2 In addition to the above legislation, the Longshoremen and Harbor Workers' Compensation Act contains certain provisions which Congress has made applicable to the Black Lung program. This Act sets out procedures for administering a Federal compensation program in which disability benefit payments are assumed by individual employers who are deemed responsible for such benefits. The Act also mandates the insuring of these benefits, calls for the provision of medical treatment and vocational rehabilitation services, and prescribes the hearings and appeals procedures which must be followed. Program Components The legislation provides for monthly benefit payments at legislatively established rates. The basic rate increases with the number of dependents a miner has, up to a limit of 3 dependents. For example, a miner with a wife and one child collects the basic rate of $169.80 plus $127.30 for a total of $297. 10, while a miner with a wife and two children gets $339. 50. However, a miner with more than 3 dependents can collect no more than $339.50. This amount is set by the law as 50 percent of the minimum monthly payment under the Federal Employees' Compensation Act to a disabled Federal employee in the first step of grade GS-2. Accordingly, the monthly benefit payments will increase as there are Federal pay raises. Miners who file claims after June 30, 1973 with DOL, will be entitled to medical treatment services after December 31, 1973 in addition to their benefit payments. The medical benefits are allowable under the 1972 Act and are contingent upon the approval of a claim. Temporary Nature of Program The Black Lung Program is temporary in two respects--Federal responsibility and length of program. The temporary Federal responsibility is related to the Federal Government's obligation to: 1) identify a "responsible operator" in the coal industry to make the benefit payments, and 2) to encourage the States to assume the Black Lung program under their own Workmen's Compensation programs. In addition, the length of the Federal program is statutorily limited; no new filings will be accepted after December 31, 1981. 3 State Assumption In order for States to assume Black Lung program responsibilities under the Federal Act, they must meet certain criteria prescribed by the Secretary of Labor based on requirements in the law. These criteria must include: 1) benefits for totally disabled miners or those miners who have died from CWP, 2) benefit payments "equivalent" to the rate prescribed by law, 3) standards for determining disability equivalent to the Federal standards, 4) validity of claims only if filed within three years of the discovery of total disability or death due to CWP, and 5) claims procedures and policies consistent with the Longshoremen and Harbor Worker's Act and DOL regulations. These criteria were published in the Federal Register (20 CFR 722) on March 30, 1973. At the present time, no State Workmen's Compensation program meets these standards. Thus, new claimants may pursue their rights to benefits under both State and Federal programs, although any benefits paid under the State program will be offset from amounts due under the Federal program. Responsible Operator Title IV of the Act requires the Secretary of Labor to determine a "responsible operator," who will be liable for payments to disabled coal miners and their survivors. These payments by responsible operators will begin January 1, 1974. In keeping with the temporary Federal role in the program, the responsible operator concept attempts to make the coal industry responsible for the benefit payments to miners instead of the Federal Government. Operators are required to guarantee benefit payments by obtaining an approved amendment "endorsement") to their insurance policy with a private carrier, or by self-insuring with the Department of Labor. Department of Labor Role The Department of Labor's administrative responsibilities for the program include the following: 1) to take, adjudicate, and pay claims during the transition period from July 1, 1973, through December 31, 1973, 2) starting January 1, 1974, to continue to take, and make determinations regarding claims, but only pay benefits for claims when a responsible operator cannot be identified and when the State does not have a Workmen's Compensation Program that meets the Federal criteria, 3) to notify coal mine operators of their liability to pay benefits for any period after December 31, 1973, and 4) to adjudicate any differences that the claimant or operator may have with the Department's findings through a system of conferences and formal hearings. In addition, the Department will administer a compliance program to insure that coal mine operators do not use discriminatory employment practices in dealing with miners who have the disease in order to avoid subsequent liability for benefit payments. Senator TUNNEY. Mr. Daniel Mullins, a miner from Kentucky who was not able to be with us today as a result of adversity, his statement along with the separate statement of three other Kentucky miners and Bill Worthington, president of the Kentucky Black Lung Association will all be placed in the record at this point. [Testimony resumes at p. 328.] STATEMENT OF MR. DANIEL MULLINS My name is Daniel Mullins. I live at Drift, Floyd County, Kentucky. I appreciate the opportunity to appear before you today to talk about my experience in applying for black lung benefits and the awarding of the attorney fee. I am here today but not only for myself but for numerous other disabled miners and fellow members of the Black Lung Association who have urged me to come for many of them have had similar experiences. I have lived in the Appalachian region of Kentucky all my life. My wife and I have ten children, and six are living with us at this time. I was in the Army from January, 1942, to November, 1945, and I fought in the Pacific. I received an Honorable Discharge. After I got out of the service, I worked in the coal mines off and on until June 10, 1960, when I was involved in a rock fall in the mine which crushed one of my legs leaving me totally disabled. After this accident my family and I had to depend on Workmen's Compensation, Social Security disability, and Veterans benefits. The monthly income from these programs totaled $335 as of January, 1970, when I learned of the Black Lung Program. On January 14, 1970, I picked up a Black Lung Application at the Drift Post Office and filled it out and took it to the Social Security Office in Pikeville, Kentucky. They told me that between my time in the mines and my service time, that I had enough time to qualify for black lung if I met the medical requirements. About four months later the Social Security Administration sent me to the McDowell Appalachian Regional Hospital for an X-ray and breathing test. I was X-rayed but was not given the breathing test. Approximately six weeks later I received notice that my claim had been denied. At this time I was advised by neighbors to get an attorney to assist me with my claim. I went to Martin, Kentucky, and hired Mr. Chad Perry, an attorney, to handle my case. I talked with him for about 15 minutes and he made an appointment for me to see a doctor in Paintsville for a breathing test. He also told me to get a chest X-ray on my own and have it mailed to him. I paid $20 to the doctor in Paintsville for the breathing test, and my state medical card covered the cost of the X-ray. About six weeks later Mr. Perry sent me a copy of the X-ray report which said I had black lung. After another four weeks he sent me a letter advising me that I should have another breathing test, this time by a doctor at Elkhorn City, Kentucky. I went to see this doctor and paid $15 for that examination. As far as I know Mr. Perry had my X-ray read and got the reports in support of my claim and the breathing tests reports into my file at Social Security. He told me that he spent 72 hours on my case. On December 29, 1972, I received notice that my black lung claim had been approved. To say the least, I was very pleased that I had been awarded benefits but I was surprised that $2,672.97 was held out from my back-pay check for lawyer fees. I was not sure if the Social Security Administration would pay Mr. Perry the total amount which was withheld. The award letter said that an attorney fee determination would be made at a later date. On February 15, 1973, I received a notice from the Social Security Administration that Mr. Perry had been awarded a $1,200 fee for his services. However, on March 29, 1973, I received another letter from the Social Security Administration in Baltimore notifying me that Mr. Perry had protested the attorney fee award. The letter included Mr. Perry's statement in support of his claim (which I am furnishing with this statement), and advised me that I could respond within ten days. I felt that Mr. Perry had been awarded enough by the Social Security Administration for the services he provided me and I certainly did not want him to receive the additional $1,472.967 that was withheld. I did not really know what to do, so I asked one of the attorneys in the legal services program in Prestonsburg. He told me I could send a letter stating that I felt the $1,200 award was enough for the amount of work Mr. Perry did for me, and that is what I did. A copy of my letter is furnished with this statement. In early May I received a copy of a letter sent to Mr. Perry by the Social Security Administration which supported my case and on June 14, 1973, I received formal notice that the attorney fee of $1,200 was affirmed and that I would receive a check for $1,472.97 which I received in July. As I stated above, I felt that Mr. Perry's fee of $1,200 was enough for the work he did for me and I was very pleased that the Social Security Administration supported my claim. I only wish that I knew what I do now because I might not have hired an attorney. While Mr. Perry was helpful in advising me and assisting me in getting the medical evidence, it appears to be something one could do by himself. In fact, the Social Security Administration could and should provide this type of help. On Sunday, September 23, 1973, Mr. Perry came to my house to discuss my case. He had read in the paper that I was scheduled to testify before this Committee. Mr. Perry reviewed the work he had done on my case. I told him that I did not object to the $1,200 fee. Since Social Security had set this fee, I figured it must be a fair amount. So I was willing to sign an affidavit for Mr. Perry stating that he fairly earned this fee. (A copy of the affidavit is attached.) I signed the affidavit because I knew he was entitled to an attorney fee and that he did assist me in getting benefits. Also, while I stated in the affidavit that I believed I would not have won without his efforts, I did not mean to say that Mr. Perry is the only person who could have won my case. From what I know now, there are persons other than attorneys who know the procedures for handling these claims and who can represent claimants under the law. I know that there are times when an attorney may be necessary for a claim to be processed. But I know that many of my friends have been able to get help with their claims from persons in the Black Lung Association and Eastern Kentucky Welfare Rights Organization, and did not have to hire an attorney. I have also tried to learn as much as I can about the procedures so I can help others. Even if an attorney is required, I don't see why the attorney fee has to come out of the miner's pocket. It seems that the federal government should pay the attorney fees. I have come to testify today because the members of the Black Lung Association feel this an important thing for me to do. We do not have anything against attorneys getting paid for their work. As I stated before, I did not object to the $1,200 attorney fee. We do think the amounts should be fair and figured on some other basis than an automatic 25 percent of the miner's own back benefits. Also, we believe Social Security could save a lot of us money by helping persons process their claims so that we would not even need an attorney, and that even Social Security could advise the miner when an attorney would be needed. Finally, it would be a real help if Social Security would write us in a way we can understand, and so we do not have to ask an attorney to interpret their letters to us. Thank you for letting me appear today. I hope you will give other disabled miners in Kentucky and elsewhere who have gotten their black lung benefits a chance to tell their experiences too. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Mr. DANIEL MULLINS, SOCIAL SECURITY ADMINISTRATION, DEAR MR. MULLINS: Mr. G. C. Perry, III, the attorney who represented you in your claim for black lung benefits, has protested the amount of the fee which we authorized that he collect from you. The fee which we set was $1,200. We paid this fee to the attorney out of funds we withheld from past due benefits which had accrued to you at the time we allowed your claim. If |