THE BLACK LUNG BENEFITS IMPROVEMENT ACT OF 2022: BENEFITS TO MINERS & THE ATTORNEYS WHO SERVE THEM

I. Introduction

Coal Workers’ Pneumoconiosis, commonly known as “black lung,” is an occupational lung disease caused by prolonged inhalation of coal dust and other particles.^[1] The severity of black lung symptoms varies, including coughing, phlegm, progressive respiratory failure, and heart complications.^[2] In the worst cases, miners need lung transplants in order to survive, though many do not have that option due to the excessive cost of the operation.^[3] While numbers are difficult to identify, at least 1,000 coal miners die from black lung each year.^[4]

Congress enacted the Black Lung Benefits Act (“BLBA”) originally in 1972, but various amendments to the legislation have been passed since then. The purpose of the BLBA was to “provide[ ] monthly payments and medical benefits to coal miners totally disabled from pneumoconiosis … arising from their employment in or around the nation’s coal mines.”^[5] It is true that the BLBA has provided a great benefit to miners suffering from black lung. However, this benefit only comes to those that are willing to endure up to five medical examinations and years of highly contested litigation.^[6] In fact, there have been black lung cases that have taken over ten years to resolve.^[7]

Flaws in the BLBA have made it financially burdensome for attorneys to take on black lung cases, made black lung litigation unduly lengthy, and failed to address a lack of candor to the tribunal from attorneys and medical experts. A pending bill before the U.S. Senate, the “Black Lung Benefits Improvement Act of 2022” (“Improvement Act”), seeks to address these and other concerns for miners involved in black lung litigation. The purpose of this article is to illustrate how the Improvement Act will answer the above-mentioned issues with the BLBA and respond to potential counterarguments against the Improvement Act.

II. History of the Improvement Act

The Improvement Act was first introduced by Virginia Congressman Robert “Bobby” Scott in the House of Representatives on December 1, 2021, where it was referred to the Committee on Education and Labor.^[8] After an initial committee “mark-up session” was held in March, it was sent to the Committee on Ways and Means. ^Unfortunately, this committee has taken no action on the bill, effectively killing it.^[9]

Pennsylvania Senator Robert Casey reintroduced the bill in the U.S. Senate on July 13, 2022.^[10] The Improvement Act’s co-sponsors include Senators Joe Machin (D-WV), Mark Warner (D-VA), Tim Kaine (D-VA), and Sherrod Brown (D-OH).^[11] The Improvement Act has been referred to the Committee on Health, Education, Labor, and Pensions; however, no further action has been taken.^[12]

While little action has been taken to pass the Improvement Act, proponents of the bill have heralded the benefits it would provide miners. For example, Senator Warner says, “[w]e owe it to those battling black lung disease as a result of their years of work to ensure that they receive the medical care they deserve” … and explains that “[t]his legislation will allow more miners and their families to access care and benefits as they face this diagnosis.”^[13] Similarly, Senator Brown states that “[miners] have suffered enough. They shouldn’t have to navigate an interminable claims process riddled with red tape, all to get the benefits they have earned.”^[14]

After reaching out to other legislators (Senators Shelly Moore Capito (R-WV) and Congresswoman Carol Miller (R-WV)) for a comment, a spokesman from Congresswoman Miller’s office stated that the passage of the Improvement Act requires “a difficult balancing act … to dole out benefits that are sorely needed by the miners along with making sure that the companies that pay into those taxes do not go bankrupt.”^[15] It can be inferred from this statement that the opponents of the Improvement Act are most worried about the burden the bill might impose on the bottom line of coal companies (“Responsible Operators” or “ROs”) that provide jobs for their constituents. While such an argument has merit, it does very little to relieve the thousands of retired coal miners suffering from black lung that have sacrificed their health and safety to power our nation.

As it stands today (September 19, 2022), the Improvement Act has little chance of being passed. No action has been taken on the bill since July, and the Congressional term ends on January 3, 2023.^[16] In the shadow of an election where most polls suggest America will have a split Congress between Republicans and Democrats, it is easy to imagine that a bill like the Improvement Act will fall through the cracks.^[17] While this provides little comfort to the miners fighting for black lung benefits today, it should be worn as a badge of shame for congressional leaders who stood idly by and allowed the Improvement Act to fizzle out. This is because, as its name suggests, the Improvement Act would greatly improve and quicken the process by which miners can obtain benefits.

III. Financial Burden on Claimants and their Attorneys

A. Deficiencies in the BLBA

Under the BLBA, attorneys for miners seeking black lung benefits (“Claimants”) are not allowed to ask for or accept any payment for attorney’s fees from claimants.^[18] This is one of the very few areas of law where attorneys are not able to collect from their clients. Instead, claimants’ attorneys are required to fully litigate a black lung claim, including all appeals, before they are entitled to be paid at all (and remember, these claims last for years).^[19]

At that point, claimants’ attorneys must submit a fee petition whereby they describe all legal work taken on behalf of the claimant, who performed the work, and what monetary value should be assessed for that work.^[20] These fee petitions may also be appealed based on the payee of the fee contesting the amount of hours worked on particular tasks or the amount assessed for individuals working on the case.^[21] So essentially, black lung attorneys are forced to litigate two complex legal cases before the Office of Workers’ Compensation Programs (“OWCP”) and various federal tribunals before they are entitled to be paid for any work they have done.

In addition, attorneys practicing black lung law are often faced with uphill legal battles because claimants cannot afford the cost of medical examinations and x-rays necessary to bolster their claim for benefits.^[22] Currently, the BLBA pays for one neutral examination of the claimant.^[23] However, a claimant and the responsible operator are entitled to submit two other medical examinations into evidence.^[24]

While ROs can easily afford this necessity, it takes more work for retired coal miners seeking benefits. In some cases, attorneys for a claimant front the cost for medical examinations, only to never be repaid. The financial burden of medical examinations only lower claimants’ chances of being awarded benefits and their attorneys’ chances of being paid. Because the BLBA does not incentivize attorneys’ engagement in black lung cases, it should come as no surprise that there are very few black lung attorneys in the United States that represent claimants.^[25]

The harm that results from the lack of attorneys practicing in black lung cases is: (1) many miners are unable to be represented by an attorney; and (2) there is a diminished likelihood of success for miners that are unable to obtain representation by an attorney. According to the OWCP’s Division of Coal Mine Workers’ Compensation, less than half of all black lung claimants are represented by an attorney (43%).^[26] Further, 34% of claimants have no representation whatsoever.^[27] Considering the legal complexity of black lung claims and the increased capacity of ROs to hire highly rated attorneys, it appears that the deck is currently stacked against claimants seeking benefits. As a result, only around 32% of claims are awarded at the first level of litigation, not even considering that many claims go through three or more appeals.^[28]

B. Solutions from the Improvement Act

The Improvement Act seeks to solve this problem by incentivizing more attorneys to practice in black lung law. This goal is accomplished in three ways by: (1) paying attorneys earlier, (2) reducing the burden of medical examination costs for claimants, and (3) placing those costs on the ROs.

The Improvement Act states, “[i]f a claimant … obtains a proposed decision and order … or an award for a qualifying claim before an administrative law judge, district director may approve attorneys’ fees for work done before such director in an amount not to exceed $1,500, and an administrative law judge may approve attorneys’ fees for work done before such judge in an amount not to exceed $3,000.”^[29] Put plainly, a claimant’s attorney would be entitled to fees if the claimant is successful at the first level of litigation and even more at the second level.^[30] Therefore, attorneys would not have to wait up to ten years in order to be paid for their services, and their likelihood of being paid at all would be increased. This would certainly increase the number of lawyers taking on black lung cases and would likely result in more claimants obtaining attorney representation.

The Improvement Act also provides that “[i]f a claimant … obtains a proposed decision and order … [a] judge may … award to the claimant’s attorney reasonable and unreimbursed medical expenses incurred in establishing the claimant’s case in an amount not to exceed $1,500.”^[31] This means that if an attorney felt that a claimant’s case had merit, he could be reimbursed for fronted medical costs if he was successful in obtaining a proposed decision and order for the claimant.^[32] This reimbursement would originally come out of the BLBA trust fund, paid for by taxpayers; however, another subsection of the Improvement Act explains that “the liable operator shall reimburse the fund for any fees or expenses paid in this section.”^[33] So the cost would conclusively be borne by the responsible operator of the claimant.^[34]

Each of these initiatives of the Improvement Act would make great strides in increasing the amount of black lung attorneys practicing and the number of claimants that are able to obtain attorney representation. This would even the playing field for retired miners that do not have the financial means of their RO.

C. Counter Arguments for this Provision

Opponents of the Improvement Act, over their concern for fiscal responsibility, would likely argue that paying attorneys sooner and reimbursing them for medical expenses would create an undue burden on the taxpayer and ROs. However, paying attorneys earlier will not greatly increase the amount of money paid out by the BLBA’s trust fund; it will change when it is distributed at a more favorable time for claimants’ attorneys. Further, the reimbursement costs to attorneys for medical expenses allow claimants to fully develop their case for benefits. Considering that the purpose of the BLBA is to provide benefits for miners disabled by black lung, allowing miners to make a full case for benefits would work toward this purpose established by Congress, not against it.

In some circumstances, even claimant attorneys may oppose this provision of the Improvement Act because of the cap of only $1,500 to $3,000 for each black lung case. The cap for social security cases is $6,000, with some attorneys believing that black lung litigation is more difficult because of its adversarial nature. Truly, the cap is too low, and the Improvement Act should be amended to raise this cap. However, the Improvement Act is merely a starting point to help expedite attorney payment and claims processing. Future amendments should be made to further improve the BLBA and provide fair compensation for miners and their attorneys.

IV. Lengthy and Uncertain Litigation of Black Lung Claims

A. Deficiencies in the BLBA

Under the BLBA, there are six appellate levels for federal black lung claims.^[35] This means that even if an award is granted to a claimant at the first level, the decision may be overturned on five other occasions if a different determination is made by one of the other appellate venues.

Procedurally, black lung claims begin at the Office of Workers’ Compensation Programs, where a district director—usually not an attorney—makes the initial determination of whether a miner is entitled to benefits.^[36] On appeal, the case is heard by the Office of Administrative Law Judges (“ALJ”), which are known to have overloaded dockets, resulting in significant lag time before appeals can be heard.^[37] Afterward, ALJ decisions may be appealed to the Benefits Review Board (“BRB”).^[38] The BRB’s decisions are appealed to the circuit court of appeals located in the place where the coal miner last worked for a period of one year.^[39] Finally, these decisions may be appealed to the United States Supreme Court.^[40]

This overly complex web of litigation results in two major problems for claimants and their attorneys: (1) the process often takes multiple years (much longer than other court proceedings), and (2) there is uncertainty throughout this lengthy period regarding whether an award of benefits will be upheld. These issues are becoming more frustrated because of the rising number of black lung claims in recent years.^[41] According to the CDC, as many as one out of every five coal miners in the central Appalachian region have black lung.^[42] Further, black lung’s prevalence in coal miners has increased by 10% since 2012.^[43]

As black lung cases increase due to this rise, there will be a greater strain on the courts that handle them.^[44] Currently, at just the ALJ appellate level, claimants may have to wait years before obtaining a hearing.^[45] If a change is not made to the BLBA, claimants will likely have to wait even longer before their appeals are heard, which may lead to stale evidence on appeal. More worrying, if appeals are not heard efficiently, it could jeopardize the public’s trust in the court system in black lung cases.^[46]

Further, uncertainty in the result of a decision is another significant consideration for claimants because if an appeals court overturns the decision, they may be required to pay back the amount of money paid to them by the trust fund. While claimants may submit a petition to waive this “overpayment,” it provides another stressor to people who have likely spent years in a frustrating litigation battle. As written, the length and uncertainty of the BLBA hinders its purpose to provide benefits to miners that are disabled due to black lung by dissuading them from ever filing for benefits in the first place.

B. Solutions from the Improvement Act

The Improvement Act seeks to address this problem by improving the staffing, infrastructure, and planning of appellate courts hearing black lung cases. This goal is accomplished in three ways by: (1) creating a target timeline for black lung litigation; (2) adding new ALJs and attorney advisors to aid them; and (3) providing equipment and training on video-conferencing.^[47]

The Improvement Act states that “the Secretary of Labor shall submit … a comprehensive strategy to reduce the backlog of cases pending on such date of enactment before the Office of Administrative Law Judges of the Department of Labor.”^[48] This strategy consists of developing information regarding “the current and targeted pendency for each category of cases before the [ALJs].”^[49] Identifying the existing deficiencies in the duration of black lung cases will frame future efforts to help process claims faster. Further, having a target timeline for black lung cases will set the bar for ALJs regarding how long an appeal should take and give some level of certainty to both claimants and ROs on at least one appellate level.

The Secretary of Labor’s strategy must also identify “the number of administrative law judges, attorney advisors supporting such judges, support staff, and other resources necessary to achieve and maintain the targeted pendency for [black lung cases].”^[50] As before, recognizing the deficits that ALJ courts have regarding personnel will contribute to more judges and attorney advisors being hired and black lung cases being heard more efficiently. It is germane to note that black lung claims are not the only types of cases heard by ALJ judges as well.^[51] ALJ judges hear Social Security appeals and a whole host of other administrative law issues.^[52] Therefore, it is not only in the interest of claimants to increase the number of judges, but it is also in the interest of claimants for a variety of other government entitlements.

Next, the Secretary of Labor’s strategy must identify “the necessary resources to improve efficiency and effectiveness, such as equipment for video conferences, training, use of reemployed annuitants, and administrative reforms.”^[53] While this may seem simple, training oftentimes older judges of the “new world” of Zoom and Microsoft Teams calls could reduce the lengthy process of black lung claims significantly.^[54] Prior to the COVID-19 pandemic, ALJs were to travel to an area proximately near the last place where the claimant worked for a period of one year.^[55] This travel time significantly reduced the amount of black lung cases that could be heard.^[56] Therefore, it is reasonable to assume that getting rid of this travel time by holding videoconferences instead would increase the amount of cases that could be heard. Voice conferences have already been put in place by most ALJs since COVID-19 for black lung cases; however, videoconferencing would allow claimants to have more effective hearings because many claimant coal miners cannot hear well due to their occupation.^[57]

Lastly, the Secretary of Labor’s strategy must include a description of “the necessary resources needed to reduce the average pendency of cases to less than 12 months from the date of receipt of the case to the date of disposition of such case.”^[58] This ultimatum would give claimants and ROs the certainty to know that they would not be involved in litigation that could last over a year. Further, it would help claimants’ attorneys because they would only have to put up to a year’s worth of work into a case before knowing whether or not they would be paid for it or not.

This portion of the Improvement Act is likely to: (1) increase the timeliness of black lung litigation and other claims that are heard by ALJs; (2) increase the certainty of claimants and ROs of when they can rest assured that the award or denial of benefits will be upheld; and (3) increase public faith in the judicial process. Studies have shown that a stalled litigation process leads to a poor public opinion of the court system.^[59] Therefore, by hearing cases faster and more effectively, ALJs and other appellate courts that hear black lung cases can improve claimants’ opinions on the litigation process.

C. Counter Arguments for this Provision

Opponents to the Improvement Act would suggest that hiring judges and staff would cost more money for the taxpayer. While this is true, this debt would be repaid by quicker and more effective litigation of not only black lung cases, but other appeals brought before an ALJ. Moreover, black lung claimants are not the only ones that would benefit from having more ALJs. Efficiency and effectiveness in the court system should be a worthwhile investment for the taxpayer.

Claimants themselves may also oppose this provision of the Improvement Act because many are older and live in rural communities with little or no access to internet services. As such, having black lung proceedings by Zoom or Teams may burden them because they would not be able to participate as easily. It could also be argued that this hurdle for claimants violates the equal protection of the law under the Constitution. However, in this case, the benefit to miners under this provision outweighs the cost. As this provision would likely increase expediency in black lung litigation, it would give quicker certainty to miners, who often have been waiting for years to hear any decision at all on their claims. All in all, this provision is good for miners and the courts.

V. Lack of Candor to Black Lung Tribunals

A. Deficiencies in the BLBA

Black lung claims under the BLBA have long been considered a “battle of the experts” by courts and the attorneys representing both sides of the claims.^[60] This is because both parties are entitled to, and most often do, submit favorable medical opinions and data that doctors submit that the parties pay for. However, historically, parties to a black lung claim – most often RO attorneys and doctors – have misrepresented and withheld medical evidence from black lung tribunals. As a result, judges, who often do not have professional medical training, are faced with the issue of assigning weight to each medical opinion and coming to a decision based on all of them.^[61] Essentially, black lung claims become a “he said, she said” scenario in that neither side gives a truly unbiased report of a miner’s health. There are famous examples of this for both attorneys and the doctors that they hire.^[62]

From the attorney standpoint, entire law firms have developed a pattern of withholding and misrepresenting information to black lung tribunals, even when these firms knew of evidence that indicated the existence of black lung in a miner.^[63] One such firm is Jackson Kelly, PLLC., a firm with over 150 attorneys throughout the United States, but mostly in Appalachia. In addition, the Center for Public Integrity published an article regarding attorneys’ misconduct revolving around black lung cases.^[64] Key findings from this study showed three horrific examples of misconduct.

First, out of 15 black lung cases reviewed, 11 of them Jackson Kelly shielded reports generated by doctors of its choosing when even they found the miner had black lung.^[65] Second, Jackson Kelly “allowed judges and consulting doctors to form opinions based on only the reports it chose to provide, even as it withheld other documents that cast doubt on what was in the record.”^[66] Lastly, when finally commanded by a judge to provide documents withheld from the tribunal, Jackson Kelly conceded numerous cases.^[67] Despite all of these findings, no sanctions have been placed on Jackson Kelly, even though one of their attorneys – Douglas Smoot – had his bar license suspended for one year.^[68]

RO doctors have likewise been misleading the tribunal regarding black lung claims for decades.^[69] One notable example is the failure of the Black Lung Center at John Hopkins Hospital.^[70] Dr. Paul Wheeler, who worked for the center, commonly reviewed x-rays and gave opinions for ROs. However, out of more than 1,500 cases Dr. Wheeler reported on, he never once found that any claimant had complicated black lung.^[71] After an investigation of Dr. Wheeler’s findings, it was found that he had misled the tribunal by submitting false evidence.^[72] John Hopkins’ Black Lung Center was discontinued as a result of this investigation.^[73] Afterward, the Department of Labor, which handles initial black lung claims, had to send over 1,100 miners a letter stating that they may have been wrongfully denied as a result of Dr. Wheeler’s opinions.^[74]

Because of Dr. Wheeler and other doctors’ misconduct, the DOL added a new regulation requiring disclosure of medical examinations of a miner.^[75] However, there are currently no specific provisions in the BLBA to prevent attorneys and doctors from misleading and withholding evidence from the tribunal aside from sanctions to their party in a trial.^[76]

Under the relevant regulation, 20 CFR § 725.413, failure to disclose medical information in a black lung claim result in drawing an adverse inference against the non-disclosing party, dismissing the claim, or rendering a default decision against the non-disclosing party.^[77] However, this provision fails to include so much as a fine or imprisonment for an attorney or doctor that withholds evidence.^[78] In many cases, if misconduct is found on the part of the RO, the RO concedes liability and is never punished for the misconduct.^[79] As long as unethical behavior goes unpunished, it will continue, hindering the purpose of the BLBA.

B. Solutions from the Improvement Act

The Improvement Act seeks to address this problem by punishing people engaged in misconduct and remediating a case where misconduct occurred.^[80] This is accomplished in four ways by: (1) punishing a wrong-doing attorney by means of a fine or imprisonment; (2) disbarring the attorney; (3) placing discovery sanctions against the party engaging in misconduct; and (4) re-adjudicating claims that were denied based on misconduct.^[81]

According to the Improvement Act:

No person, including any claimant, physician, operator, duly authorized agent of such operator, or employee of an insurance carrier, shall (1) knowingly and willfully make a false statement or misrepresentation for the purpose of obtaining, increasing, reducing, denying, or terminating benefits under this title; or (2) knowingly and willfully threaten, coerce, intimidate, deceive, or mislead a party, representative, witness, potential witness, judge, or anyone participating in a proceeding regarding any matter related to a proceeding under this title.^[82]

The Improvement Act also states that any person engaged in the conduct above will be subject to an investigation by a U.S. Attorney and may be subject to a fine or no more than five years in prison.^[83] This provision will put more pressure on attorneys and doctors to provide accurate medical opinions and not withhold evidence for the tribunal, which is what each party should have been doing in every black lung case. It would also provide a means to punish wrong-doers even if a claim is conceded after a judge discovers misconduct. Finally, this provision “gives teeth” to a court’s ability to address misconduct to attorneys and doctors personally instead of just the parties that they represent.

The Improvement Act provides that “an attorney or expert witness who engages in the conduct described [above] shall be permanently disqualified from representing any party, or appearing in any proceeding, under this title.”^[84] This provision goes further, stating that a tribunal may disqualify an attorney from bringing a black lung claim (either for a limited term or permanently) if he “engages in any action or behavior that is prejudicial to the fair and orderly conduct of such proceeding; or is suspended or disbarred by any court of the United States, any State, or any territory, commonwealth, or possession of the United States with jurisdiction over the proceeding.”^[85]

Ordinarily, any person may bring a black lung claim before the Department of Labor, including people that are not attorneys.^[86] This provision holds wrongdoers–even those that are not attorneys–accountable because it prevents them from being engaged in black lung cases in the future. If an attorney, doctor, or anyone for either party for that matter engages in misconduct, they should not be allowed to represent a party in a subsequent claim. Failing to add this provision allows wrongdoers to continue their misconduct even after it is found that they have committed wrongs in the past. Therefore, this provision creates a way to protect the integrity of the black lung claims process moving forward from misconduct.

The Improvement Act states that:

An administrative law judge may sanction a party who fails to comply with an order to compel discovery or disclosure, or to supplement earlier responses [by] … (1) drawing an adverse inference against the noncomplying party on the facts relevant to the discovery or disclosure order; (2) limiting the noncomplying party’s claims, defenses, or right to introduce evidence; and (3) rendering a default decision against the non-complying party.^[87]

The goal of this provision is to remedy a case where misconduct has created inaccurate evidence in favor of one party over the other. It will allow an ALJ to issue a sanction that allows a court to give less or no weight to medical evidence that was improper.^[88] Further, it punishes a wrongdoing party by demonstrating that misleading the tribunal or withholding unfavorable evidence will not help the party, but instead hurt the party’s chances of success. Finally, if misconduct is severe enough, it even allows an ALJ to enter a default judgment against the wrongdoing party.^[89] This is just another way of dissuading wrongdoers from misconduct before black lung tribunals.

The Improvement Act also provides a means to re-adjudicate claims that were denied based on a party’s misconduct.^[90] Specifically, the Improvement Act states that “any new [refiled] claim filed under subsection shall be adjudicated on the merits and shall not include consideration of a covered chest radiograph” and that “if a [refiled] claim, results in an award of benefits, benefits shall be payable beginning with the month of the filing of the denied claim that had included in its record a covered chest radiograph.”^[91]

In this provision, a “covered chest radiograph” is one that was interpreted as negative for black lung “by a physician with respect to whom the Secretary has directed, in writing and after an evaluation by the Secretary, that such physician’s negative interpretations of chest radiographs not be credited.”^[92] Even now, there are numerous doctors that the DOL has found as not credible.^[93] This provision would allow tribunals considering refiled cases not to consider any chest x-ray readings from doctors that have been discredited by the DOL. Likely even more important for claimants, if they are deemed successful in a subsequent claim, the RO will be responsible for paying from the date that a claimant’s original claim was filed – not the refile.

However, this provision also places burdens on claimants and their attorneys.^[94] The Improvement Act states that the DOL may deny a black lung claim where “the party opposing such claim establishes through clear and convincing evidence that a covered chest radiograph did not contribute to the decision to deny benefits in all prior claims filed by the covered individual or the covered survivor.”^[95] Therefore, just because an original claim is denied when a covered chest radiograph is included in the claim does not automatically mean that a subsequent court will grant benefits or give any presumptions to a claimant. The court must instead assess whether the covered chest radiograph contributed to the tribunal’s decision to deny a claimant benefits.^[96]

This portion of the Improvement Act is likely to: (1) punish attorneys, doctors, and any party that engages in unethical behavior in relation to a black lung claim; (2) reduce misrepresentations and fraud in black lung litigation; and (3) provide justice for claimants that were refused benefits due to misrepresentations by disqualified experts. It is further worth noting that in accomplishing each of these goals, it is likely that the public – specifically potential claimants – will have more faith in the judicial system. As such, more miners suffering from black lung symptoms will seek benefits. This will further the goal of providing medical and monetary benefits to the disabled miners that need them.

C. Counter Arguments for this Provision

While a statute regulating fraud would hopefully not receive much push-back, one conceivable counterargument against this portion of the Improvement Act is that it will reduce the number of attorneys practicing in black lung (this was described earlier as already being a problem). However, the dilemma involving the availability of black lung attorneys is mostly a problem for claimants to black lung litigation, and most of the fraud that has been uncovered in the past is on the side of the RO.

Another likely counterargument is that 20 CFR § 725.413 provides an adequate remedy against attorneys or doctors that would think of withholding or misrepresenting medical evidence. However, this regulation does not go far enough because it places the penalty primarily on the party that a non-disclosing attorney or doctor represents rather than the individual himself.

Further, if one attorney is disqualified due to unethical behavior on the part of an RO attorney, it would be exceptionally easier for a coal company to find another black lung attorney than it would be for a claimant. Further, even if regulating fraud would reduce the amount of black lung attorneys, it would still be worth it. There should be no place in litigation for attorneys that mislead or withhold evidence for the tribunal.

VI. Conclusion

America’s miners have fueled the nation for over 100 years, sacrificing their short-term safety and long-term health in doing so. Unfortunately, thousands of these miners suffer from black lung every year, fighting for each breath they get. The BLBA has, in some ways, met its goal of providing disabled miners with the means to live with this horrible, progressive disease. However, there is still plenty of work to be done.

As written, the BLBA puts miners and their attorneys at a disadvantage from the start of a claim. Claimant attorneys are paid later and less than RO attorneys and face a much more uphill battle in seeking to provide benefits for their clients. The BLBA has led to stalled litigation by which miners wait in limbo for years with a progressive disease, just to be told that they do not qualify under the program. Lastly, the BLBA has allowed parties to mislead tribunals, withhold evidence, and break ethical codes without holding any of the parties responsible accountable for these actions. The Improvement Act seeks to address these critical issues and more.

The Improvement Act will allow miners greater access to legal representation and help claimant attorneys get paid more expediently. It will revive faith in the administrative, judicial system by reducing lag time in litigation. Lastly, it will provide a method of reducing fraud and ethical violations in association with black lung litigation. The Improvement Act has the potential to continue the legacy of the BLBA by making changes that are beneficial to claimants, their attorneys, and to society.

Since miners have sacrificed so much for this country, it is only logical that this country should make some sacrifices for them by passing the Improvement Act.