for dismissal    of un-.
timely      claims     on motion   (before      issuance     of the regulation,
the Benefits          Review Board had ruled          that hearings    were re-
quired       in all such cases).         Thus, hearings        might put all
parties        to needless    expense.      He said it is hoped that
test cases involving           dismissal      of claims      on motion   now
pending        before   the Board will      resolve      this question    soon.
       The Chief Judge attributed              delays    in     completing     cases
to requests        for postponement        by interested         partiesp    including
attorneys       for claimants;       unavailability        of    witnesses;      re-
quests    for posthearing         delays    to take such         actions    as filing
briefs    and taking      depositions;        and loss of        experienced
hearing     officers     to other      agencies.
       He also said that many cases referred                  to OALJ are not
in a proper    posture     for litigation       in that investigations
have not been completed           and issues    have not been defined.
Thus, the hearing        becomes a vehicle        for investigation.
According    to him, hearings         are often     interrupted      to permit
time for further       investigation.
       Another   factor     the Chief Judge cited        was the act’s
requirement    that hearings         be held as close as possible       to
the claimants'      homes.      He said OALJ usually       waits until
enough cases arise        in an area to justify        the expense of
sending    a hearing    officer      to hold hearings.      This causes
delays   in scheduling        hearings.
APPEALS TO BENEFITS REVIEW BOARD
        If either   of the interested    parties   is not satisfied
with the OALJ decision,       the case can be appealed        to the
Benefits    Review Board.     This Board consists       of a chair-
person and two other members appointed           by the Secretary
of Labor.       The current  Board, appointed     April   1974, is
composed of two attorneys         and a workers'   compensation
specialist      from private   industry.
                                           29
       The Board received     its first   black lung case in May
1975; as of June 30,      1976,   it  had received   123 cases.     By June
30, 3976, it had acted on 57 cases and had a backlog            of 66
cases.    The table below shows the status         of those decisions
at that time.
            Decisions -                               Number

            Remanded                                     48
            Affirmed                                       4
            Dismissed                                      4
            Reversed                                     - 1
                                                        57
                                                       =
     According  to a Board        official,     it took an average of
130 days to decide appeal         cases.      The range was from 90
to 180 days.
       Some of the 48 remanded cases were            for action    consis-
tent with the Board ruling    in the Fields            case discussed
below.
       The Board chairperson        stated   that since the Board is
new, there are no legal         precedents     to aid in processing
the appeals.       The official     said that the Board has been
severely     hampered by the limited        number of professionals
(nine attorneys)      it has to deal with the large volume of
appeals    under the black lung program and under the Long-
shoremen's     and Harbor Workers'        Compensation  Act.    In addi-
tion,    most of the attorneys        are new and unfamiliar     with
the acts involved.
RULING BY BOARD TEMPORARILY
PROHIBITED USE OF HEARING
                      --  OFFICERS
        OALJ uses hearing      officers     to conduct    formal   hearings
on appealed       black lung claims.        However,   OALJ does not re-
quire     that its hearing     officers     meet the requirements         for
an administrative        law judge (ALJ) under the Administrative
Procedure      Act (5 U.S.C.     3105).     OALJ's practice      is based
on a Civil      Service    Commission   ruling    that the Federal        Coal
Mine Health       and Safety   Act does not require         the use of ALJs
qualified      under 5 U.S.C.      3105 to conduct     formal    hearings
on black lung claims         and that the absence of a statutory
mandate precludes        the use of such appointees.
         In November 1975 a coal mine operator     appealed  a
ruling     by a hearing  officer awarding benefits     to a miner            on

                                      30        .
 the basis that the act requires     that a formal  hearing                                     be
 conducted   by a qualified ALJ.    On February  26, 1976,                                    the
 Board ruled &/ that formal   hearings    must be conducted                                     by
 a qualified   ALJ.
          For Labor the Board's       decision   presented          a difficult
  and costly     dilemma.    Since the decision,           virtually         all                   coal
  mine operators,       as well as some claimants,             have lodged                         ob-
  jections     to the hearing    officers'     qualifications,             thus
. slowing    the   appeals  process.
        On March 23, 1976, the Secretary   of Labor wrote                                     to
 the   Chairman of the Civil  Service  Commission  that:
         'I* * * During       the period          pending        a decision            by
         the courts       of appeals         the Department             will       be
         responsible       for the payment of all black lung
         benefits      (30 U.S.C.        934) which are properly
         the obligation          of individual            coal operators.
         This Government           obligation         is anticipated               to
         be approximately           $20,000,000,           some of which,
         and the interest           on which,         the Department               will
         never be able to recoup from a coal operator.
         In addition       many coal operators                 will      refuse
         to go to a hearing             conducted         by a hearing
         officer      and none, in light              of Fields          will      pay
         benefits      to a claimant           when orderedto                do so
         by a hearing        officer.          The $20,000,000               cost
         described       above reflects           the latter           difficulty.
         So long as the Fields               decision        is in force             and
         so long as no duly qualified                     administrative                law
         judges are permitted              to conduct          black lung hear-
         ings it will        be impossible            for the Department
         to effectively          administer         the Black Lung Bene-
         fits    Program.        If this difficulty                 is not soon
         addressed       by the Commission              it may be years
         before     the Department           will     be able to pass
         on the cost of black lung benefits                           to the coal
         industry."
        In his letter,   the Secretary suggested    that the
 Commission    allow Labor to convert  its 16 hearing     officers
 to ALJs.     On July 6, 1976, the Commission    responded     to the
 Secretary,    stating that,  based on its review of pertinent

 L/James E. Fields             v. A.K.P. Coal Co. Inc.                    and Old Republic
    Insurance Co.,            B.R.B. No. 75-155 B.L.A.
statutes   and court decisions,     it believes       that the Board's
decision   on the Fields    case is in error.         It reiterated      its
1974 decision    that there    is no statutory      requirement     that
black lung cases be adjudicated        by qualified       ALJs.
        The Commission       also said that under its regulations           an
ALJ position       is defined       as one in which any of the duties
include    those which require          the appointment      of an ALJ under
5 U.S.C.     3105.      Since the act governing        the black lung pro-
gram does not require           the appointment     of an ALJ, the Commis-              I'
sion said it cannot comply with Labor's                request   to convert
its hearing      officer     positions     to ALJ positions.
        In the summer of 1976, Labor appealed         the Benefits
Review Board's    decision    on the Fields    case to the U.S. cir-
cuit    court of appeals.     It also sought a joint      congressional
resolution    to clarify   the matter   pending    outcome of the
appeals.
        On October     1, 1976, the Senate and House passed a joint
resolution     which provides       that qualified       individuals         appoint-
ed by the Secretary          of Labor may hear and determine               black
lung cases.        The term "qualified      individuals"         includes      hear-
ing officers       regardless    of whether     they are appointed            under
5 U.S.C.     3105.     On October     15, 1976, the joint          resolution
was approved       and became Public      Law 94-504.




                                         32
                                     CHAPTER 6
                                     w-e---
                      CLAIMANTS' ASSISTANCE PROGRAM
                      -----------------------
       Labor and HEW regulations            implementing      the Federal         Coal
Mine Health      and Safety      Act state     that claimants       shall      be
provided     with assistance        and information       in filing      claims
and understanding        the act*s     requirements.        However8 many
black lung claimants         were not given adequate            assistance
during    their   claims    processing      and were not provided            infor-
mation on eligibility          requirements       for benefits.        In addi-
tion,    many claimants      were frustrated         in attempting       to find
out about the status         of their     claims.
ASSISTING CLAIMANTS IN FILING
----------------------------------          CLAIMS
       Although      Labor is responsible            for processing         black
lung claims        under title     IV, part C, of the actf claimants
are contacted        through    SSA personnel          at district      offices.
SSA's procedures          (20 C.F.R.       725.123),      as well as its agree-
ment with Labor,          state  that the district            offices     shall
assist    claimants       in obtaining       whatever      evidence     may be
necessary      to establish      eligibility         for benefits.          This
assistance       is to include       explaining        the requirements          of
the act, OWCP's claims           adjudication         processI       and claimants'
rights    of appeal under the act and answering                      any questions.
       OWCP prepared        pamphlets      on the black lung program
which contain       detailed      information      on why, how, and where
claims     are to be filed.          OWCP said that copies            of the
pamphlets     were sent to all SSA offices                 with instructions
to distribute       them to claimants.           Yet B SSA district          offices
were not giving        claimants       adequate    assistance       in filing
claims     or adequate      information       on eligibility        requirements.
For example,      9 of the 10 district           offices       we visited     were
not usually      providing       OWCP's black lung pamphlets              to the
claimants.       Four offices        did not even stock the pamphlets.,
     -Claimants      have often    complained     about the lack of
adequate    assistance.       For example,      11 of the 44 claimants
we interviewed       in Colorado    complained      that they had not been
given information        on their   rights    under the act and on how
to appeal 0WCP"s denial          of their   claims.
       The OWCP task force      interim    report    on the black lung
program    issued in July 1976 also discussed            this     problem.
The report     said Labor was continuously         receiving        many
complaints     from the public     that SSA district         offices     either
were uncooperative      or provided     inaccurate     information         about

                                          33
the program.     The report      said individuals      complained  that
the SSA district     offices    had refused      to help them file
claims,   gave erroneous     information      about eligibility,     and
generally   were uncooperative.
NO COMMUNICATION
-w-----P    ------ ON STATUS
                       -------------OF CLAIMS
       Under OWCP's arrangements        with SSA, once a district
office   sends a claimant's      file   to OWCP the office  drops                  out
of the adjudication      process     and gets no feedback  on the                  fur-
ther processing     of the claim.
       Nevertheless,         claimants     still      return   to the SSA dis-
trict   offices       to seek information           on their     claims.        But,
because the district            offices    lack the information,              they are
unable to advise          claimants     on the status        of their       claims.
Claimants       therefore     generally       have no knowledge          about their
claims    until     OWCP makes an initial            determination        to approve
or deny the claim or until              OWCP asks them to provide                evi-
dence it needs to evaluate              their     claims.      As discussed          in
chapter     4, many months may pass before OWCP would contact
the claimant.
       A major concern         of many claimants         interviewed        in
Colorado    was the fact that they received                 no communication
from OWCP about the status            of their      claims       for long periods
of time.     Our review of the 44 claimants'                  files     showed that
their   complaints      were valid.       For example,           a widow filed
a claim with SSA on January            6, 1974, and OWCP received              it
on January     29.    On December 2, 1974, she asked OWCP about
the claim's     status.        She made a second inquiry              in May 1975.
OWCP did not respond to either             inquiry.         OWCP did not con-
tact the claimant        until    August 15, 1975, when she was re-
quested   to submit medical         evidence     to show that her husband
died of CWP.
      DCMWC officials   said          that standard     operating         procedure
is not to answer inquiries              on claims   because of         the added
work involved.




                                          34
                                         CHAPTER 7

                        LACK OF EFFECTIVE ACTION BY LABOR
                        TO ALLEVIATE             STAFFING PROBLEMS
       A factor   apparently    contributing      to the problems      we
noted is that DCMWChas not had sufficient               staff  to handle
black lung cases.       These problems        and the lack of sufficient
staff    were noted early    in the program by Labor's         internal
reviews.      However,  no effective       action   was taken to correct
the problems.
        The Employment Standards            Administration        in Labor's    na-
tional      office    is responsible      for supervising        and monitoring
DCMWC's administration           of the black lung program.              These re-
sponsibilities          include  providing     direction      and guidance,      es-
tablishing         and issuing   regulations       and policies      to implement
the act, and providing           DCMWC with the necessary            resources     to
carry    out the program efficiently             and effectively.
REQUESTS FOR OWCP STAFFING
       The table  below shows OWCP staff     requests   for the black
lung program for fiscal    years 1973-77 along with the positions
approved   by Labor and the Office   of Management and Budget
 (OMB), those authorized    by the Congress,     and those allocated
to DCMWCby Labor.
                                                                                 Postions
             Requested                                          Approved     allocated    to
Fiscal          by            Approved           Approved        by the     DCMWC by Labor
 year        OWCP/ESA         by Labor            by OMB        Congress       (note a)
 1973            200                95              95             95                 91
 1974            215           b/327               154            154             145
 1975            145           - 145               145            145             145
 1976            145              145              145            175             175
 1977            165              165              165            165             165

a/Table      excludes        temporary      positions.
b/Includes       positions        for    field         staff   to develop   claims.
       For fiscal     year 1973, OWCP/ESA requested         200 positions
 to plan Labor's      assumption  of responsibility       for the black
lung program.       Labor reduced the request         to 95, and this     re-
quest was approved        by OMB and by the Congress        in the second
supplemental      appropriation   for fiscal      year 1973.     Labor made


                                                  35
this reduction   because of uncertainty about the pending  legis-
lative  amendments of 1972 and the date the legislation   would
be enacted.
Fiscal-year-1974
       In August 1972, OWCP/ESA estimated                 that DCMWCwould need
215 staff     positions     for the black lung program for fiscal                   year
1974. Labor,       in October      1972, requested        its Special      Projects
Staff    to establish     Department-wide          needs for the black lung
program.      The Special       Projects     Staff   projected     a need in Labor
for 511 positions--       333 for OWCP/ESA and 178 for OALJ, the Of-
fice of the Solicitor,           and other      Department-level       offices
involved    with the program.            The 333 positions       allocated       to
OWCP/ESA included        positions       for a field      staff  to handle ini-
tial   development      of claims      at the local       level.

       Labor included  327 of the 333             staff    positions   projected
for OWCP/ESA by the Special       Projects           Staff    in the fiscal     year
1974 budget estimates    submitted      to        OMB. However, OMB author-
ized only 219 positions.      Of these            219 positions,      Labor as-
signed   65 to OALJ, the Solicitor's              Office,     and other support
units   and 154 to DCMWC.
       The Congress       approved    the 154 positions        for OWCP for
fiscal   year 1974.         During the year,   however,        the Director
of OWCP reduced DCMWC's authorized            staff      from 154 to 145.
The Director      transferred      the nine positions        to the longshore-
men's program,       which was experiencing         similiar      problems  in
claims   backlog.     L/
        OMB and Labor officials        said that OWCP's initial              staffing
request      was reduced for three       reasons.         First,    OMB believed
that SSA had been given enough staff                 to handle the processing
responsibilities       for Labor's     black lung claims             as well as its
own.     Thus, OMB deleted       the request       for a field         staff and in-
structed       Labor to use SSA field       offices.         Second, since Labor's
program would be new, there was uncertainty                      about how many
claims    would be filed.        OMB wanted Labor to gain experience
with the program to determine           how much staff            would be needed,
And third,       Labor estimated    that claims        filings       for the pro-


i/See    our report   to the Senate Committee      on Labor and Public
   Welfare   entitled    "Improvements    Needed in Administration     of
   Benefits    Program for Injured      Workers Under the Longshoremen's
   and Harbor Workers'       Compensation    Act" (MWD-76-56,    Jan. 12,
    1976) o
gram's  later  years       would decline  considerably.       OMB was re-
luctant   to approve       a large permanent    staff   which would not
be needed later.

-Fiscal-year-1975
       Labor    did not    request  additional       positions     for   fiscal
year   1975.      In its   1975 budget,     Labor    stated:
       "The Black Lung Program expects        to receive  38,000
       claims    in FY 1975 and should be able to process
       these in a timely        and efficient manner with the
       resources    available."

       The Assistant      Secretary   for ESA also testified          in March
1974 at the fiscal        year 1975 House appropriation          hearings
that ESA was not experiencing           any problems     in operating      its
black lung program and that it was able to process                  claims     in
a timely    and efficient      manner with the staff       available.        Thus,
the Congress approved         the 145 staff    positions    requested      for
fiscal   year 1975.

        Contrary     to this    testimony,     Labor's     Office     of Internal
Audit    had reported       that administrative         weaknesses        and problems
did exist       in DCMWC's claim processing            system and that addi-
tional    staff    probably     was needed.       In their      report,     the in-
ternal    auditors     noted backlogs      in clerical        and payment serv-
ices,    as well as claim processing,             and concluded         that DCMWC's
staff    was probably       too small to handle its workload.                  The As-
sistant     Secretary     for ESA agreed that staffing              levels     should
be assessed.
        During    fiscal     year 1975, other      internal      reviews   and man-
agement studies          were made of the black lung program problems.
A management study made by ESA's Division                   of Management Systems
and Organization          concluded    in early    1975 that DCMWChad major
workload      and productivity       problems.       According      to the study
report,     the trend of receiving          claims    at three times the rate
at which they were adjudicated              was causing       the backlog    to
mount at a rate exceeding            1,700 claims       per month.       The report
concluded      that the situation        clearly     was bad and was getting
worse.      It estimated        that DCMWC would need 50 additional             staff
positions      just    to meet its incoming        workload.
       In January  1975, OWCP completed    its own study and issued
a report   to the Assistant   Secretary  for ESA that again de-
tailed   DCMWC's internal   weaknesses  and problems   in claims pro-




                                         31
cessing.     This study also commented on the inadequate                 re-
sources   provided.      It   cited    the   fact    that   DCMWC had received
only one-half      the resources       estimated       necessary  to operate
the program.       The report      concluded      that:

       “While we are making every effort          to maximize
       the current     DCMWC resources    and streamline      its
       operations,     it appears inevitable      that additional
       resources   will   be made available     to keep the
       program afloat.    ”
       The only action    by Labor during    fiscal   year 1975 was to
grant OWCP authority      to hire nine temporary      employees    and to
authorize   some overtime    to help reduce the backlog.         According
to a DCMWC official,      the claims  backlog     was not affected    much
by these actions.
Fiscal-pear-1976
       Labor again did not request       any additional     positions    for
fiscal    year 1976.     According  to Labor officials,       the black
lung workload      was declining   and the benefits     program under the
act would terminate       by,1981.    In its budget submission        to the
Congress,     Labor stated:
        “In FY 1976, some 15,000 Black Lung claims                     are
       anticipated.          At present,      each examiner       has a .
       backlog      of almost 1,500 pending claims.                 While
       this    is more than double the normal load in a
       program of this nature,             many of the claims          on
       hand are those awaiting             adjudication       upon
       settlement        of court cases.          The reduction      in
       claims     inflow     will    allow  the examiners        to catch
       up on their        current     work and provide        timely
       service      to the new claims         filed     in FY 1976.
       While all problems            will  not be resolved        by the
       end of FY 1976, it is likely                 that by the end of
       the year,       nearly     all claims      can be processed
       on a timely        basis.”
        The Congress approved         the     145 staff   positions     requested
for   fiscal  year 1976.
        In July 1975 the Assistant    Secretary for ESA was again
advised    of the internal   problems  caused by inadequate       resource
allocated     to the black lung program in a report      prepared     by
the Associate      Director of DCMWC. The report    stated     that
      “AS we have discussed     on enumerable             occasions
      staff resources   continues   to be the             single    most


                                         38
      significant  factor       causing    processing      delays
      and the concomitant        congressional       interest     in
      the Program * * *.
      "Presently    each of the 36 claims examiners
      carries    an average caseload         of 1,300 claims
      with the more senior         examiners     carrying    up to
      2,000 claims.       An optimum caseload           per examiner
      in workers'     compensation       programs     is 500 cases
      per year.     No formal      adjustments      have been made
      in resource     levels     to absorb the additional
      workloads    other     than some periods        of overtime
      and the hiring       of nine temporary        clerks.    * * *'I
The report  further  stated        that 82 additional temporary             staff
positions  would be needed         for from 1 year to 18 months             to
reduce the workload.
        In July 1975 the Assistant          Secretary       for ESA asked the
Secretary     of Labor to seek authority             from OMB to hire 100
temporary     employees     for up to 18 months.            The Secretary,     in
October    1975, proposed        to OMB that 60 full-time,          permanent
positions     authorized      for SSA be shifted         to ESA.    In response
to this proposal,         OMB advised    Labor to negotiate         the matter
with SSA. The two agencies            entered      into negotiations,       but
the matter     could not be resolved.            Subsequently,      Labor made
funds from its appropriations            available       to DCMWC to hire 18
temporary     employees     in late summer 1975 and another              22 in
January    1976.      By the end of fiscal         year 1976, DCMWC had re-
ceived authority         to hire 79 temporary          employees.
      The Congress provides
      additional  permanent-staff
      We noted that in the Second Supplemental         Appropriations
Act, 1976, enacted June 1, 1976, the Congress          authorized      30
new permanent  positions   for the black lung benefits          program.
Labor had not requested    these positions.        This increased      the
total  number of permanent    positions    to 175.
       The Congress added the new positions   because of concern
that personnel    deficiencies  were a major cause of the large
case backlog.     The House report  A/ on the appropriations   bill
stated   that:


L/House   Rept.   No.   1027,   94th    Cong.,   2d Sess.,     46 (1976).




                                       '39       .
         '* * * The Surveys and Investigations              Staff     of
         the Committee       recently   completed     a study of
         the processing        of black lung claims      and concluded
         that,   among other things,        personnel    deficiencies
         were a major cause of the large             case backlog       in
         the program      (currently    about 48,000 cases).           The
         Committee     is very concerned        about the inadequacy
         of claims     processing     in the program and hopes
         that these new positions          will   help to improve
         the situation."

Fiscal    - year   1977

        Labor requested     no increase      in staff     for the black        lung
program     in fiscal   year 1977.      In fact,      Labor called   for        a re-
duction     in permanent    positions     from 175 to 165.
        In its budget submission        to the Congress,       Labor said it
anticipated       that 6,000 new black lung claims          would be received
 in fiscal     year 1977 and that the backlog          would decline      to
between 15,000 and 20,000 claims            by the end of the fiscal
year.      Labor stated     that,  with the projected       decrease    in
claim filings        and decline   in backlog,     only 165 permanent        black
lung positions        would be',needed.     Labor proposed      to allocate      10
positions      to the longshoremen's      program.
         The Congress approved   the 165 positions.               In addition,
Labor     received   approval to hire 50 temporary              employees   during
fiscal      year 1977.
FUTURE STAFF NEEDS
---
        The July 1976 OWCP task force          interim     report      discussed
the continuing     staffing     problem.      According      to the report,
there was little       guestion    that not acquiring          additional      staff
contributed     to the program's       problems.       The report        said that
the appropriate      level    of resources     and staffing         for the pro-
gram had not been determined.             It indicated       that ESA needed
to take action     to resolve      its resource      problems.
        In a November 1976 report,      Labor's      Office   of Organization
and Manpower Utilization      recommended a total           of 218 permanent
positions    for DCMWC. This was felt         sufficient      to process    on-
going workloads    and preclude    further      buildup     of the backlog.
        The report    stated   that the proposed        staffing      level  and
composition      was based on (1) improved         systems,      procedures,
and distribution        of tasks,     (2) an improved      organizational
structure,      and (3) an improved       balance   of skills,       with which
to efficiently      process    claims    within   an average       of 180 days.


                                          40
    The report     had concluded       that   OWCP’s fragmented           and piecemeal
    claims   processing      was contributing       to the slow         processing    and
    the increase       in the backlog.

            As of May 18, 1977,       ESA said        efforts    were underway       to
l
    develop    detailed     plans for     organizational         changes,    procedural
    changes,     and additional     staffing        in line     with   the recommenda-
    tions    in the two reports.




                                                41
                                 CHAPTER 8

              FACTORS-AFFECTING-THE-DENIAL-OR-APPROVAL
                      OF-LABOR.BLACK        LUNG-CLAIMS
       According    to Labor officials,        the low rate of approval
of black lung claims        is affected      by several      factors    beyond
their   control.      For instance,      more of the miners who either
do not have complicated          CWP or could not meet other eligibility
requirements     have filed      with Labor,     and lower dust levels           in
the coal mines since 1969 have decreased                the incidence        of CWP.
Also,   OWCP has had to use more stringent              interim      medical   cri-
teria   in adjudicating       claims   than SSA.
      Also,  the 3-year  filing  requirements             for certain   miners
and widows caused some otherwise       eligible           claimants   to be
denied benefits   because of late filings.
RESIDUAL-CLAIMANT-POPULATION
        OWCP believes  that during        1973, the last year of SSA's
program,   coal mine operators       urged miners     to file       claims     under
the SSA program because there was no operator               liability        for
benefits.     As a result,    older miners,       who had worked many years
in the mines and who were thus more likely              to have either           com-
plicated   CWP or simple CWP and sufficient           coal mine employment
to meet the act's     15-year    disability     presumption       provisions,
had filed   with SSA.
        An OWCP official    said that Labor got residual       population
claims--from      miners who either      (1) do not have complicated
CWP or have simple CWP but cannot meet other eligibility                re-
quirements    such as years of mine work and/or         the standards       for
breathing    capability   that Labor must use or (2) may not have
black lung at all but sign up because they may not understand
the law's    eligibility    requirements.
        According      to Labor officials,            the major difference       be-
tween claimants          under the two programs            is that SSA's claimants,     .
particularly       those who filed          in the earliest        years of the pro-
gram, have tended to be more severely                    disabled     than Labor's
claimants.        Labor added that practically               all of its claimants
are unable to use the 15-year                disability      presumption    and must
establish      the existence        of the disease         by X-ray or other means.
Labor said this often            requires      claimants     to undergo a number
of different       medical     tests    and evaluations,          which adds to the
time required        to complete       action     on the cases.



                                       42
       Neither    OWCP nor ESA officials    were able   to                                estimate         how
many claims     were from miners     who had neither  the                                 required
number    of years   in the mine nor the disease.

LOWER DUST LEVELS                IN    COAL MINES
                                                -
         Title     II of the 1969 act requires                coal    mine operators
to (1) reduce          dust  levels        to meet    Federal      standards   and (2)
provide        employees    with      periodic     X-ray    examinations      so that
CWP can be detected             early      and miners     can be afforded        adequate
protection.

        ESA, in March 1974 House hearings                               on its    fiscal         year
1975 appropriations,          cited    the act’s                    dust   standard           require-
ments     as a reason   for     the decline      in                 claims     approval.             The
Assistant     Secretary     for     ESA stated:

          I’* * * It would               seem    that    these        mandatory         obligations
           [1969 act]          on the part          of the coal             operators        are
          beginning          to show results.                 Liability          for    bene-
          fits     also      serves        as an incentive              for    the coal
          operator         to lower         dust    levels.           The suppression
          of dust        levels        in the mines           is apparently             lowering
          the incidence              of the disease             and periodic            X-ray
          examinations            have reduced            its    severity.             Large
          number       of Department             of Labor        claims        are from
          individuals            with      only    mild     nondisabling             stages
          of the disease               who do not meet              the standards            of
          total      disability.             * * *‘I

          Also,      the Associate          Director      of DCMWC said                 that    ESA as-
sumes       that     dust   level      control       will   continue to                improve,    re-
sulting         in   a lower      incidence        of the disease.

MORE STRINGENT-MEDICAL                      STANDARDS
USED ON LABOR CLAIMS    I_---
                                         ---

        OWCP is required      to use more                      stringent      medical criteria
in adjudicating       black   lung claims                      than SSA used under         its
program.        OWCP has estimated      that                   its     rate of claim  approval
would     increase   by about    7 percent                     if    it used the SSA medical
standards.

         In considering      the Black        Lung Benefits         Act of 1972,    the
Congress     expressed      concern      that    under     the 1969 act less      than
50 percent       of the black       lung claims        had been approved.         Thus,
its   intent     under   the 1972 amendments             was to liberalize       and
expedite     eligibility       determinations          for    claimants.    A Senate




                                                      43             .
Committee      on Labor and Public      Welfare   report    l/ directed     the
Secretary      of HEW to establish      more liberal     disability     evalua-
tion criteria.       The report    stated:
        "Accordingly,         the Committee         expects      the Secre-
        tary to adopt such interim               evidentiary          rules
        and disability          evaluation      criteria      as will
        permit     prompt and vigorous           processing         of the
        large    backlog      of claims      consistent       with the
        language      and intent        of these amendments.
        Such interim        rules     and criteria        shall     give full
        consideration         to the combined employment                  handi-
        cap of disease          and age and provide            for the
        adjudication        of claims      on the basis of medical
        evidence      other than breathing             tests    when it is
        not feasible        or practicable          to provide        physical
        performance       tests     of the type described               in
        the above cited          section     from the Secretary's
        annual report."
          In 1972, HEW adopted     interim   criteria      for determining
eligibility       for black lung benefits        in its revision      of the
regulations       to implement   the 1972 amendments.           These regula-
tions,      which became known as the Interim           Standards,    provide
for a more liberal         basis of entitlement       than the permanent
criteria       in the following    ways:
        --They      provide     a rebuttable         presumption    for all
           miners,       regardless       of age, that simple CWP
           identified         by X-ray,      biopsy,     or autopsy    is
           totally      disabling,        whereas under the permanent
           criteria        only complicated          CWP is presumed
           to be totally          disabling.
        --They     apply more liberalized    values    of the
           breathing     tests to all miners    regardless    of
           age.
       Based on its interpretation        of the 1972 amendments,      when
HEW published      the Interim   Standards,    it restricted   their    use
to claims    filed    under SSA's part B black lung program.          HEW
required    OWCP to use the more restrictive         permanent   standards                       *
for its claims.
        Labor disagrees    with HEW's position,  contending                          that
using    two*sets   of standards  for the two programs     is                      inequitable


i/S.    Rept.    No.    743,    92d Cong.,         2d Sess.,     18 (1972).

                                              44
and has no basis        in law.   In a June 26, 1974, letter       to HEW's
General    Counsel,     the Chairman of the House Committee        on Educa-
tion and Labor said that the Committee             completely  agreed with
Labor's    position     and that it was anxious      for HEW to resolve
the matter.        In late 1974,    after  a joint   review by HEW and
Labor,   HEW changed its position         and agreed to extend the In-
terim   Standards     to Labor's    black lung claims.
       In May 1975 Labor requested          permission      from OMB to adopt
the Interim     Standards.      OMB's permission        is necessary       because
use of these standards         will  result    in additional       benefit      out-
lays,   which Labor estimates       will    amount to $129 million            through
1981.    According     to an OMB official,        increased     costs were a
factor   in denying      Labor permission      to use the Interim          Standards.
        A 1974 OWCP study revealed          that if OWCP were permitted       to
use the Interim       Standards,      its black lung claim approval      rate
would increase      by about 7 percent.          Also,  the Associate  Director
of DCMWC said that using these standards               would improve DCMWC's
ability    to process     claims--   and thus help reduce the backlog--
because claims      examiners      could spend less time developing        other
medical    evidence    when claimants       fail   to meet the more restric-
tive breathing      test standards        now in use.
GAO-REVIEW-OF-SSA-APPLIeATIOM
FINTERIM    STANDARDS
        At the request       of the Subcommittee           on Intergovernmental
Relations        and Human Resourcesl        House Committee         on Government
Operations,        we reviewed      and commented on l/ the use of the
Interim      Standards     on black lung claims          fiTed with SSA. We
were asked to look into an allegation                  that claimants        who were
not medically         or physically     disabled      due to black lung have
been found eligible          by SSA and awarded benefits              under the
Interim      Standards.       In citing     various    practices      through    which
black lung benefits          have been improperly           awarded,     the allega-
tion    inferred      that SSA awards such benefits             without     regard    to
age.      We   reported    our  belief    that    SSA  ignored     the   varying   ef-
fect    of age differences          in applying     the Interim       Standards     to
all miners.


i/See    our report    to the Subcommittee            entitled    "Examination        of
   Allegations     Concerning   Administration              of the Black Lung
    Benefits   Program"    (MWD-76-72,    Jan,        14, 1976).




                                           45
            Senate Report No. 92-743# while             indicating        that the
    interim     criteria      were expected      to contain     liberalized      provi-
    sions for adjudicating              claims of older miners suffering             from
    black lung,        regardless       of the degree of functional           impairment,
    refers    to certain       distinctions      in the case of a younger miner.
    It states       that:
           "On the other hand, a younger miner might not
           be so severely    handicapped      unless the disease
           had produced   sufficient     functional    limitation
           that he is unable to meet the work demands of
           coal mine employment      as determined     by medical
e          evaluation."
            The Interim    Standards      presume that simple CWP is totally
    disabling     without   distinguishing       between older  and younger
    miners.     The standards       provide,    however, that the presumption
    of total    disability     due to simple CWP may be rebutted        if
           ‘I*   *
                     other evidence,
                     *
                                        including     physical     performance
           tests    (where such tests     are available      and their
           administration     is not contraindicated),          establish
           that the individual       is able to do his usual coal
           mine work or comparable        and gainful     work."
          According    to SSA officials,          however,      SSA has not routinely
    sought additional      evidence    to confirm        disability.         SSA applied
    the presumption      of total   disability        due to simple CWP to all
    miners based on the assumption             that a miner of any age with
    any degree of CWP would find           it impossible          to secure coal mine
    or comparable     employment    because of the potential              liability
    of the employer      and the general         unavailability       of comparable
    work in areas where most applicants               reside.
            We concluded     that HEW's application         of the Interim    Stand-
    ards did not recognize        the need to substantiate          by medical
    evaluation     a functional     disability    inhibiting      a younger miner
    from being able to work.
             SSA officials     agreed that if physical          performance       test
    results     were made part of the claim file,             they could be used
    to rebut an allowance           under the Interim      Standards.        The of-
    ficials     stated,     however,    that the extremely       limited     resources
    for doing physical         performance      tests dictated       against    the
    routine     development      of such evidence.       They said that the few
    facilities       with the skills       necessary  to perform        the testing
    were willing         to do only one or two tests         per week and were
    often not willing         or able to become involved           on a full-time
    basis.



                                             46       "
            Also according       to SSA officials,       most of these facilities
      are located       in urban centers    removed from coal mine areas or
      in States     without    many coal miners.       Thus because these limita-
      tions   existed     and all claimants      could not be tested   within
      reasonable      time frames,   such tests      were not actively   solicited.
              The proposed     Black Lung Benefits          Reform Act of 1975 (House
      bill    10760) would have required            that criteria      and standards
      no more restrictive         than HEW's Interim         Standards      be equally
      applicable       to part C claims       filed    under Labor's      black lung
      program.       In its report      l/ on House bill        10760, the House
      Committee      on Education     a';id Labor concluded        that the Congress
      did not intend,        as HEW so unequivocally           asserted,     that the
      Interim     Standards    apply only to part B claims              under the SSA
      program and not to Labor's            claims.
            The House passed House bill              10760 on March 2, 1976.               How-
      ever,  the 94th Congress adjourned              before the Senate acted              on
      it.
            House bill      4544 and Senate bill          1538, revisions     to the
      black lung program,       were introduced         in the 95th Congress.
      These bills     contain   a provision      requiring       the use of criteria
      and standards      no more restrictive        than HEW's Interim        Standards
      in Labor's    black lung program.          On March 31, 1977, the House
      Committee   on Education       and Labor reported          2/ favorably    on the
      House bill,     and on May 16, 1977, the Senat;               Committee
      on Human Resources       reported     3/ favorably        on the Senate bill.
      Both bills    were pending      in tEe Congress         at June 15, 1977.
              Whether Labor should be authorized         to use the more liberal
      standards      is a matter   for the Congress    to decide.         We believe,
      however,     that if Labor is authorized       to use the more liberal
      Interim    Standards,    care should be taken to substantiate             by
      medical    evaluation     the degree of functional     disability       inhibit-
      ing the claimants,       especially  the younger miners,          from being
      able to work.
      THREE-YEAR.FILING-RULES
              The act places certain           time limits    on black lung claims
* $   filed    with Labor on or after            January   1, 1974.   The act requires
  B
                      ----
      L/H.    Rept.   No.    770,   94th   Cong.,   1st   Sess.   13-18      (1976).
      E/H.    Rept.   No. 151,      95th   Cong.,   1st   Sess.   15 (1977).
      z/S.    Rept.   No. 209,      95th   Cong.,   1st   Sess.   13-14-28       (1977).
that living       miners     file    claims    within     3 years of the date of
their       last coal mine employment             to be eligible    under the 15-
year rebuttable         presumption.         A claimant      who is a miner's
widow must file         within    3 years      of her husband's      death.   Under
this provision,         claims    filed     after     the required   dates would
be denied even if the miner or surviving                      widow met all other
eligibility       requirements.
Living-miners'-claims
      Under the 1972 amendments,           a miner whose X-ray is nega-
tive  for CWP may still     qualify      for black lung benefits        if
other evidence   demonstrates       the existence      of a totally     disabl-
ing pulmonary   or respiratory        disease    and the miner has 15 years
or more of coal mine employment.             The act, however,      requires
that such miners   file    within     3 years of the date of their           last
coal mine employment.
      OWCP statistics     do not list   the number of living           miners
whose claims     are denied because of the 3-year          provision.         How-
ever,   in  our  review  of 96  claims,   75   were   denied   and    37   of
these were from miners who may have qualified              under the 15-year
presumption     but who had not filed     within    the 3-year      limit.
        For example,     one miner's     X-ray was interpreted       by OWCP
as negative,      but his other medical         tests  met the total    dis-
ability    standards     and he had more than 15 years of coal mine
employment.       Thus, he would have been eligible           for benefits
had he filed      within   the required      time.    But his claim had to               *
be denied because his last           coal mine employment       was in 1968
and he filed      his claim   in 1974.
Widows'-claims
        The amended act provides            that widows of deceased miners
may qualify    for black lung benefits             if the miner is determined
to have been totally           disabled     from CWP. However,          section    422
of the act requires          that these claims        be filed     within     3 years
of the date of the miner's              death.   As of February         29, 1976, of
31,314 black-lung        claims      denied by Labor,       6,472 (21 percent)
were widows'     claims.         OWCP officials      said that there is an
unknown, but probably            large   number of widows who could have
qualified    on medical        and employment     evidence,      but the claims
had to be denied because they were not filed                    within     3 years.
       The OWCP task force     estimates,         based on a study of
widows'   denials   in February     1976,      that when all survivors'
claims   are determined,    80 percent         of the denials   will  be




                                        48
directly      attributable      to the statute       of limitations.  Also,
in our sample of 96 denied             claims,   20 had been filed   by widows.
Nineteen      of these had been denied         because they had not been
filed    within      the 3-year   statutory    limit.




                                     49
                                  CHAPTER 9
                                  II-
                     CONCLUS'*'-'.d&r
                     ---           - RECOMMENDATIONS,
                                            --_I-
                           AND AGENCY COMMENTS
                           --         -I_-
CONCLUSIONS
----
         The 1972 amendments to the act,             in addition       to in-
creasing     benefits    and extending        coverage,     were intended
to liberalize        and expedite   eligibility         determinations
for benefit       payments.     However,      claims    are not being
processed      in a timely    manner,    resulting        in a large      back-
log of claims        and long delays      in paying benefits           to
eligible     claimants.
        As of June 30, 1976, OWCP had received              92,727 claims;
it had adjudicated        42,281 and had a backlog          of 50,446.
Of the 42,281 adjudicated          claims,     only 8 percent     (3,233
claims)    were approved      for benefits.         As a result,   only
about $22.5 of the $83 million             appropriated     to the special
benefits    fund for fiscal       years 1974, 1975, and 1976 was
obligated     to pay miners and their          survivors    compensation
and medical     benefits.
        At the time of our review,           long periods        elapsed  between
the time claims         were filed    and the time they were finally             ad-
judicated.        The average processing           time was 256 days for de-
nials    and 366 days for approvals;             the average processing
time for all claims         had increased        to 630 days by fiscal        year
1976.      During   these long periods,          claimants      often were unable
to find out the status           of their    claims      because OWCP, to cope
with the backlog,         adopted   a policy       of not interrupting
work on claims        to answer claimants'           inquiries.
        A major factor      identified      by several         recent   Labor studies
as contributing        to delays      in claims       processing      and poor pro-
gram performance         is inadequate       staffing      at OWCP. Labor's
efforts     to alleviate      this problem        have been limited         to author-
izing    the hiring      of additional      temporary        staff    and paying   over-
time.
       In 1976, because of its concern         about the program,         the
Congress took the initiative         and, without      a request     from
Labor,    authorized   30 new permanent     positions.        In fiscal     year
1977 Labor allocated      10 positions    to the longshoremen's           com-
pensation     program,  which also had a claims         backlog.       The ques-
tion remains of whether       the staff,    even with the addition           of



                                        50         .
    the     20 new permanent         positions,       will  be sufficient        to allow
    for     timely processing         of claims       and reducing     the    backlog.
           Nevertheless,        the problem of timeliness            could be some-
    what alleviated        by improved      administration         and claims-
    processing      procedures.        OWCP uses sequential,         piecemeal     proc-
    essing procedures        that cause claimants'           files     to be reviewed
    many times by the claims             examiner,    with long delays         between
    reviews,     resulting      in an inordinate        amount of time passing
    before    the processing         is complete.       We believe       that OWCP should
    review    its claims-processing           procedures    with a view toward
c   reducing     the delays       between processing       steps.

           Other problems   contributing       to delays     in claims  process-
    ing which are not directly         related   to staffing      and on which
    action    could be taken are:
            --SSA district         offices'     inadequate      development      of
               individual       claims.
            --Delays      in the informal  hearings     of contested
               claims     by OWCP and formal   hearings    by the OALJ.
            --Lack      of effective       guidance     to claimants      when
               filing     their    claims.
           OWCP also needs to establish                 a program      to give   claimants
    information    on the status of their                claims.
             Regarding     the number of claims            denied or approved,      Labor
    receives       many of its claims           from miners who are less likely
    to have complicated             CWP or enough years of coal mine work
    to come under the disability                  presumptive    provision    of the
    act.       Moreover,     Labor has not been allowed             to use the more
    liberal      Interim     Standards       adopted by HEW for determining
    disability        and eligibility         for benefits.       Labor officials
    have estimated         that,      if they were allowed        to use the more
    liberal      standards,      their     rate of approval       would increase
    by about 7 percent.
             It should be noted,       however,  that in applying  the Interim
    Standards      SSA applied     them to all miners and did not substan-
    tiate      by medical  evaluation     the degree of functional    disability
    inhibiting      a younger miner from working.
            During  the 94th Congress,  legislation   was proposed                    which
    would    have allowed   Labor to use the more liberal    Interim



                                               51
Standards.   However,     the Congress   adjourned without   enact-
ing the proposed   legislation.      Should Labor be authorized
to use the Interim    Standards    in the 95th Congress,   Labor
should be directed    to see that the degree of functional
disability  of the claimant     is substantiated   by medical
evaluation.
       Another     factor    that has affected       the denial       or ap-
proval    of claims       is the 3-year    filing    provision.        Many
claims    from miners have been denied because they failed
to file     for benefits       within  3 years of the date of their
last    coal mine employment.          Also, many claims          from widows
have been denied because they had not filed                    within    3 years
of their      husbands'     death.    OWCP officials       believe     that many
of these claimants          would have otherwise        qualified      for bene-
fits.
       Further, our review      showed that additional      miners
might be found eligible       if OWCP would adopt a policy
of having all X-rays     reread.      Generally    OWCP rereads    only
those that have been interpreted         as positive    by the medical
provider.
RECOMMENDATIONS TO THE
SECRETARY
----a---- OF LABOR
       In view of the increasing           backlog   of claims      and the
long delays      in claims   processing,       we recommend that the
Secretary    allocate     adequate    resources     and staff    to effec-
tively    and efficiently      carry    out Labor's    responsibilities
under the act.
       In addition,        to improve and strengthen    management
of the black lung benefits           program,  we recommend that
the Secretary       direct    the Assistant   Secretary  for Employment
Standards    to have OWCP:
      --Review   and revise  claims-processing      procedures
         to reduce the delays     between processing     steps.
      --Establish      criteria  on the timeliness          for   com-
         pleting    the informal   hearing   process.
      --Determine      the feasibility     of having all X-rays
         reread     so that claimants    whose X-rays   are
         interpreted      as negative  be given every oppor-
         tunity     to qualify   for benefits.



                                       52
         --Establish    an effective    program to respond promptly
            to claimant    inquiries   on the status  of their  claims
            and to provide     for more direct   communication  between
            OWCP and the district      offices  after the claim   is filed.
RECOMMENDATIONS TO -------
                   THE SECRETARY OF HEW
         To improve the       SSA district      offices'     performance    in the
black     lung program,       we recommend      that the     Secretary   take
action      to:
         --Require    the SSA district        offices      to follow    prescribed
            policies    and procedures      in processing         Labor black
            lung claims,    including     assisting        claimants    in filing
            claims   and notifying     OWCP immediately           after   a claim
            has been filed      so diagnostic        tests    can be scheduled.
         --Establish      a feedback     procedure   so that personnel  in
            the district      offices    will   be made aware of the defi-
            ciencies     and problems      in their  performance.
AGENCY COMMENTS

       Labor officials      agreed with our basic assessments          and
agreed that the time frames in claims            processing     are too
long.     (See app. I.)      Labor said that our draft        report    iden-
tified   many of the shortcomings         in the black lung program
and that most of these shortcomings,            which were also ad-
dressed     in the 31 recommendations        of a recent    OWCP task
force   and in the Office       of Organization     and Manpower Utili-
zation    report,    are being corrected.
         Labor said     ESA is    responding     to each of our       recommenda-
tions     as follows:
         "ESA is reorganizing       the Division          of Coal Mine
         Workers'    Compensation     to have more personnel
         on case handling.        In addition,        ESA has con-
         tracted   for the development         of a training        pack-
         age for new and senior         Claims Examiners,         as
         well as for the supervisory           staff.       Moreover,
         to improve     and to strengthen        the present      man-
         agement of the Black Lung Program,                ESA is
         carrying    out its plan to realize            its goal
         by the end of August to process              claims   within
         225 days, and eventually,          we hope to reduce




                                        53
       to 90 days the time needed for initial                    decision
       by DCMWC. Issuance           of revisions        to the Manual
       is also anticipated          by the end of the current
       Fiscal     Year.      The establishment        of standards
       for prompt completion           of the informal        hearing
       process     is under consideration.             In addition,
       OWCP is having all X-rays             reread.      Finally,      we
       anticipate        that OWCP will      be able to respond more
       promptly      to claimant     inquiries       about the status
       of their      claims    when the new systems and proce-
       dures are in place."
       Labor also said          that the OWCP task force has completely
reviewed    the resource          needs of the program and has determined
an adequate    staffing         level,
         SSA officials        agreed that the district             offices     have not
always followed         prescribed        procedures       in processing        black
lung claims        for Labor.         They said that SSA was aware of this
and has designated            a staff     member in each regional             office
to work with the district                offices      on black lung issues and
problems.        According       to SSA, other steps aimed at improving
district     office     processing         included     the frequent       issuance
by the central         office      of instructions         and directives         stressing
district     office     responsibilities            for obtaining       and expediting
black lung claims           applications.
          SSA said further      that at Labor's        request,      it recently
drew up a proposed         revision       of the district       offices'      respon-
sibilities       and procedures        for black lung claims.            Under this
proposal      the district      offices     will be responsible          only
for completing       the black lung claim application.                   All other
developmental       work will       be done by Labor.         The changeover
to these new procedures             was expected    to take place in June
1977.
       SSA added that it recognized            the importance         of a feedback
mechanism to alert       district      offices    to errors        made and to
serve as a tool for training             and self-evaluation.            SSA said
that it had designed        a form for this purpose               and outlined
the necessary    procedures        to Labor some time ago, but that
Labor deferred     action     on the matter       pending       the outcome
of the above-mentioned          proposal     to limit     district     office
involvement    in black lung cases.
RECOMMENDATIONS TO THE CONGRESS
     Since the act's  3-year filing                  requirement       has resulted
in Labor having to deny many claims                    for miners      and widows


                                            54
    who otherwise        would be eligible,          the Congress should con-
    sider     amending (1) section         422(f)(2)          of the act to delete
    the requirement        that living       miners      file    within     3 years of
    the date of their         last    coal mine employment              to be eligible
    under the 15-year         rebuttable      presumption          and (2) section
    422(f)(l)      to delete     the requirement            that widows of miners
.   determined       to have been totally          disabled        from CWP file
    within     3 years of the date of the miner's                    death.     Also,
    the Congress should decide             whether       to amend the act to
    permit     Labor to use SSA's Interim              Standards.          However,     the
    Interim     Standards,      as applied      by SSA, are more liberal
    with regard to younger miners               than the Congress            intended,
    Thus, if Labor is authorized              to use the Interim             Standards,
    it should be directed           to substantiate            by medical      evaluation
    the degree of the functional              disability         inhibiting       claimants,
    especially       younger miners,       from working.
                                    CHAPTER 10
                                  SCOPE OF REVIEW
                                  _1----
      Our review was made to determine              whether     the black
lung compensation       and benefits      program established          under
the Federal      Coal Mine Health      and Safety     Act, as amended,
is being carried       out in conformity        with the act's       intent
and whether      Labor performs     its operations       effectively
and efficiently.        We focused     our attention      on determining
whether:
      --Labor      is processing         and adjudicating     black lung
         claims      efficiently       to assure prompt payment
         of compensation           and all benefits       to eligible
         recipients,          as intended    by the 1972 amendments.
      --SSA is     carrying       out   its   initial    development     of
         claims    effectively.
      --Labor    has sufficient    resources            to effectively
         administer   the program.
       We reviewed     the act's    legislative        history;      the regula-
tions,   policies,     and procedures        established        by Labor and HEW;
and pertinent      documents    and case files.           We interviewed
Labor and SSA officials         at the locations          visited,      claimants
at several      of the SSA offices       visited,      and officials         of
the United Mine Workers          in Washington,        D.C.
        We did our work primarily      at Labor headquarters      in Wash-
ington,    D.C.  We took random statistical        samples of 197
black lung claims      on file   as of March 31, 1975.       The selected
cases were used to determine         how long it took to process
claims    and to analyze     the reasons   for excessive   processing
delays.
        As part of our review,         field   visits   were made
to SSA district       offices   in Wilkes-Barre        and Pottsville,
Pennsylvania;      Bluefield    and Charleston,        West Virginia;
Hazard and Pikeville,         Kentucky;      and Lakewood,   Boulder,
Trinidad,     and Colorado     Springs,      Colorado,   and SSA regional
offices    in Philadelphia,       Atlanta,     and Denver.
       We also    obtained   information           from Labor's    Office of
Administrative       Law Judges and the            Benefits   Review Board.




                                        56
APPENDIX     I                                                                      APPENDIX I



                              U.S. DEPARTMENT OF LABOR
                                 OFFICE OF THE ASSISTANT   SECRETARY
                                           WASHINGTON




    June 16, 1977

    Mr. Gregory J. Ahart
    Director
    Human Resources Division
    U.S. General Accounting             Office
    Washington,  D.C.  20548

    Dear Mr. Ahart:
    The Draft  Report on "Program to Pay Black Lung Benefits    to
    Coal Miners and Their Survivors--   Improvements are Needed,"
    has been reviewed,  and our comments    follow:
    The Department     agrees with GAO's basic assessments          and also
    its recommendations.       GAO's draft   report    has identified     many
    of the shortcomings      in the Black Lung Program.         Most of these
    shortcomings,    which were also addressed        in the 31 recommen-
    dations    of a recent OWCP Task Force and in the Office           of
    Organization    and Manpower Utilization       report!   are in the pro-
    cess of being corrected       (GAO has been furnished       copies of the
    Task Force report      and the OOMU report).
     ESA is responding          positively      to each of GAO's five
     recommendations          appearing     on pages 85-86 of its draft               report.
     The OWCP Task Force has completely                   reviewed    the resource
     needs of the program and has determined                     an adequate staffing
     level.      ESA's program response is as follows:                    ESA is
     reorganizing        the Division       of Coal Mine Workers'           Compensation
     to have more personnel             on case handling.          In addition,         ESA
     has contracted         for the development           of a training       package for
     new and senior Claims Examiners,                  as well as for the
     supervisory       staff.      Moreover,      to improve and to. strengthen
     the present      management of the Black Lung Program, ESA is
     carrying     out its plan to realize              its goal by the end of
     August to process claims within                  225 days, and, eventually,
     we hope, to reduce to 90 days the time needed for initial
     decision     by DCMWC. Issuance            of revisions       to the Manual is
     also anticipated          by the end of the current             Fiscal     Year.
     The establishment           of standards       for prompt completion           of the
      informal    hearing      process     is under consideration.               In
     addition,     OWCP is having all X-rays reread.                    Finally,      we
     anticipate      that OWCP will          be able to respond more promptly
     to claimant       inquiries       about the status         of their    claims when
      the new systems and procedures                are in place.




                                                  57
APPENDIX I                                                                               APPENDIX I



     Nonetheless,     the Department      does have comments on the text
     of the report      which are provided       below on a page by page
     basis by:     (1) identifying      factors     omitted   from the lan-
     guage of the draft      which we believe         have significant   pro-
     gram impact,     and (2) identifying        statements     which we
     believe   to be either     misleading      or in error.
     The Department     concurs that the time                 frames in claims
     processing   are entirely        too lengthy.              However, the report
     does not recognize       certain    inherent            procedures  in the
     adjudication    process.
     On page iv    of the Digest,      and on page 20 of the text,        the
     Department    believes   that the following      reasons should also
     be listed    as factors    contributing   to the current      adjudica-
     tion rate    and increased     claims processing     workloads.
                DOL has assumed the responsibility                for
                collecting    virtually      all of the claimant’s
                evidence.     Under other workers’           compensation
                programs,    such evidence        is collected        by em-
                ployers    or their     representatives,        e.g.,
                insurance    companies.        Thus, actual      process-
                ing time will       always be greater        than those
                in comparable      compensation       programs.
                Following      an initial   determination,   Part C
                claims     are served upon a responsible      coal
                operator      and often undergo a second in-
                vestigation,      including    a repeat medical
                evaluation.
                The Act does not provide                 a means for
                compromising      differences             in disputed        cases
                on an informal        basis,       such as through              the
                payment of partial             disability        benefits         or
                lump sum settlements.                As a result         of this
                “all    or nothing”       feature        of the Act, dis-
                puted claims must            be formally         litigated          to
                resolve    contested         issues.         In view of this,
                and the fact that all claims are filed                            for
                death or total        disability            benefits      (i.e.
                involve    substantial           sums of money), about
                97 percent     of Part C claims assigned                     by
                the coal mine operators                are contested            by
                the coal industry.




                                              58              .
APPENDIX    I                                                               APPENDIX   I




                Many Part B claimants        were able to establish
                the existence     of a pneumoconiosis         condition
                through the use of the 15-year presumption
                under the Act.      Practically       all Part C
                claimants,    however, are unable to utilize
                this presumption      under the law and must es-
                tablish    the actual    existence     of the disease
                by X-ray or other means.           This often requires
                the claimant    to undergo a number of different
                medical tests and evaluations            which add to
                the time required      to complete action         on the
                case.
    The Department        would also like to note that the overwhelming
    majority     of claims      (over 90 percent)     now in the Department
    are not, in all probability,             eligible  for award under the
    current    law and regulations.           The Department    has, as a
    matter of policy,         however,    endeavored to provide        the bene-
    fit   of the doubt to claimants           based on interpretations       of
    Congressional       intent.       For this reason, we have kept cases
    open for additional          periods    of time to enable claimants        to
    provide    additional       evidence.
    On page viii       of the Digest,   we recommend that the second
    sentence of the last paragraph         or the statement         'Labor is
    receiving      claims of many younger miners"         be deleted.        Sta-
    tistical     studies    have shown that there are no significant
    differences       between the claimant    age profile       of the two
    groups.      While the Part C claimants      are younger,         the dif-
    ferences     are so slight    as not to affect      such factors        as
    approval     rates and claims processing.         See infra       for the
    average age of the DOL claimants          population,       and the per-
    centage of miner claimants         who ceased employment prior
    to 1973.       The average age of beneficiaries,          under the DOL
    program,     is about 68. The major difference            between
    claimants      under the two programs is that Part B claimants,
    particularly       those who filed   in the earliest        years of the
    program,     have tended to be more severely          disabled      than
    Part C claimants.
    The draft      GAO report   does not address the problems faced by
    DOL in attempting        to transfer     the cost of the black lung ben-
    efit   program to the coal industry.            It is recommended that a
    third    topic be included      following    that portion   of the text
    covering      PAYMENT OF COMPENSATION AND OTHER BENEFITS, on pages
    18-19.      The new                                               PART C
    PROGRAM REMAINS A FEDERaL RESPONSIBILITY.




                                           59
APPENDIX    I                                                                 APPENDIX   I



     Under Part C, the Federal Government pays all                    claims     for
     which a responsible           operator     cannot be found.        However, it
     has proven difficult            to assess individual        operators.        The
     average age of the DOL claimant                population    is between 60
     and 65.        Fifty-seven     percent     of the miner claimants          have
     been out of the mines for 20 years or more.                     Eighty per-
     cent ceased employment prior               to 1969 and almost        90 percent
     ceased employment before 1973.                 Many of the employment
     records       are incomplete,        and many of the coal companies have
     gone out of business.               As a result,    the DOL is spending
     considerable          time, effort,     and money for evaluation           and
     litigation         and is only identifying        a responsible        operator
     in 25 to 30 percent           of the cases.        Fewer than 150 of the
     3,800 claims approved by DOL are being paid by coal opera-
     tors.        Thus, the intended        purpose of Congress in splitting
     program jurisdiction           between SSA and DOL, to ultimately
     passing the cost of black lung benefits                   to the coal indus-
     try,     has not materialized.            The DOL has addressed this
     problem and has recommended that a government-administered
     trust      fund be established,         to pass on the costs of the Part
     C program to the coal industry.
     The following     pages in the body of the text              require
     revision    or corrections:
           Pqggq 36-37:         The discussion        on these pages
           reg"I->concurrent               development     does not include
           the t-@@ionale for current             development     practices.
           About 85 percent          of the cases require         no additional
           development       beyond that required          for an initial
           medical determination.               If we adopted a procedure
           whereby medical evidence and non-medical                   evidence
           were developed         concurrently,       such action would
           increase     the   Claims      Examiner workload       with minimal
           benefit    gained in only 15 percent              of the cases.
           Given our limited           resources,     we have, therefore,
           decided to obtain non-medical               evidence on an
           "as needed" basis.
     In view of these facts,    it is requested    that the second
     paragraph  on page 37, recommending concurrent        development
     of medical and non-medical    evidence,    be deleted    in its
     entirety.
     The general  treatment     of issues in Chapter 7 does not fully
     reflect  an understanding      of the conditions    which existed
     at the time certain     resource    decisions   were made. Without




                                           60
APPENDIX I                                                                   APPENDIX I


     excuse or apology,         the Department's          resource     decisions
     affecting     the Black Lung Program were made on the best
     available     information       at the time budget decisions                had
     to be finalized.          Given the number of claims filed                  with
     the Social Security          Administration        under Part B and the
     estimated     remaining      pool of eligibles,           the Black Lung
     operating     personnel      have projected        precipitous       reductions
     in workloads       for the outyears.            Thus, at that time, there
     was little      basis for the Department             to justify      adding long
     term resources        to the program.           We have continued         to
     evaluate    the situation,         particularly        the basis for es-
     timating   the inflow        of claims against           existing    workloads.
     If our evaluations          indicate      that the workload        trends will
     continue,     the Department         will    take appropriate        action.
             Page 63:       The report     does not mention that,
             beginning      with Fiscal      Year 1975 and continuing
             through FY 1977, the Employment Standards
             Administration        has funded the hiring       of sig-
             nificant      numbers of employees on temporary
             assignments       to meet the unexpectedly        heavy
             inflow    of claims.       Using such funds as the
             Agency had available,           up to 80 such positions
             were maintained        through Fiscal     Year 1976, and
             50 such positions         have been carried      for FY 1977.
             Whether or not this was sufficient             to meet pro-
             gram need is not at issue.             However, we do
             suggest     that,    in the interest     of accuracy,     the
             report    acknowledge       the Department's     attempts
             to channel resources           into the program.
             Page 66: We do not suggest alternative
             language for the second paragraph,    but we
             do offer  this clarification  of the actual
             budget history   for FY 1977.
                        As part of the Fiscal         Year 1977
             budget process during the Fall of 1975,the
             Secretary  of Labor directed      that ESA
             reprogram  10 positions     from the Black Lung
             program to support     the administration      of the
             Longshore and Harbor Workers'         Compensation
             Act, which was experiencing       critical    workload
             problems  as a result     of the 1972 amendments




                                            61
APPENDIX         I                                                              APPENDIX        I




            to that Act.       In point of fact,     the Administration
            later    amended the FY 1977 budget request           to the
            Longshore program as a result         of amendments to the
            FY 1976 Appropriations        Act, which had been vetoed
            later    in Calendar 1975 and required         re-enactment
            early in Calendar 1976.          In so doing, the initial
            budgetary    decision    to transfer    resources     from the
            Black Lung program to the Longshore operations               was
            permitted    to stand.
                          In acting on the FY 1977 Amended Budget,
            the Congress did add 30 positions              to the Department's
            request    for administration       of the Black Lung Program.
            This decision      was made some several          months after     the
            Budget was submitted        to Congress,       and represented       ad-
            ditions    to the Budget as presented            which already     in-
            cluded the transfer        of positions      to the Longshore
            program.      Thus, the statement       in the report      that "Of
            the 30 new positions        authorized     in (Calendar      Year)
            1976 for the Black Lung Program, DOL proposed to
            allocate     10 positions     to the Longshoremen's        Program"
            is not correct.         The decisions     were made at different
            times,   almost one year apart.
            Page 67 - line 12:       The 218 permanent positions
            mentioned    in the DOL Manpower Utilization       Study
            refers    to a staff  sufficient    to process ongoing
            workloads,     and to preclude   further   buildup of back-
            log.
                         Additionally,     a sentence in that paragraph
            should indicate      that efforts    are underway to develop
            detailed   plans for organizational        changes, procedural
            changes, and adequate staffing          in concert  with rec-
            ommendations     by the OWCP Task Force and the Office
            of Organization      and Manpower Utilization.
    Note:              [See GAO note    2, p. 65.1
                         The response of the ALJ is enclosed               as Exhibit      B.
    Sincerely,




   Enclosures




                                              62
APPENDIX I                                      APPENDIX I



                     EXHIBIT    A




             [See GAO note     2,   p.   65.1




                          63             .
APPENDIX        I                                                                            APPENDIX   I

                                         EXHIBIT             B



                                   OFPKBOP ADMINISTRATIVE        LAWJUDCLS
                                      Suite 700-I Ill 2Uth Street,   N.W.
                                           Washington, D.C. 20036




 April     7,       1977

 MEMORANDUM           FOR :   MICHAEL        B.     ZUZIK,       ACTING      DIRECTOR
                              Division            of Accountability             & Review
 FROM:                        H.     STEPHAN        GORDON
                              Chief      Judge

 SUBJECT:                     Draft    GAO Report/"Program      to Pay Black
                              Lung Benefits      to Coal Miners and Their
                              Survivors--Improvements       are Needed"



 We do not read SO much of the GAO draft      report                                  as concerns
 the OALJ as requiring      48~ defense of our part                                 in the black        .
 lung adjudication     system.
  Thus, the report             states       that      average time from referral               to
  decision        in FY75 was 54 days, and in FY76, 89 days.                              As is
  elsewhere         explained,         this      increase      was largely       due to a BRB
  decision        holding      that,Hearing            Officers      were without       authority
  to adjudicate           claims.          Work was in consequence               suspended from
  April      8, 1976 to August               23, 1976.         For the same reason,            of
  course,       the backlog         of cases unavoidably                grew.     It should
  also be noted that               a considerable            portion      of our current
  backlog       consists       of some 449 widows claims which involve                           the
  question        whether      they are barred              by the statute        of limita-
  tions.        We are presently               awaiting      motions      for summary judg-
  ment from the Office                 of the Solicitor.              Litigation      of these
   cases'on       the merits         at this        time would be unjustified               in
  view of regulations                providing          for dismissal        of untimely
   claims      on motion        (prior       to the regulation            the BRB had ruled
   that hearings          were required              in all such cases).            Thus, hear-
   ings might very well put all parties                           to needless       expense.
  Test cases involving                 dismissal          of claims on motion are
   presently        pending      before        the BRB, which hopefully              will
   resolve      the question            in the near future.
  It should be pointed         out that the 54 and 89-day averages may
  well represent     optimum figures,         as there exists   good reason
  to believe    that  figure      will  increase     somewhat.  The very
  nature   of the black      lung litigation       process makes this a
  likely   prospect.      Thus, many cases are referred         which are


                                                        64
APPENDIX I                                                                   APPENDIX I


  not in a proper         posture   for litigation.          Investigations        have
  not been completed          and issues have not been defined.                Thus,
  the hearing        becomes a vehicle       for investigation.            Not infre-
  quently      hearings    are interrupted       to permit      time for further
  investigation.          This is particularly         troublesome       with respect
  to determinations          of responsible       operators.
 . In sum, we are of the belief            that this Office     has adjudicated
   cases in a reasonable        time frame and remains        capable of con-
   tinuing      to-do so.. We do see difficulties          ahead arising     both
   from the nature       of the investigatory       process   below and the
   uncertainties      attending    resolution     of the mentioned     widows'
   claims     by BRB.



GAO notes:        1.    Page references           in   this   appendix      may not
                        correspond     to     page numbers         in the    final
                        report.
                  2.    The     deleted  comments relate     to matters
                        which      have been revised    in the final               report.




                                            65
APPENDIX II                                                   APPENDIX II

              GAO REPORTS ON REVIEWS OF ADMINISTRATION
              -_--_-------------l---~~-~~--~-----
                 OF    THE BLACK LUNG BENEFITS
                 ---------------       ---u--s-- PROGRAM
                UNDER THE FEDERAL COAL MINE HEALTH
                -_---------------------~-~--~--~--
                AND ---------I_-----------
                    SAFETY ACT OF 1969,        AS AMENDED
      1.     Report to the Chairman,      Subcommittee     on Labor,
Senate Committee      on Labor and Public      Welfare,    on problems
being encountered       by the Bureau of Mines, Department          of
the Interior,      in its implementation      of the provisions      of
the act relating      to inspecting     coal mines and correcting
unsafe and unhealthy       conditions    (B-170686,     May 13, 1971).
        2. Report to the Special     Subcommittee    on Investi-
gations,   House Committee   on Interstate     and Foreign     Com-
merce, on our examination      of certain  questions     regarding
the processing    of claims  for black lung benefits        by
SSA, HEW (B-170686,     Aug. 3, 1971).
         3. Report to the Congress on achievements,   admin-
istrative    problems,  and costs of paying black lung benefits
to coal miners and their     widows by SSA, HEW (B-164031(4),
Sept. 5, 1972).
        4. Report to Senator  Marlow Cook on alternatives
to the payment of black lung benefits     by the coal mining
industry   (B-164031(4),  Mar. 13, 1973).
       5.   Report to Congressman John N. Erlenborn     on
information     on attorney   fees paid for State black lung
workmen's     compensation  claims  in Kentucky;  SSA, HEW
(B-164031(4),     Jan. 8, 1974).
       6.   Report to the Special    Studies    Subcommittee,
House Committee     on Government   Operations,    on the need
for further    improvements   in processing     of widows'    claims
for black lung benefits:      SSA, HEW (MWD-75-44, Dec. 31,
1974).
      7.    Report to the Congress on improvements         still
needed in coal mine dust-sampling        program and penalty
assessments    and collections;   Departments    of Interior
and HEW (RED-76-56,      Dec. 31, 1975).
        8. Report to the Subcommittee     on Intergovernmental
Relations      and Human Resources,  House Committee       on Govern-
ment Operations,      on examination  of allegations       concerning
administration      of the black lung benefits      program (MWD-76-72,
Jan. 14, 1976).

                                   66
APPENDIX IV                                                           APPENDIX IV

                  PRINCIPAL
                  --              LABOR    AND HEW OFFICIALS
                                     -------------
                    RESPONSIBLE
                    --v-----------m- FOR ADMINISTERING
                ACTIVITIES
                --------------------- DISCUSSED IN THIS REPORT
                                                             Tenure of office
                                                           -I_---------
                                                           From
                                                           ----               To
                                                                              --
                           DEPARTMENT OF LABOR
                           --a--------------
 SECRETARY OF LABOR:
     Ray Marshall                                  Jan.      1977         Present
     William  J. Usery,       Jr.                  Feb.      1976         Jan. 1977
     John T. Dunlop                                Mar.      1975         Jan. 1976
     Peter J. Brennan                              Feb.      1973         Mar. 1975
     James D. Hodgson         .                    July      1970         Feb. 1973
ASSISTANT SECRETARY FOR
  EMPLOYMENT STANDARDS:
     Donald E. Elisburg                            Mar.      1977         Present
     John Mumford (acting)                         Feb.      1977         Mar. 1977
     John C. Read                                  May       1976         Jan. 1977
     Bernard E. DeLury                             May       1973         Apr. 1976
     Vacant                                        Jan.      1973         May 1973
     Richard  J. Gruenwald                         Jan.      1972         Jan. 1973
     Horace E. Menasco (acting)                    Oct.      1971         Jan. 1972
     Arthur  A. Fletcher                           May       1969         Oct. 1971
 DIRECTOR, OFFICE OF WORKERS'
   COMPENSATION PROGRAMS:
     Everett    P. Jennings     (acting)            Jan.     1977         Present
     Herbert    A. Doyle,   Jr.                     Feb.     1974         Jan. 1977
     Herbert    A. Doyle,   Jr.
       (acting)                                     Sept.     1971        Feb.   1974
 ASSOCIATE DIRECTOR, DIVISION
   OF COAL MINE WORKERS'
   COMPENSATION:
     June E. Patron                                 Oct.     1976         Present
     Robert D. Wedemeyer (acting)                   Apr.     1976         Oct. 1976
     Nancy Snyder                                   July     1973         Apr. 1976
 OFFICE OF ADMINISTRATIVE
   LAW JUDGES:
      H. Stephan Gordon, Chief
        Judge                                       Sept.      1971       Present




                                        69
APPENDIX IV                                                APPENDIX IV


                                                 Tenure
                                                 -------   of office
                                              From
                                              --                       To
                                                                       -
                  rp
                    DEPARTMENT
                            -- OF LABOR --(cont.)
BENEFITS REVIEW BOARD:
    Ruth Washington, Chairperson           Apr.     1974     Present
    Ralph Hartman                          Apr.     1974     Present
    Julius Miller                          Apr.     1974     Present
          DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
          ----I
SECRETARY OF HEALTH, EDUCATION,
  AND WELFARE:
    Joseph A. Califano                      Jan.    1977     Present
    David Mathews                         e Aug.    1975     Jan.       1977
    Casper W. Weinberger                    Feb.    1973     Aug.       1975
    Frank C. Carlucci    (acting)           Jan.    1973     Feb.       1973
    Elliot L. Richardson                    June    1970     Jan.       1973
COMMISSIONER OF SOCIAL SECURITY:
   James B. Cardwell                       Sept.    1973     Present
   Arthur  E. Hess (acting)                Mar.     1973     Sept. 1973
   Robert M. Ball                          Apr.     1962     Mar.    1973
DIRECTOR, BUREAU OF DISABILITY
   INSURANCE:
     William  J. Rivers                    Jan.     1976     Present
     Samuel E. Crouch (acting)             July     1974     Jan.    1976
     Bernard Popick                        Sept.    1965     June    1974

      ,




                                                                                   ,
                                                                               1




                                 70
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