Legal Fees

Mr. POPICK. That is true, but one point I would make is that under our administration of the part B portion of the law, we take into account a prior State determination of disability due to black lung. That determination is not, however, necessarily determinative for the purpose of the Federal program in that we require evidence to establish the individual's entitlement.

Senator Cook. We wouldn't be so naive as to say it does kind of constitute an uphill fight. You don't really have to take that determination at the State level in effect, but if that State level determination is negative, the claimant does have himself kind of a hard way to go, doesn't he?

Mr. POPICK. In the Federal program? I would say that we look at the evidence quite objectively, and while we do look at that evidence and consider it fully, unless that evidence obtained under a State program does not support his entitlement under the Federal program, then there is no presumption for or against the applicant on the basis of the State determination, because in many cases, as was already mentioned, there are some differences in the requirements as between the State program and the Federal program.

So we have to consider the evidence available in terms of the requirements of the law and the regulations without regard to the State determination in that case.

Senator Cook. I am delighted to hear that. But I must say in all fairness, just the mentality of man and his interpretation whether a determination has been made, that it becomes kind of an uphill fight if he comes from a State with a negative approval of his claim. And it seems to me what you are really doing, you are looking at it then in presumption whether the evidence in that claim falls within the framework under the law, where it is wider and it is all inclusive, rather than particularly-in other words, I could see, for instance, where you would take full and complete consideration and waive previous proof if somebody had lost his claim because of the 2-year requirement. But I am talking based exclusively and thoroughly on medical examination, that the presumption is that he has got a job to do to establish his claim, even under the Federal legislation, as opposed to the State legislation.

I mean, after all, if you are really telling me you don't do this, then we just ought to sit back and let everybody run their gauntlet and get turned down on the State level and automatically file with

because they are going to be approved and automatically they will be approved and automatically that is not so.

Mr. POPICK. Automatically that is not so.

Senator TUNNEY. Maybe we can hear from Ms. Snyder and then ask questions.

STATEMENT OF NANCY SNYDER, DIRECTOR, DIVISION OF COAL MINE WORKER'S COMPENSATION, OFFICE OF WORKMEN'S COMPENSATION PROGRAMS, DEPARTMENT OF LABOR; ACCOMPANIED BY JAMES JOHNSTON, ASSOCIATE SOLICITOR, DIVISION OF EMPLOYEE BENEFITS

Ms. SNYDER. My statement is short and I have cut it considerably,

Senator TUNNEY. It will go into the record in full.

Ms. SNYDER. My name is Nancy Snyder and I am Director of the Division of Coal Mine Workers' Compensation, Office of Workmen's Compensation Programs, Employment Standards Administration, U.S. Department of Labor.

On July 1, 1973, as you know, the Department of Labor assumed responsibility for processing black lung claims from living miners which had prior to that time, been the responsibility of the Social Security Administration. The Black Lung Benefits Act of 1972, which amends title IV of the original 1969 Coal Act, sets up a transitional period to run from July 1, 1973 to December 31, 1973. During this period, there will be an orderly transfer of responsibility for the black lung program from the Social Security Administration to the Department of Labor. With this shift, there will be an accompanying shift of financial responsibility to the coal industry. As to all claims filed after July 1, 1973, the industry will be responsible for benefits as of January 1, 1974.

As of September 26, 1973, the Division of Coal Mine Workers' Compensation has been notified by the Social Security Administration that 10,385 claims have been filed. Of this number, 5,358 have been received in the Division for determination of eligibility and are being processed presently expeditiously.

If an initial determination of medical eligibility is made, the appropriate coal operator is identified and notified of his potential liability. Absent the existence of a responsible coal operator, the Federal Government, through the Department of Labor, is potentially liable.

Senator TUNNEY. Will the coal operator then have a-——————

Ms. SNYDER. A time period in which he could contest or to inform us that he wishes to contest.

Senator TUNNEY. And he can bring in his physicians?

Ms. SNYDER. Yes, sir. He will have his own lawyers and he certainly could bring in his own radiologist and other diagnosticians.

Except for the Secretary of Labor, whose interests shall be represented by the Solicitor of Labor or an authorized attorney on his staff, each of the parties in interest may appoint an individual to represent his interest in an adjudicatory proceeding. Such appointment must be made in writing to the adjudication officer and must be signed by the party in interest or his or her legal guardian.

If a claimant is represented by an attorney or other person, any fee which the representative proposes to charge the claimant must

receive prior approval by the Department. The appropriate adjudication officer will be responsible for reviewing such requests and approving fees.

An evaluation scheme is set up similar to those both the State and Social Security Administration use.

If a claim is not taken to the hearing stage, the Deputy Commissioner who has presided over the conference will, in the usual case, be guided by the following guidelines: (a) The total amount requested by the representative, when divided by the total number of hours claimed by the representative, should not exceed a range of $25 to $35. (b) If the above guideline is met, the total amount of the request should nevertheless not exceed a range of $300 to $350.

Senator Cook. How are you going to get a claimant to have a lawyer in this adversary proceeding again to represent somebody all the way through the court of appeals and conceivably the Supreme Court of the United States, if you are talking about not exceeding a range of $300 to $350?

Ms. SNYDER. That figure refers to the informal conference. I mentioned on the prior page that we expect most of our cases to be resolved at an informal conference with the Department of Labor, the claimant and the responsible operator.

Senator Cook. Will these hearings take place in the field?

Ms. SNYDER. They will. Within a 50-mile radius of the claimant's residence.

Senator Cook. That is in your regs?

Ms. SNYDER. It is in the program manual.

Now, there is, however, another option.

(c) If the above guidelines are not met-that is the 300 to 350the Deputy Commissioner may nevertheless approve a fee which exceeds the amounts prescribed above where the issues involved in a case are particularly complex, the proceedings have been particularly protracted, or it is otherwise apparent that the representative has rendered services which have been of unusual value to the claimant.

Where a claim is pursued beyond the conference stage, the administrative law judge or Benefits Review Board will set an appropriate fee.

If I may interject here, the administrative law judges and Benefits Review Boards, as you know, have a long history and experience in rating, in the matter of setting fees, which, we are all aware, has not been subject to public criticism.

In the September 17, 1973, Federal Register, a notice of proposed rulemaking was published discussing the question of offsets for payment of legal fees incurred by the claimant in pursuing a claim for State benefits, which both Mr. Cawood Smith and Mr. Popick have discussed. And I would like to just briefly review it from the Department of Labor's point of view.

As I said, we have published in the Federal Register and invited for comments by October 17, 1973, the question of whether the expenses for medical, legal or related evidence incurred by the

claimant in pursuing State benefits, will be excluded in computing benefit reduction for Federal black lung benefits, or if the total compensation award will be counted. This issue can make a substantial difference, as we are quite aware, in the amount of benefits received by the claimant, as well as costs to the Federal Government. A simplified example shows:

If a claimant received from the State his basic gross entitlement, of $2,500, less a legal fee of $1,000, the claimant receives net $1,500. If his Federal entitlement is $4,000, under the gross concept we would subtract the gross amount of the State $2,500, and the claimant would receive $1,500.

However, under the net concept, still constant is the $1,000 legal fee and we would offset the net amount received under the State, $1,500 and the claimant would receive $2,500.

The resulting impact of these approaches is as follows:

Under the "Net" approach: The individual receives more money; the liability of either the operator or the Federal Government, depending on which is deemed liable, is more.

Under the "Gross" approach: The claimant receives less money; the liability of the Federal Government or the responsible operator is less.

To better inform black lung claimants, a brochure in simple concise language is now in final stages of preparation, explaining the complete claims processing system through final appeal. These brochures will be made available to all claimants as soon as they are printed.

Additionally, all Department of Labor black lung claims examiners have received instructions in the entire adjudicatory system, in order to be fully prepared to inform all claimants concerning all aspects of the system. While claims examiners will not encourage black lung claimants to obtain representatives at the initial application stage, they will be expected to take all necessary steps to insure the claimants' interests are protected and that claimants are pursuing appropriate courses of action, including obtaining representation if it is felt this is in the claimant's best interest.

Thank you.

[Ms. Snyder's full statement follows:]

STATEMENT OF NANCY SNYDER, DIRECTOR, DIVISION OF COAL MINE WORKER'S COMPENSATION, OFFICE OF WORKMEN'S COMPENSATION PROGRAMS

My name is Nancy Snyder and I am Director of the Division of Coal Mine Workers' Compensation, Office of Workmen's Compensation Programs, Employment Standards Administration, U.S. Department of Labor. I welcome the opportunity to appear before you today to give you an overview of the Department's procedures regarding legal fees under the Coal Mine Safety Act of 1969, as amended.

On July 1, 1973, as you know, the Department of Labor assumed responsibility for processing black lung claims from living miners which had prior to that time, been the responsibility of the Social Security Administration. The Black Lung Benefits Act of 1972, which amends Title IV of the original 1969 Coal Act, sets up a transitional period to run from July 1, 1973 to December 31, 1973. During this period, there will be an orderly transfer of responsibility for the Black Lung program from the Social Security Administration to the Department of Labor. With this shift, there will be an accompanying shift of

financial responsibility to the Coal industry. As to all claims filed after July 1, 1973, the industry will be responsible for benefits as of January 1, 1974. Under current procedures, the Social Security Administration district offices are accepting all black lung claims, securing initial medical and employment evidence, then forwarding those claims to the Department of Labor for determination of eligibility. As of September 26, 1973, the Division of Coal Mine Workers' Compensation has been notified by the Social Security Administration that 10,385 claims have been filed. Of this number, 5,358 have been received in the Division for determination of eligibility.

Following the initial medical determination, the procedure for determining final eligibility is identical whether or not the Government or the coal operator is deemed liable. The procedure, in general, includes: (1) an informal conference called by the Deputy Commissioner to resolve the issues; (2) absent a resolution, the case would move to a formal hearing before an Administrative Law Judge in a de novo proceeding; (3) appeal to the Benefits Review Board; and (4) appeal to the Court of Appeals and Supreme Court, if necessary. the Solicitor of Labor or an authorized attorney on his staff, each of the parExcept for the Secretary of Labor, whose interests shall be represented by the Solicitor of Labor or an authorized attorney on his staff, each of the parties in interest may appoint an individual to represent his interest in an adjudicatory proceeding. Such appointment must be made in writing to the adjudication officer and must be signed by the party in interest or his or her legal guardian.

If a claimant is represented by an attorney or other person, any fee which the representative proposes to charge the claimant must receive prior approval by the Department. The appropriate adjudication officer will be responsible for reviewing such requests and approving fees.

In evaluating a request for approval of a fee, the following factors may be considered:

The nature of the services performed;

the complexity of the case;

the level of skill and competence required in rendering the services;

the amount of time spent on the case;

the level of administrative proceedings to which the claim was carried and the level at which the representative entered the proceedings; and

the amounts of any or reimbursement for expenses previously authorized, paid or requested.

If a claim is not taken to the hearing stage, the Deputy Commissioner who has presided over the conference will, in the usual case, be guided by the following guidelines.

(a) The total amount requested by the representative, when divided by the total number of hours claimed by the representative, should not exceed a range of $25 to $35.

(b) If the above guideline is met, the total amount of the request should nevertheless not exceed a range of $300 to $350.

(c) If the above guidelines are not met, the Deputy Commissioner may nevertheless approve a fee which exceeds the amounts prescribed above where the issues involved in a case are particularly complex, the proceedings have been particularly protracted, or it is otherwise apparent that the representative has rendered services which have been of unusual value to the claimant.

Where a claim is pursued beyond the conference stage, the Administrative Law Judge or Benefits Review Board will set an appropriate fee.

In the September 17, 1973 Federal Register, a notice of proposed rulemaking was published discussing the question of offsets for payment of legal fees incurred by the claimant in pursuing a claim for State benefits. This notice invites public comment by October 17, 1973, on whether the expenses for medical, legal or related evidence incurred by the claimant in pursuing State benefits, will be excluded in computing benefit reduction for Federal black lung benefits, or if the total compensation award will be counted. This issue can

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