[Federal Register Volume 62, Number 14 (Wednesday, January 22, 1997)]
[Proposed Rules]
[Pages 3338-3435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-44]
[[Page 3337]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment Standards Administration
_______________________________________________________________________
20 CFR Parts 718, et al.
Regulations Implementing the Federal Coal Mine Health and Safety Act of
1969, as Amended; Proposed Rule
Federal Register / Vol. 62, No. 14 / Wednesday, January 22, 1997 /
Proposed Rules
[[Page 3338]]
DEPARTMENT OF LABOR
Employment Standards Administration
20 CFR Parts 718, 722, 725, 726 and 727
RIN 1215-AA99
Regulations implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
AGENCY: Employment Standards Administration, Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor proposes to amend the regulations
implementing the Black Lung Benefits Act. Most of the affected
regulations govern the processing and adjudication of individual claims
filed by former coal miners and their surviving dependents, including
the medical criteria used to adjudicate the entitlement of those who
file claims and the criteria used to determine which of the miner's
former employers will be liable for the payment of benefits. In
addition, the Department proposes to eliminate outdated regulations
setting forth criteria for approving state workers' compensation
programs; to discontinue the annual publication, in the Code of Federal
Regulations, of the interim criteria governing claims filed prior to
April 1, 1980; and to revise the criteria governing the responsibility
of coal mine operators to secure the payment of benefits to their
employees.
DATES: Comments must be submitted on or before March 24, 1997.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to James L. DeMarce, Director, Division of Coal Mine Workers'
Compensation, Room C-3520, Frances Perkins Building, 200 Constitution
Ave., N.W., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 219-6692.
SUPPLEMENTARY INFORMATION: The Department last amended the regulations
implementing the Black Lung Benefits Act, 30 U.S.C. 901 et seq., in
1983, more than thirteen years ago. Since then, litigation before the
various U.S. courts of appeals and the Benefits Review Board has
resulted in the clarification of many substantive areas. Moreover, the
Office of Workers' Compensation Programs' experience in administering
the program during this period has resulted in a variety of suggestions
for change with the goal of helping to improve services, streamline the
adjudication process and simplify the regulations' language. Thus, the
Department proposes numerous changes in order to streamline, update and
clarify these program regulations.
Summary of Noteworthy Proposed Changes
Evidentiary Development
The proposed regulations contain a limitation on the amount of
documentary medical evidence parties may submit. The designated
responsible coal mine operator or the Director, whichever party is
liable, and the claimant are limited in their affirmative presentations
to two complete pulmonary evaluations or consultative reports a piece.
Documentary rebuttal evidence is limited to one interpretive opinion
with respect to each part of the pulmonary evaluation submitted by a
party's opponent. See proposed Sec. 725.414.
The Department proposes these changes in order to ensure that
eligibility determinations are based on the best quality evidence
submitted rather than on the quantity of evidence submitted by each
side. Currently, in establishing their eligibility to benefits,
claimants must confront the vastly superior economic resources of their
adversaries: coal mine operators and their insurance carriers. Often,
these parties generate medical evidence in such volume that it
overwhelms the evidence supporting entitlement that claimants can
procure. The proposed changes limiting evidentiary development attempt
to make more equitable the adjudication of black lung claims and reduce
the costs associated with these cases.
The proposed regulation also fundamentally restructures the claims
adjudication process by focusing evidentiary development at the
district director level. The regulation requires all parties to develop
their documentary medical evidence and submit it to the district
director for consideration. Once a claim is referred for a hearing
before the Office of Administrative Law Judges, additional documentary
medical evidence will be admitted into the record only on a showing of
extraordinary circumstances or if the claimant has not been provided
with an adequate complete pulmonary evaluation by doctors of the
Department's choosing. The administrative law judge who conducts the
hearing may permit the parties to elicit testimony only from a limited
group of witnesses, including any physician whose report was submitted
to the district director. The judge will base his decision on a de novo
review of the evidentiary record developed by the district director and
the hearing testimony. See proposed Secs. 725.414, 725.456 and 725.457.
This proposed procedure departs from current practice by excluding
the admission of most additional documentary evidence while a claim is
pending before an administrative law judge. Parties presently often
reserve the active development of medical evidence until a claim is
referred for hearing. Permitting additional evidentiary development
before the administrative law judge was logical when significant delays
occurred between the district director's decision and the hearing
before the administrative law judge. Such delays no longer occur in a
statistically significant percentage of claims. Consequently, the
practical need for permitting evidentiary development at the hearing
stage has disappeared.
The Department believes that these proposed procedural changes
requiring evidentiary development before the district director will
encourage prompt and complete evidentiary development at the earliest
stages and will therefore allow the Department to conduct a thorough
and meaningful initial adjudication of each claim. The Department
believes that the fair, efficient and expeditious adjudication of
claims is a desirable objective which can be promoted by limiting the
amount of medical evidence developed and encouraging all parties to
participate actively at the earliest stages of the process.
Identification of Responsible Operators
The proposed regulations provide that a district director may name
one or more ``potentially liable operators'' from among a miner's
former employers. The potentially liable operator that most recently
employed the claimant will generally be the responsible operator liable
for the payment of benefits. The proposed regulations afford the
district director considerable flexibility, however, in notifying
potentially liable operators; they may be notified seriatim after the
district director evaluates the response from the miner's most recent
employer or does not receive any response. If a potentially liable
operator contests its identification, it must submit documentary
evidence supporting its position to the district director. In cases
involving difficult responsible operator identification issues, the
district director may retain more than one potentially liable operator
as a party to the case. See proposed Secs. 725.407 and 725.408.
The district director will choose a responsible operator from among
the
[[Page 3339]]
identified potentially liable operators and will notify the parties of
this determination in his initial findings. The designated responsible
operator must respond to the notice of initial findings within 30 days
and must specifically indicate whether it agrees or disagrees with the
initial finding of liability. See proposed Secs. 725.410, 725.412. In
the event further adjudication of the claim is required, the district
director may retain as parties to the case other potentially liable
operators in order to preserve the Department's right to compel the
payment of benefits by the responsible operator ultimately determined
to be liable for the claimant's benefits. See proposed Sec. 725.413.
To ensure that the claimant is not overwhelmed by operator-
developed medical evidence, however, the proposed regulations limit all
potentially liable operators and the designated responsible operator to
a total of two pulmonary evaluations or consultative reports as an
affirmative case. Because all of the named operators have an identical
interest with respect to the claimant's eligibility, the Department
does not believe that unfairness will result from limiting the total
evidence submitted. The designated responsible operator will have the
responsibility and, indeed, the obligation, to develop the operators'
case in chief on behalf of all named operators. Any named operator,
other than the responsible operator, must request the district
director's permission in order to schedule the claimant for a medical
examination. This permission may be granted only upon a showing that
the responsible operator has not undertaken a full development of the
evidence. In no event will the claimant be required to undergo more
than two pulmonary examinations by the parties opposing his
eligibility. See proposed Sec. 725.414.
The proposed responsible operator regulations also assign both the
Office of Workers' Compensation Programs (OWCP) and the designated
responsible operator burdens of proof. Under proposed Sec. 725.495, the
Department bears the burden of proof to identify the responsible
operator initially found liable for the payment of benefits. In order
to carry this burden of proof, OWCP must establish that the responsible
operator is a ``potentially liable operator,'' i.e., that it was an
operator after June 30, 1973, that it employed the miner for at least
one year, that at least one day of that employment occurred after
December 31, 1969, and that the miner was exposed to coal mine dust
while working for the operator. In addition, in any case in which the
designated responsible operator is not the miner's most recent
employer, the record must include a statement that OWCP has
investigated its files and has determined that it has no record that a
more recent employer insured its liability under the Act, or was
authorized to self-insure such liability.
Once OWCP has met its burden of proof, the burden shifts to the
designated responsible operator. The operator may avoid liability for
the claim only if it establishes: (1) that it is not financially
capable of assuming liability for the claim; or (2) that one of the
miner's more recent employers meets all of the criteria for a
potentially liable operator. The burden imposed on the designated
responsible operator under this second alternative includes a showing
that the more recent employer is financially capable of assuming
liability. See proposed Sec. 725.495.
If the designated responsible operator carries its burden of proof
and establishes that it was incorrectly identified and OWCP has failed
to name and retain as a party the coal mine operator ultimately found
liable as the responsible operator, the Trust Fund will bear liability
for the claim. In such a case, OWCP will make no attempt to name a new
responsible operator and force the claimant once again to establish his
entitlement to benefits. See proposed Sec. 725.407(d) allowing the
district director to identify and notify a responsible operator only
before a case is referred to the Office of Administrative Law Judges.
Civil Money Penalty
The proposed regulations contain new provisions implementing the
Act's civil money penalty provision, which directs the assessment of a
penalty of up to $1,000 per day against operators that fail to secure
the payment of benefits, either by purchasing commercial insurance or
qualifying as a self-insurer. 30 U.S.C. 933(d). The proposed
regulations establish criteria and streamlined procedures to be used in
assessing penalties. They provide notice of the Department's intention
to minimize the financial burden that uninsured operators currently
place on those operators in compliance with the Act's security
requirements and on the Black Lung Disability Trust Fund. See proposed
20 CFR part 726, subpart D, Secs. 726.300-726.320.
The proposed regulations provide a graduated series of possible
penalties based on a set of criteria, including the operator's size,
its prior notice of the Act's insurance requirements and the operator's
action, or inaction, following this notification. See proposed
Sec. 726.302. After receipt of a notice of penalty assessment and entry
of a timely notice of contest, an operator may request a hearing before
the Office of Administrative Law Judges. See proposed Sec. 726.307. The
ensuing decision will address whether the operator has violated the
Act's insurance requirements, whether the individuals identified by the
Director as potentially severally liable for the penalty were in fact
the president, treasurer or secretary of the corporation during the
relevant time period and, finally, the appropriateness of the penalty
assessment. See proposed Sec. 726.313. The Director or any party
aggrieved by a decision of the administrative law judge may petition
the Secretary for review, which will be conducted using a substantial
evidence standard. See proposed Secs. 726.314, 726.318.
The proposed regulations also impose an additional requirement on
self-insured operators. They require that such operators continue to
secure the payment of benefits to their employees even after the
operator has ceased mining coal. This additional requirement is
necessary given the limited amount of security typically required of
operators who self-insure and the prolonged time periods after coal
mine employment has ceased during which miners may file claims for
benefits. See proposed Sec. 726.114(c).
Treating Physicians' Opinions
The Department proposes a new paragraph (d) of 20 CFR 718.104, the
regulation governing reports of physical examinations. The proposed
paragraph would give certain treating physicians' opinions controlling
weight in determining whether the miner is totally disabled or died due
to pneumoconiosis. The proposed language would mandate that, when
weighing a treating physician's opinion, the factfinder must consider
the nature and duration of the relationship between the miner and the
physician, the frequency and extent of the physician's treatment, and
the credibility of the doctor's opinion in light of his reasoning and
documentation. The factfinder must also consider the opinion's
consistency with the other relevant evidence, and the doctor's training
and specialization.
Waiver of Overpayments
The Department proposes amending Sec. 725.547(a), which addresses
the applicability of overpayment provisions to coal mine operators and
their
[[Page 3340]]
insurance carriers. The proposed regulation would make available to all
overpaid claimants the provisions governing waiver of recovery of an
overpayment incorporated from the Social Security Act, 30 U.S.C.
923(b), 940, incorporating 42 U.S.C. 404(b).
Currently, only a claimant who receives an overpayment from the
Black Lung Disability Trust Fund may be relieved of his repayment
obligation. Such a claimant is entitled to waiver of recovery of the
overpayment if he can demonstrate that permitting recovery would
``defeat the purpose of the Act'' or ``be against equity and good
conscience.'' Only those individuals who were not ``at fault'' in
creating the overpayment are eligible for waiver. The Department has
concluded that these waiver provisions should be available to all
claimants, including those who are overpaid by operators and insurance
carriers. Thus, under the proposed language, any individual who has
received an overpayment will have the opportunity to establish that the
two-part test for waiver is met.
Establishing Total Disability and Total Disability Due to
Pneumoconiosis
Proposed Sec. 718.204 amends the definition of ``total disability''
and makes explicit the Department's position with regard to
establishing total disability due to pneumoconiosis. Both of these
changes reflect the decisions of numerous courts of appeals. In order
to be found ``totally disabled,'' a miner must have a respiratory or
pulmonary impairment which, standing alone, prevents him from
performing his usual coal mine employment. See proposed
Sec. 718.204(b). In order to establish entitlement, the miner must also
demonstrate that his total disability is due to pneumoconiosis. This
showing is made by establishing that pneumoconiosis is a substantially
contributing cause of the totally disabling respiratory or pulmonary
impairment. See proposed Sec. 718.204(c). Finally, proposed
Sec. 718.204(a) also makes clear that a concurrent disability due to a
nonrespiratory or nonpulmonary condition will not disqualify the miner
from receipt of black lung benefits if the miner can also demonstrate
total disability due to pneumoconiosis.
Additional or Subsequent Claims
The proposed regulations clarify claimants' right to file
``additional'' or ``subsequent'' claims, those claims filed more than
one year after denial of a previous claim. See proposed
Sec. 725.309(d). Under this proposal, the claimant may escape automatic
denial of an additional claim on the grounds of the prior denial, by
demonstrating that a change in one of the applicable conditions of
entitlement has occurred since the date upon which the order denying
the prior claim became final. The changed regulatory language codifies
the holdings of several courts of appeals.
The applicable conditions of entitlement are limited to those
conditions upon which the prior denial was based. If the applicable
conditions of entitlement relate to the miner's physical condition and
the new evidence submitted with the additional claim establishes a
change in at least one applicable condition, the proposed regulation
contains a rebuttable presumption that the miner's physical condition
has changed. Once a change in an applicable condition of entitlement is
established, none of the findings made in connection with the prior
claim, except those based on a party's failure to contest an issue,
shall be binding in the adjudication of the subsequent claim, and the
claim must be adjudicated on the merits.
Medical Benefits
Proposed Sec. 725.701(e) provides that in any claim for
compensation for treatment of a pulmonary disorder filed by a miner
entitled to medical benefits, there shall be a rebuttable presumption
that the treatment was for a disorder caused or aggravated by
pneumoconiosis. This amended regulatory language codifies a decision of
the United States Court of Appeals for the Fourth Circuit. The
presumption may be rebutted only by evidence that the specific
pulmonary disorder being treated is neither related to, nor aggravated
by, the miner's pneumoconiosis. The proposed regulation also provides
that evidence that the miner does not have pneumoconiosis or is not
totally disabled by pneumoconiosis arising out of coal mine employment,
i.e., evidence which challenges the miner's underlying entitlement to
medical benefits, is insufficient to demonstrate that the specific
treatment for which compensation is claimed is not compensable. See
proposed Sec. 725.701(f).
Explanation of Proposed Changes
The Department proposes to revise the regulations implementing the
Black Lung Benefits Act, set forth at Chapter VI of Title 20 of the
Code of Federal Regulations. In order to make all the proposed changes
more easily understandable, the Department proposes to re-promulgate
Parts 718, 722, 725, and 726 in their entirety. This action is intended
to aid the readers of the Federal Register, and should not be construed
as inviting comments on any regulation which has not been substantively
revised. The regulations within these parts may be divided into three
categories: (1) those which will be substantively revised; (2) those to
which the Department is proposing only technical changes; and (3) those
which will not be revised at all.
Substantive revisions
The following regulations are being substantively revised:
Sec. 718.3, Sec. 718.101, Sec. 718.102, Sec. 718.103, Sec. 718.104,
Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201, Sec. 718.202,
Sec. 718.204, Sec. 718.205, Sec. 718.301, Sec. 718.307, Sec. 718.401,
Sec. 718.402, Sec. 718.403, Sec. 718.404, Appendix B to part 718,
Appendix C to Part 718, part 722 (entire), Sec. 725.1, Sec. 725.2,
Sec. 725.4, Sec. 725.101, Sec. 725.103, Sec. 725.202, Sec. 725.203,
Sec. 725.204, Sec. 725.209, Sec. 725.212, Sec. 725.213, Sec. 725.214,
Sec. 725.215, Sec. 725.219, Sec. 725.221, Sec. 725.222, Sec. 725.223,
Sec. 725.306, Sec. 725.309, Sec. 725.310, Sec. 725.311, Sec. 725.362,
Sec. 725.367, Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408,
Sec. 725.409, Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413,
Sec. 725.414, Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418,
Sec. 725.421, Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456,
Sec. 725.457, Sec. 725.458, Sec. 725.459, Sec. 725.478, Sec. 725.479,
Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494,
Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.522, Sec. 725.530,
Sec. 725.537, Sec. 725.547, Sec. 725.606, Sec. 725.608, Sec. 725.609,
Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2,
Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106,
Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.300,
Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304, Sec. 726.305,
Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309, Sec. 726.310,
Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314, Sec. 726.315,
Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319, Sec. 726.320,
and part 727 (entire). The substantive revisions to these regulations
are explained in further detail below.
Technical revisions
In addition, a number of regulations have been revised to make
certain technical changes. The proposed regulations substitute the term
``district director'' for the term ``deputy commissioner'' wherever it
appears. This change is explained in detail at 55 FR 28604-28607, July
12, 1990. The proposed regulations also add a cross-reference to
Sec. 725.4(d) to each regulation
[[Page 3341]]
which currently contains a cross-reference to part 727. Section
725.4(d) explains that although the Department is discontinuing
publication of the interim criteria set forth in 20 CFR Part 727 in the
Code of Federal Regulations, part 727 remains applicable to all claims
filed prior to April 1, 1980. In addition, certain proposed regulations
have been revised and/or renumbered in order to conform with the
current requirements of the Office of the Federal Register. The text of
Sec. 725.453A has been incorporated into Sec. 725.454 as paragraphs
(a), (b) and (c) and Sec. 725.454 has been retitled. The text of
Sec. 725.459A has been incorporated into Sec. 725.455 as paragraph (d).
Section 725.503A has been renumbered as Sec. 725.504, and
Secs. 725.504-.506 have been renumbered Secs. 725.505-.507. Section
725.701A has been renumbered Sec. 725.702, and Secs. 725.702-.707 have
been renumbered Secs. 725.703-.708. Finally, the proposed regulations
correct minor typographical errors, revise cross references to subparts
of part 725 which have been redesignated and regulations that have been
renumbered, and conform the regulations to the current practices of the
Office of the Federal Register. The Department has included technical
changes to the following regulations: Sec. 718.1, Sec. 718.2,
Sec. 718.4, Sec. 718.303, Sec. 725.102, Sec. 725.216, Sec. 725.217,
Sec. 725.301, Sec. 725.302, Sec. 725.350, Sec. 725.351, Sec. 725.360,
Sec. 725.366, Sec. 725.401, Sec. 725.402, Sec. 725.403, Sec. 725.404,
Sec. 725.419, Sec. 725.420, Sec. 725.450, Sec. 725.451, Sec. 725.453A,
Sec. 725.455, Sec. 725.459A, Sec. 725.462, Sec. 725.463, Sec. 725.465,
Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501, Sec. 725.503A,
Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507, Sec. 725.510,
Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.532, Sec. 725.533,
Sec. 725.543, Sec. 725.603, Sec. 725.604, Sec. 725.605, Sec. 725.607,
Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704, Sec. 725.705,
Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.4, and Sec. 726.203.
Pursuant to the authority set forth in 5 U.S.C. 552(b)(3)(A), which
allows federal agencies to alter ``rules of agency organization,
procedure, or practice'' without notice and comment, the Department is
not accepting comments on any of these regulations.
Unchanged Regulations
Certain regulations are merely being repromulgated without
alteration and are also not open for public comment. To the extent
appropriate, the Department's previous explanations of these
regulations, set forth in the Federal Register, see 43 FR 36772-36831,
Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain applicable. The
same is true of those regulations to which the Department is making
only technical changes. The following regulations are being
repromulgated for the convenience of readers: Sec. 718.203,
Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306,
Appendix A to Part 718, Sec. 725.3, Sec. 725.201, Sec. 725.205,
Sec. 725.206, Sec. 725.207, Sec. 725.208, Sec. 725.210, Sec. 725.211,
Sec. 725.218, Sec. 725.220, Sec. 725.224, Sec. 725.225, Sec. 725.226,
Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231,
Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305,
Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363,
Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460,
Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477,
Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511,
Sec. 725.512, Sec. 725.515, Sec. 725.520, Sec. 725.531, Sec. 725.534,
Sec. 725.535, Sec. 725.536, Sec. 725.538, Sec. 725.539, Sec. 725.540,
Sec. 725.541, Sec. 725.542, Sec. 725.544, Sec. 725.545, Sec. 725.546,
Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.1, Sec. 726.3,
Sec. 726.5, Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.103,
Sec. 726.107, Sec. 726.108, Sec. 726.112, Sec. 726.113, Sec. 726.115,
Sec. 726.201, Sec. 726.202, Sec. 726.204, Sec. 726.205, Sec. 726.206,
Sec. 726.207, Sec. 726.208, Sec. 726.209, Sec. 726.210, Sec. 726.211,
Sec. 726.212, and Sec. 726.213.
For purposes of this preamble, ``he'', ``his'', and ``him'' shall
include ``she'', ``hers'', and ``her''.
20 CFR Part 718--Standards for Determining Coal Miners' Total
Disability or Death Due to Pneumoconiosis
Subpart A--General
20 CFR 718.3. We are specifically seeking comment on Sec. 718.3.
Paragraph (c) of Sec. 718.3 was used to support the ``true doubt''
rule, which provides that an evidentiary issue will be resolved in
favor of the claimant if the probative evidence for and against the
claimant is in equipoise. The United States Supreme Court invalidated
the ``true doubt'' rule in Director, OWCP v. Greenwich Collieries, 114
S.Ct. 2251 (1994). The Court concluded that paragraph (c) failed to
define the ``true doubt'' rule effectively. It then held that the rule,
as applied by the Benefits Review Board, contravenes the Administrative
Procedure Act, 5 U.S.C. 551 et seq., by relieving the claimant of the
APA-imposed burden of proving his claim by a preponderance of the
evidence. Paragraph (c) also appeared to conflict with Sec. 718.403,
which requires the party alleging any fact to bear the burden of
proving that fact. Section 718.403 more accurately reflects the
allocation of burdens of proof under the APA, and paragraph (c) of
Sec. 718.3 should therefore be deleted.
Subpart B--Criteria for the Development of Medical Evidence
20 CFR 718.101. The current text of Sec. 718.101 should be
redesignated as paragraph (a), without further amendment, and a new
paragraph (b) should be added. The Department has consistently
maintained the position that the ``quality'' standards addressing the
administration of certain clinical tests and examinations apply to all
evidence developed by any party in connection with a claim for black
lung benefits filed after March 31, 1980. The Benefits Review Board has
rejected this position, and held that the standards govern only the
evidence developed by the Department; for all other parties, the
standards are advisory. The Board has also held that evidence cannot be
rejected by the adjudicator solely for noncompliance with the relevant
standard. See generally Gorzalka v. Big Horn Coal Co., 16 Black Lung
Rep. (MB) 1-48, 1-51 (1990) and authorities cited. Only the Third
Circuit has addressed this issue, and has agreed with the Department's
position. Director, OWCP v. Mangifest, 826 F.2d 1318 (3d Cir. 1987).
Although the existing regulations provide ample authority for making
the quality standards generally applicable (see paragraphs 718.3(a),
725.406(b), 725.456(c)), Sec. 718.101 should be amended to leave no
doubt on this point.
The Department has also consistently maintained that the part 718
quality standards apply to part 727 claims if the test was conducted
after March 31, 1980. See 20 CFR 727.203(c). The Sixth Circuit has
accepted this interpretation of the regulations. Wiley v. Consolidation
Coal Co., 915 F.2d 1076, 1080 (6th Cir. 1990). Both the Board and the
Seventh Circuit, however, have rejected the Department's position.
Coleman v. Ramey Coal Co., 18 Black Lung Rep. (MB) 1-9, 1-15 (1993);
Peabody Coal Co. v. Director, OWCP [Brinkley], 972 F.2d 880, 882 (7th
Cir. 1992). Accordingly, the proposed paragraph (b) includes a
reference to part 727 claims to clarify the applicability of the
quality standards to such claims.
The individual quality standards address the compliance requirement
in various ways. See 20 CFR 718.102 (x-ray) and 718.103 (pulmonary
function study): substantial compliance; 718.104 (medical report) and
718.105 (blood gas study): no reference; 718.106 (autopsy/biopsy):
compliance. In order to clarify
[[Page 3342]]
the criterion for compliance and place it in logical sequence in the
regulations, language should be added to Sec. 718.101 requiring
``substantial compliance'' with all the standards. This regulation
applies generally to all the quality standards, making it the rational
provision to contain the compliance requirement. A single reference in
one regulation also eliminates repetitive language from three other
regulations while making explicit the applicability of the standard to
the remaining two regulations. Finally, the phrase ``[e]xcept as
otherwise provided'' recognizes the exemption from compliance for a
deceased miner whose only X-ray is nonconforming, and autopsies or
biopsies of miners who died before March 31, 1980.
The purpose of the quality standards is to ensure the utilization
of reliable evidence in adjudicating claims. The effect of
noncompliance in terms of proving or refuting entitlement should
therefore be obvious. In order to emphasize the insufficiency of such
evidence as proof, however, proposed paragraph (b) contains an
affirmative prohibition.
20 CFR 718.102. Paragraph (e) should be reorganized in view of the
proposed paragraph 718.101(b) general compliance standard. As noted
with respect to proposed paragraph 718.101(b), codifying the
``substantial compliance'' standard in that regulation of general
applicability eliminates the need to reiterate it in each specific
quality standard. The proposed paragraph (e) also makes Sec. 718.102
consistent with Sec. 718.103 (pulmonary function studies) in presuming
compliance with the technical criteria in the Appendix. Finally, the
parenthetical citation to ``Sec. 718.208'' in the current regulation is
a typographical error; no such provision exists. Reference to
``Sec. 718.202'' is therefore substituted as a correction inasmuch as
that regulation contains definitions of Board-eligible and -certified
radiologists and ``B'' readers. See 20 CFR 718.202(a)(1)(ii) (C)-(E).
20 CFR 718.103. The last two sentences of paragraph (a) should be
removed, and the content of those sentences added to paragraph (c) to
take into account the changes to Sec. 718.101. The explanation provided
for eliminating the ``substantial compliance'' language in Sec. 718.102
applies with equal force to Sec. 718.103. Furthermore, the proposed
paragraphs 718.102(e) and 718.103(c) operate in a functionally
equivalent manner: both regulations (i) presume compliance with
technical requirements contained in the appendices; (ii) permit
rebuttal of that presumption with ``contrary'' evidence; and (iii)
recognize an exception to compliance for claims involving deceased
miners and limited evidence. Given the identity of purpose in the
current regulations, proposed paragraph 718.103(c) mirrors proposed
paragraph 718.102(c) to ensure similar interpretation and operation.
20 CFR 718.104. Section 718.104 should be amended to make clear
that the enumerated data represents the minimum information and testing
upon which a physician's report can be based if obtained in connection
with a claim for benefits. This regulation also is the logical
provision to implement guidelines for the weighing of medical reports
from a miner's treating physician. Proposed paragraph (d) describes the
relevant factors the adjudicator must consider in determining whether
to accord ``controlling weight'' to the treating physician's opinion.
The primary objective in changing the format of Sec. 718.104 is to
clarify the requirement that any physician's report developed in
connection with a claim must be based on certain enumerated information
and data in order to establish or refute entitlement. Furthermore, the
proposed regulation makes clear the necessity for utilizing at least an
x-ray and a pulmonary function test which satisfy the quality standards
as a clinical basis for a physician's pulmonary diagnosis. See
Director, OWCP v. Siwiec, 894 F.2d 635, 639 (3d Cir. 1990) (holding
that physician's report which was based on nonconforming pulmonary
function study was insufficient to prove miner was disabled). Finally,
proposed paragraph (c) parallels similar provisions in Secs. 718.102,
718.103 and 718.106, which permit the utilization of nonconforming
evidence to establish entitlement if the miner is deceased and
complying evidence is unavailable. This provision adds the requirement
that the physician must be unavailable; otherwise, in at least some
instances, the physician could be requested to address, and cure, the
deficiencies in his report.
With respect to paragraph (d), judicial precedent has long
recognized that special weight may be given the opinion of a miner's
treating physician, based on the doctor's opportunity to observe the
miner over a period of time. See, e.g., Thorn v. Itmann Coal Co., 3
F.3d 713, 717 n. 3 (4th Cir. 1993); Tussey v. Island Creek Coal Co.,
982 F.2d 1036, 1042 (6th Cir. 1993); McClendon v. Drummond Coal Co.,
861 F.2d 1512, 1514 (11th Cir. 1988); Micheli v. Director, OWCP, 846
F.2d 632, 636 (10th Cir. 1988); Schaaf v. Matthews, 574 F.2d 157, 160
(3d Cir. 1978). Such deference, however, is not an unqualified
``blanket rule'' which must be applied mechanically; the adjudicator
must still determine whether the physician's opinion is reasoned,
documented and credible before accepting it over contrary opinions.
Grizzle v. Pickands Mather and Co., 994 F.2d 1093, 1097 (4th Cir.
1993); Peabody Coal Co. v. Helms, 901 F.2d 571, 573 (7th Cir. 1990);
Halsey v. Richardson, 441 F.2d 1230, 1236 (6th Cir. 1971); Tedesco v.
Director, OWCP, 18 Black Lung Rep. (MB) 1-104, 1-105 (1994). The
proposed changes to Sec. 718.104 codify the principles embodied in both
lines of cases and draw on a similar regulation adopted by the Social
Security Administration, 20 CFR 404.1527(d)(2).
A physician's status as the miner's treating physician can provide
a legitimate basis for preferring that opinion over the reports of
doctors who have examined the miner only once or reviewed only medical
records and test data. Such status alone, however, is no substitute for
a critical analysis of both the nature and extent of the patient-doctor
relationship and the credibility of the opinion submitted by the
physician. The proposed regulation enumerates the four basic factors in
evaluating the physician's relationship with the miner: (i) nature of
relationship (pulmonary versus non-pulmonary treatment); (ii) duration
of relationship (length of time treating the miner); (iii) frequency of
treatment (number of visits over time); and (iv) extent of treatment
(types of tests and examinations conducted). Each factor will vary from
claim to claim. Consequently, no ``bright-line'' rule can be utilized
which defines when a treating physician's opinion should be given
controlling weight.
Paragraph (d)(5) underscores the requirement that, status aside,
the treating physician must provide a reasoned and documented opinion
before his conclusions can be accorded controlling weight. Status
cannot cure deficiencies in testing and explanation which would be
fatal flaws in reports from a non-treating physician. Accordingly, this
provision requires the adjudicator to consider the treating physician's
opinion on its own merits and in the context of the remainder of the
record to determine whether deference to the treating physician is
appropriate.
20 CFR 718.105. Section 718.105 should be amended to address
studies administered during the miner's terminal illness. During such
an illness, arterial blood gas studies may produce qualifying results
for reasons unrelated
[[Page 3343]]
to a chronic respiratory or pulmonary disease. In order to avoid
reliance on ``deathbed'' qualifying data, proposed paragraph (d) should
be added. This provision simply ensures the probative value of such
tests as evidence of a chronic respiratory or pulmonary impairment by
requiring the claimant to submit a physician's report attesting to the
link between the qualifying scores and the miner's chronic pulmonary
condition.
20 CFR 718.106. Paragraph (b) should be rewritten to account for
the changes to Sec. 718.101. Paragraph (b) is revised to utilize
language similar to parallel provisions in the other quality standards
provisions, which account for the general ``substantial compliance''
standard contained in the amended Sec. 718.101. The word
``noncomplying'' is substituted for ``nonconforming'' to ensure
consistent terminology in similar circumstances.
20 CFR 718.107. Section 718.107 should be amended to make explicit
the burden of proof a party bears to demonstrate that the proffered
test or procedure is ``medically acceptable.'' Section 718.107 enables
any party to submit medical evidence based on tests or procedures not
covered by the other provisions of subpart B. This regulation permits
flexibility in accommodating the use of developing or future medical
diagnostic techniques beyond the traditional tests specifically covered
by the quality standards. Proposed paragraph (b) emphasizes the
requirement that the party proffering the evidence must establish both
that the evidence is based on medically acceptable tests or procedures
and that the evidence is relevant to determining the medical issues in
a benefits claim.
Subpart C--Determining Entitlement to Benefits
20 CFR 718.201. We are specifically seeking comment on
Sec. 718.201. The regulatory definition of ``pneumoconiosis'' should be
revised to clarify the Department's position that this disease is a
progressive condition which, in some instances, may become detectable
only after cessation of coal mine employment. The definition should
also reflect the inclusive nature of the disease, such that no category
of chronic lung disease can be categorically excluded from the ambit of
the definition. Two important issues have emerged in recent litigation
involving the definition of ``pneumoconiosis'': (i) whether the disease
includes obstructive disorders; and (ii) whether pneumoconiosis is a
latent disease which can progress after the cessation of dust exposure
to the point of clinical manifestation. Heretofore, the Department has
consistently taken the position in litigation and rulemaking that no
specific lung disease could be categorically excluded from the
definition of ``pneumoconiosis''; thus, any disease which could be
medically linked to occupational dust exposure in a particular case
could be pneumoconiosis. See 43 FR 36825, Aug. 18, 1978, Sec. 727.202
Discussion and changes (a); 45 FR 13685, Feb. 29, 1980, Sec. 718.201
Discussion and changes (a); Barber v. Director, OWCP, 43 F.3d 899 (4th
Cir. 1995). The Department has also argued that pneumoconiosis can
progress absent exacerbating dust exposure, and may require many years
to reach the point of detection. The Department has been largely
successful in litigation involving these issues. The prevalence of the
issues and the availability of supportive medical research, however,
warrant making explicit the current regulatory definition to codify
both positions.
Scope of Definition
The statutory definition of ``pneumoconiosis,'' as implemented by
Sec. 718.201, encompasses any chronic respiratory or pulmonary disease
or impairment caused by the inhalation of coal mine dust. See 30 U.S.C.
902(b). Thus, any such disease or impairment which can be linked to
occupational dust exposure by credible medical evidence may be
considered ``pneumoconiosis'' for purposes of that particular claim. As
such, the Act recognizes a far broader concept of the disease than does
the medical community; the latter confines ``coal workers'
pneumoconiosis'' to the pathologic reaction of lung tissue to dust
inhalation, resulting in characteristic patterns or markings on chest
X-rays. See, e.g., ``The Merck Manual of Diagnosis and Therapy'' 681
(15th ed. 1987); ``National Institute for Occupational Safety and
Health, Occupational Exposure to Respirable Coal Mine Dust'' Sec. 4.1.2
(1995); Freeman United Coal Mine Co. v. Director, OWCP, 957 F.2d 302,
303 (7th Cir. 1992). Amending Sec. 718.201 to acknowledge the
distinction between the medical and legal definitions emphasizes the
inclusive nature of ``pneumoconiosis'' for purposes of the black lung
benefits program.
In the same vein, adding the phrase ``any chronic restrictive or
obstructive pulmonary disease'' will foreclose litigation attempting to
narrow the definition on a claim-by-claim basis with medical opinions
which exclude obstructive lung disorders from occupationally-related
pathologies. The NIOSH study on occupational dust exposure contains
ample medical authority suggesting at least some relationship between
coal mine dust exposure and the development of chronic obstructive lung
disease. See ``National Institute for Occupational Safety and Health,
Occupational Exposure to Respirable Coal Mine Dust'' Sec. 4.2.2 et seq.
Thus, leaving the issue to resolution in litigation risks inconsistent
results; indeed, one court has invited such inconsistencies:
The Act and its regulations define `pneumoconiosis' broadly and
do not establish that dust exposure from coal mine work can
necessarily cause obstructive pulmonary disease or impairment. * * *
Rather, the facts and medical opinions in each specific case answer
this question.
Blakley v. Amax Coal Co., 54 F.3d 1313, 1321 (7th Cir. 1995); compare
Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995)
(stating that ``[c]hronic obstructive lung disease thus is encompassed
within the definition of pneumoconiosis for purposes of entitlement to
Black Lung benefits[,]'' and rejecting medical opinions based on
``erroneous assumptions'' to the contrary); Eagle v. Armco, Inc., 943
F.2d 509, 511 n. 2 (4th Cir. 1991) (describing as ``bizarre'' a medical
opinion which rejected occupational dust exposure as possible cause of
chronic obstructive lung disease).
Progressive Nature
The Department has long maintained the view that simple
pneumoconiosis is an irreversible disease, which may cause progressive
deterioration of the lung even after the miner has ceased inhaling coal
mine dust. Many court and Board decisions reflect acceptance of this
characterization of the disease's pathology. See, e.g., Mullins Coal
Co. v. Director, OWCP, 484 U.S. 135, 151 (1987); LaBelle Processing Co.
v. Swarrow, 72 F.3d 308, 314-315 (3d Cir. 1995); Adkins v. Director,
OWCP, 958 F.2d 49, 51 (4th Cir. 1992); Lukman v. Director, OWCP, 896
F.2d 1248, 1253 (10th Cir. 1990); Orange v. Island Creek Coal Co., 786
F.2d 724, 727 (6th Cir. 1986); Consolidation Coal Co. v. Chubb, 741
F.2d 968, 973 (7th Cir. 1984); Elkins v. Beth-Elkhorn Coal Co., 2 Black
Lung Rep. (MB) 1-683, 1-686 (1979). But see Zeigler Coal Co. v. Lemon,
23 F.3d 1235, 1238 (7th Cir. 1994) (chastising an administrative law
judge for assuming that pneumoconiosis is progressive without any
medical evidence in the record to support the assumption). Indeed, the
propensity for progressive deterioration provides the legal
justification for permitting additional or
[[Page 3344]]
subsequent claims, even for miners who do not return to coal mining
after the first claim's denial. See 43 FR 36785, Aug. 18, 1978,
Sec. 725.309 Discussion and changes (a) (``The Department agrees that a
miner whose claim has once been finally denied * * * should be allowed
to file a new claim on the grounds of a progression to total
disability.''). The fact that the miner was unable to prove even the
existence of the disease in his initial claim is no bar to a later
claim since the disease may not have progressed to the point of
clinical manifestation when he filed the application.
Current medical science supports the Department's position that
pneumoconiosis may progress. In P. Francois et al., ``Pneumoconiosis of
Delayed Apparition: Large Scaled Screening in a Population of Retired
Coal Miners of the Northern Coal Fields of France,'' in Seventh
International Pneumoconiosis Conference, Abstracts of Communications
979 (1988), 741 new cases of pneumoconiosis (out of 3070 miners, or
24%) were discovered in miners who did not have pneumoconiosis at
retirement and who had not been exposed to dust for at least 3 years.
Of these 741 new cases, only 10% had large opacities (complicated
pneumoconiosis), 69% had category 1 simple pneumoconiosis, and 21% had
category 2 simple pneumoconiosis. Indeed, the authors specifically
recite one example of a 66 year old ex-miner who had retired 24 years
earlier after 25 years of dust exposure. The x-ray at retirement showed
no evidence of pneumoconiosis, but the one taken 20 years later showed
obvious pneumoconiosis. Thus, the authors write:
The coalworker's pneumoconiosis may appear a long time after the
exposure to nocive [harmful] dust has ceased. This is a well
established fact. What we don't know is the frequency of such forms
of pneumoconiosis of long delayed apparition.
Francois at p. 979.
An earlier study from France provides additional support. In David
V. Bates et al., ``A Longitudinal Study of Pulmonary Function in Coal
Miners in Lorraine, France'', 8 Am. J. Ind. Med. 21 (1985), the authors
observed continued and accelerated rates of decline in lung function
after retirement from mining in both smokers and nonsmokers. The
authors suggest that pneumoconiosis at all stages progresses, based on
``dust loading in the lung, and once this has reached some critical
level, it is not much affected by removal from exposure.'' Bates at p.
29. The study includes several graphs depicting ``radiologic category
at retirement and 10 years later.'' Bates at p. 27. These graphs
demonstrate a decrease in the percentage of miners with normal or 0/1
readings, and an increase in the percentage of miners with simple
pneumoconiosis (category 1/2) as well as complicated pneumoconiosis. By
way of explanation, Dr. Bates identified miners with normal or 0/1
readings as ``o-p;'' miners with 1/2 were ``m, n, A, B,'' and miners
with complicated pneumoconiosis were delineated as ``C.'' Bates at p.
22. An x-ray showing opacity perfusion of 0/1 is considered negative
for pneumoconiosis under the regulations. 20 CFR 718.102(b). Thus, the
data clearly depicts a progression from normal, or negative, x-rays to
positive x-rays, with the initial appearance of simple pneumoconiosis
occurring some 10 years after the miners' last dust exposure.
Other studies and treatises inferentially document, or otherwise
support, the progressivity of simple pneumoconiosis. See, Helen Dimich-
Ward & David V. Bates, ``Reanalysis of a Longitudinal Study of
Pulmonary Function in Coal Miners in Lorraine, France,'' 25 Am. J. Ind.
Med. 613, 621 (1994) (lung function loss and disability may progress
after exposure ceases); Cockcroft et al., ``Prevalence and Relation to
Underground Exposure of Radiological Irregular Opacities in South Wales
Coal Workers with Pneumoconiosis,'' Br. J. Ind. Med. 40: 169, 172
(1983) (increase in irregular opacities without further dust exposure
indicates continued tissue reaction to inhaled dust and progression of
the disease after exposure, although increase in overall profusion of
opacities not found); 4A Roscoe N. Gray, ``Attorneys' Textbook Of
Medicine,'' para. 205.71 (3d ed. 1982) (while only method of preventing
progression of pneumoconiosis is removal from dusty environment, with
some pneumoconioses progression will continue even after exposure
ceases); ``The Merck Manual of Diagnosis and Therapy'' 704 (16th ed.
1992) (explaining that complicated pneumoconiosis may develop and
progress without further dust exposure); David V. Bates, ``Respiratory
Function in Disease'' 303 (3d ed. 1989) (silicosis commonly progresses
after dust exposure ceases). The definition of ``pneumoconiosis''
includes silicosis. 20 CFR 718.202. Moreover, complicated
pneumoconiosis normally develops on a background of category 2 or 3
simple pneumoconiosis. See e.g. ``The Merck Manual of Diagnosis and
Therapy'' at p. 704. Thus, the development from simple to complicated
pneumoconiosis without further dust exposure reveals progression of the
disease.
In view of the ample scientific support for the Department's
interpretation of the scope and nature of the definition of
``pneumoconiosis,'' Sec. 718.201 should reflect that interpretation
with more specificity.
20 CFR 718.202. Paragraph (a)(2) should be amended to make clear
that a finding of anthracotic pigment in a biopsy procedure, without
more, is insufficient to establish the presence of pneumoconiosis. The
current regulation imposes this limitation only with respect to an
autopsy, but there is no reason to treat these two types of evidence
differently.
20 CFR 718.204. The proposed changes to Sec. 718.204 codify several
of the positions which the Department has taken in litigation to
clarify the meaning of ``total disability.'' The regulation should
explicitly reflect the Department's view that ``total disability''
means a totally disabling respiratory or pulmonary impairment. The
proposed changes also provide guidance for establishing the degree to
which pneumoconiosis must contribute to the miner's disabling
impairment; to date, the quantification of disability contribution has
been articulated solely through appellate decisions. In addition, the
proposed changes make clear that a miner who is totally disabled by a
compensable respiratory condition is entitled to black lung benefits
regardless of any concurrent disability by non-respiratory impairments
or diseases. Finally, the Department proposes to revise the regulation
to separate disability and disability causation criteria, unify the
various provisions dealing with lay evidence, and delete paragraph (f),
which is unnecessary in view of corresponding material in 20 CFR
725.504.
Two significant changes have been made to the concept of ``total
disability.'' First, paragraph (a) makes clear that disabling
nonrespiratory conditions are irrelevant to determining whether a miner
is, or was, totally disabled by pneumoconiosis. This change makes clear
the Department's disagreement with the holding in Peabody Coal Co. v.
Vigna, 22 F.3d 1388 (7th Cir. 1994). In that case, the miner suffered a
disabling stroke in 1971, and thereafter applied for benefits under
part 727. He invoked the interim presumption with qualifying pulmonary
function evidence from 1979. The Seventh Circuit held, however, that
the operator rebutted the presumption because the miner's disability
was caused by the stroke, which was
[[Page 3345]]
unrelated to coal mine dust exposure and occurred before the qualifying
ventilatory study. Compare Youghiogheny and Ohio Coal Co. v. McAngues,
996 F.2d 130 (6th Cir. 1993), cert. den. 114 S. Ct. 683 (1994) (holding
that miner's disabling injuries from automobile accident were
irrelevant to determining whether he was totally disabled by
pneumoconiosis). Although Vigna was decided under part 727, the
proposed changes to paragraph 718.204(a) are designed to ensure that
the Seventh Circuit's view will not be applied outside that circuit to
cases arising under part 718.
The proposed paragraph (a) does recognize one exception to the
irrelevancy of disabling nonrespiratory conditions in determining
whether the miner is totally disabled by pneumoconiosis. Such
conditions or diseases are relevant if they produce a chronic
respiratory or pulmonary impairment. Some cardiac and neurological
diseases, for example, may affect the respiratory musculature in such a
way as to impair the individual's ability to breathe without actually
affecting the lungs. See, e.g., Panco v. Jeddo-Highland Coal Co., 5
Black Lung Rep. 1-37 (1982) (concerning respiratory impairment from
amyotrophic lateral sclerosis, a neurological disease); Maynard v.
Central Coal Co., 2 Black Lung Rep. 1-985 (1980) (concerning
respiratory impairment from heart disease); Skursha v. U.S. Steel
Corp., 2 Black Lung Rep. 1-518 (1980) (same). Similarly, a traumatic
accident such as an injury to the spinal column may affect breathing
but not the lungs. The effect of the disease or trauma, its
relationship to the miner's ability to breathe, and the interplay with
the miner's pneumoconiosis, all determine the contributing causes of
the miner's disability.
The second change involves the definition of ``total disability''.
The proposed change to paragraph (b)(1) expresses what the Department
has always maintained: that the ``disability'' which the miner suffers
is a totally disabling respiratory or pulmonary impairment, and not
``whole person'' disability. Although the two courts of appeals to
consider the issue have accepted the Department's position, clarifying
the definition will hopefully end litigation on this issue. See Beatty
v. Danri Corp. & Triangle Enterprises, 49 F.3d 993 (3d Cir. 1995);
Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4th Cir. 1994).
Another significant change is the addition of criteria defining
``disability causation,'' or the degree to which pneumoconiosis must
contribute to the miner's disability. Several courts have addressed the
issue, and formulated various standards: Robinson v. Pickands Mather &
Co./Leslie Coal Co., 914 F.2d 35, 38 (4th Cir. 1990) (``contributing
cause''); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir. 1990)
(necessary though not sufficient cause); Lollar v. Alabama By-Products,
893 F.2d 1258, 1265 (11th Cir. 1990) (``substantial contributing
factor''); Adams v. Director, OWCP, 886 F.2d 818, 825 (6th Cir. 1989)
(disability ``due at least in part'' to pneumoconiosis); Bonessa v.
United States Steel Corp., 884 F.2d 726, 733 (3d Cir. 1989)
(``substantial contributor''); Mangus v. Director, OWCP, 882 F.2d 1527,
1531 (10th Cir. 1989) (at least a ``contributing cause''). Few, if any,
practical differences exist in the various expressions of the
contribution standard.
The Department has concluded that a single standard should be
articulated to eliminate needless confusion and litigation over the
relationship between a miner's pneumoconiosis and his disability. The
Department has selected the ``substantially contributing cause''
language because it ensures a tangible and actual contribution; a more
demanding standard would be too harsh, especially when many miners
suffer from a multiplicity of respiratory problems. Moreover, the
``substantially contributing cause'' standard mirrors the criteria for
proving that pneumoconiosis contributed to the miner's death. See 20
CFR 718.205(c). The U.S. Court of Appeals for the Third Circuit found
the contribution standard for death a persuasive basis for interpreting
the disability standard: ``We perceive no reason why the phrase 'total
disability due to pneumoconiosis' should not track the phrase `death
due to pneumoconiosis.''' Bonessa, 884 F.2d at 733.
Proposed paragraph (c)(1) also defines disability causation in
terms of worsening a totally disabling respiratory or pulmonary
condition which is itself wholly caused by non-coal mine exposures.
Thus, a miner whose pneumoconiosis further damages his lungs may
establish the necessary causal link even if nonoccupational exposure is
a self-sufficient cause of the respiratory disability. The proposed
language reflects the Department's disagreement with the result reached
by the U.S. Court of Appeals for the Fourth Circuit in Dehue Coal Co.
v. Ballard, 65 F.3d 1189 (4th Cir. 1995) (holding that a miner who was
totally disabled by lung cancer was not entitled to benefits because
his pneumoconiosis could not, by definition, contribute to the
disability).
The remaining changes are structural or editorial. Paragraph (c)(5)
has been changed to paragraph (d) (i) and (ii); the remaining
provisions addressing the use of lay evidence have been moved into
paragraph (d) given the commonality of their purpose: establishing
entitlement through lay evidence. The last sentence of current
paragraph (c)(5) makes clear that proving disability through clinical
tests or physicians' reports does not necessarily prove that
pneumoconiosis caused the disability. This provision therefore
underscores the difference between disability and disability causation
as separate elements of entitlement. This point is sufficiently
important to warrant placement in a separate paragraph as proposed
paragraph (c)(2). Finally, current paragraph (f) is deleted because it
simply duplicates 20 CFR 725.504 to the extent that both provisions
preclude a working miner from receiving benefits unless the award is
based on a finding of complicated pneumoconiosis.
20 CFR 718.205. The Department has taken the position that
pneumoconiosis causes the miner's death if the disease is either the
actual cause of death or hastens death to an appreciable extent. This
interpretation of the phrase ``death due to pneumoconiosis'' should be
made explicit in the regulation. Under the 1981 amendments to the BLBA,
a deceased miner's survivor who filed a claim on or after January 1,
1982, is eligible for benefits only if pneumoconiosis caused, or
contributed to, the miner's death. The Department added paragraph (c)
to Sec. 718.205 to implement congressional intent that pneumoconiosis
must play a role in the miner's death in order to entitle a survivor to
benefits. Based on the legislative history of the 1981 amendments, the
Department concluded that the disease must be at least a
``substantially contributing cause'' of the miner's death. See 48 FR
24276--24277, May 31, 1983, Sec. 718.205 Discussion and changes (h)-
(n). In order to give practical meaning to that phrase, the Department
has consistently argued in litigation that the medical evidence must at
least prove that the miner's pneumoconiosis actually hastened his
death. Four courts of appeals have deferred to the agency's
interpretation of the regulation. Brown v. Rock Creek Mining Co., 996
F.2d 812, 816 (6th Cir. 1993); Peabody Coal Co. v. Director, OWCP, 972
F.2d 178, 183 (7th Cir. 1992); Shuff v. Cedar Creek Coal Co., 967 F.2d
977, 980 (4th Cir. 1992), cert. den. 113 S.Ct. 969 (1993); Lukosevicz
v. Director, OWCP, 888 F.3d 1001, 1006
[[Page 3346]]
(3d Cir. 1989). The Benefits Review Board has refused to adopt the
Department's position, but has not articulated an alternative standard.
See, e.g., Tackett v. Armco, Inc., 16 Black Lung Rep. (MB) 1-88, 1-93
(1992), vacated on remand 17 Black Lung Rep. (MB) 1-103, 1-104 (1993).
In order to ensure consistent application of a single legal standard,
paragraph (c) of Sec. 718.205 should be amended by adding proposed
paragraph (c)(5), which codifies the Department's views.
Subpart D--Presumptions Applicable to Eligibility Determinations
20 CFR 718.301. Paragraph (b) should be removed because a new
definition of ``year'' is added to 20 CFR 725.101(a). Paragraph (a) of
Sec. 718.301 should be amended to make reference to proposed
Sec. 725.101(a)(32) and its requirements. Section 718.301 is one of two
regulations which currently define ``year'' for determining the length
of a miner's occupational history; the other regulation is 20 CFR
725.493(b) (identifying responsible operator). The Department has
concluded that a single regulatory definition with program-wide
application should replace the two current regulations. Determining the
length of a miner's occupational history is the same inquiry for
establishing eligibility for presumptions as for identifying a
responsible operator, and a single standard should apply in both cases.
20 CFR 718.307. Remove 20 CFR 718.307 (a) and (b) and add the
contents of Sec. 718.307(a) to 20 CFR 725.103. Paragraph (a) contains
material which concerns any claim filed under the BLBA, and not just
claims governed by the part 718 medical criteria. Accordingly, the
contents of paragraph (a) will be removed from part 718 and placed in
Sec. 725.103. See proposed Sec. 725.103. Paragraph (b) effectively
duplicates new proposed Sec. 725.103, which more broadly describes the
burden of proof. This language should therefore be removed.
Subpart E--Miscellaneous Provisions
20 CFR 718.401. Remove Sec. 718.401 because it duplicates proposed
Sec. 725.406. Current Sec. 718.401 recognizes each miner's statutory
right to a complete pulmonary evaluation at the Department's expense.
See 30 U.S.C. 923(b). This regulation also authorizes both the miner
and the district director to develop additional medical evidence.
Section 718.401 duplicates material in the cross-referenced
regulations, 20 CFR Secs. -725.405 and 725.406; the part 725
regulations have program-wide applicability. Consequently, no need
exists for including this regulation in part 718.
20 CFR 718.402. Remove the first sentence of Sec. 718.402 and add
the remainder of this provision to proposed Sec. 725.414(a)(3)(iii).
Section 718.402 describes the consequences of a claimant's failure to
cooperate in the development of medical evidence needed to adjudicate
the claim. This provision duplicates the substance of proposed
Sec. 725.414(a)(3)(iii), which deals with a claimant's unreasonable
refusal to submit to medical examinations and testing. Section 718.402
also penalizes the claimant who refuses to provide a complete health
history or permit access to medical records. This aspect of the
regulation will be added to proposed Sec. 725.414. Given the
overlapping purposes of the two regulations, Sec. 718.402 should be
removed from part 718 in favor of proposed Sec. 725.414, which has
program-wide applicability.
20 CFR 718.403. Remove 20 CFR 718.403 from part 718 and add to part
725. Section 718.403 codifies the burden of proof imposed on any party
alleging any fact in support of its position under part 718. The
parties to a claim, however, are required to prove a variety of facts
under part 725 which also bear on entitlement issues, e.g., status as a
miner (Sec. 725.202); dependency and relationship (Secs. 725.204-
725.228); liability as a responsible operator (subpart G); and
entitlement to medical benefits (subpart J). Part 725 does not contain
a counterpart to Sec. 718.403. Accordingly, a single provision
generally allocating the parties' burdens of proof under the BLBA
logically should be placed in part 725, the regulations with program-
wide applicability. See proposed Sec. 725.103.
20 CFR 718.404. Remove 20 CFR 718.404 from part 718 and move to
part 725. Section 718.404(a) makes explicit a miner's obligation to
inform the Department and the responsible operator, if any, if he
resumes work in a coal mine or comparable and gainful work. A return to
such work requires the termination of benefits unless the miner's award
is based on complicated pneumoconiosis. See 20 CFR 725.504(c).
Paragraph (b) reiterates the Department's authority to reopen a finally
approved claim during the lifetime of the miner and develop medical
evidence if the particular circumstances so warrant. Both provisions
are more logically placed in part 725 as regulations of program-wide
applicability. See proposed Sec. 725.203 (c) and (d).
Appendix B to Part 718
Appendix B to Part 718, 2(ii). The technical requirements for the
administration of pulmonary function studies should be amended to
preclude taking the initial inspiration from the open air. The quality
standards currently permit an individual performing a pulmonary
function study to take the initial inspiration from either the open air
or the testing machine. The proposed regulation eliminates this choice.
Open air inspiration is not recorded on the spirogram, which documents
the performance of the test. Consequently, the validity of such an
initial inspiration cannot be independently verified by a reviewing
physician. Because less than optimum inspiration will produce a ``false
low'' result, such tests may yield erroneously abnormal values. The
open-air inspiration option therefore must be eliminated in order to
ensure that the validity of every pulmonary function study can be
independently ascertained.
The Department does not propose to change Tables B1-B6 in Appendix
B, which are used to evaluate the results of pulmonary function tests
(see proposed Sec. 718.204(b)(2)(i)). Accordingly, the tables will not
be republished in either the proposed or final versions of this rule in
the Federal Register. The tables will continue to be published as part
of Appendix B to part 718 in the Code of Federal Regulations once this
rule becomes final, however. Parties interested in reviewing the tables
may consult earlier editions of the Code of Federal Regulations or the
Federal Register in which the tables were originally promulgated, 45 FR
13699-13710, Feb. 29, 1980.
Appendix C to Part 718. Appendix C should be amended to specify
that arterial blood gas studies should not be conducted during, or
shortly after, a miner's acute respiratory illness. Such studies are
likely to produce spurious values which are not indicative of the
miner's true condition.
20 CFR Part 722--Criteria for Determining Whether State Workers'
Compensation Laws Provide Adequate Coverage for Pneumoconiosis and
Listing of Approved State Laws
Section 421 of the Black Lung Benefits Act requires the Secretary
of Labor to publish in the Federal Register a list of all states whose
workers' compensation laws provide ``adequate coverage'' for
occupational pneumoconiosis. 30 U.S.C. 931(a). The purpose of this
provision was to allow states to assume responsibility for providing
compensation to former coal
[[Page 3347]]
miners who were totally disabled due to pneumoconiosis and to their
dependent survivors in the event of the miner's death due to
pneumoconiosis. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8-9
(1976). The Secretary's certification that a state law provides
adequate coverage prevents any claim for benefits arising in that state
from being adjudicated under the Black Lung Benefits Act. To date, no
state law has been approved.
The Act provides that a state may be included on the Secretary's
list only if its provisions governing benefit amounts, entitlement
standards, statute of limitations, and prior and successor operator
liability are ``substantially equivalent'' to those contained in the
Act. 30 U.S.C. 931(b)(2). In addition, the Secretary may promulgate
additional regulations to ensure adequate compensation for total
disability or death due to pneumoconiosis. 30 U.S.C. 931(b)(2)(F). The
Secretary first promulgated regulations under this authority on March
12, 1971, and amended those regulations on March 30, 1973 in light of
changes to the Longshore and Harbor Workers' Compensation Act in 1972.
38 FR 8238, March 30, 1973. These regulations, codified at 20 CFR part
722, have not been amended since 1973. In light of the subsequent
statutory changes made by the Black Lung Benefits Reform Act of 1977
and the Black Lung Benefits Amendments of 1981, the current regulations
are obsolete.
The Department has recently concluded a review of all of the
regulations implementing the Act, and has determined that the continued
publication of these criteria in the Code of Federal Regulations is no
longer required. Accordingly, rather than amend the regulations to
reflect the current law, the Department intends to simply delete the
specific criteria and replace them with a general statement that in the
future, upon application of any state, the Department will review the
state's workers' compensation law in light of the current Act to
determine whether the state law provides adequate coverage. Guided by
the criteria set forth in 30 U.S.C. 931(b)(2), the Department will
approve such a state law only if it guarantees at least the same
compensation, to the same individuals, as is provided by the Act. The
Act requires that if the Department approves any state laws, it publish
a list of the affected states in the Federal Register, 30 U.S.C.
931(b)(1).
Finally, the revised regulations substitute the gender neutral term
``workers' compensation laws'' for the term ``workmen's compensation
laws,'' used in the statute. No substantive alteration in the statutory
term is intended.
20 CFR Part 725--Claims for Benefits Under Part C of Title IV of the
Federal Mine Safety and Health Act, as Amended
Subpart A--General
20 CFR 725.1. Section 725.1 provides a broad overview of the
various parts of the Black Lung Benefits Act (BLBA), the amendments
thereto, and the incorporation of the Longshore and Harbor Workers'
Compensation Act (LHWCA). The Department proposes to amend this
regulation to include a comparable reference to the Social Security
Act, 42 U.S.C. 301 et seq., provisions of which are also incorporated
into Parts A, B and C of the BLBA. The BLBA is actually three statutes
in one. The Act itself is subchapter IV of the Mine Safety and Health
Act, chapter 30 of the United States Code. Part C of the Act, which the
Department administers, also incorporates many provisions of the LHWCA,
33 U.S.C. 901 et seq. Congress authorized the Department to vary the
terms of the incorporated LHWCA provisions by regulation, and the
Department has done so when the special requirements of the black lung
benefits program dictated the variance. Congress also incorporated
parts of the Social Security Act into Parts A and B of the BLBA.
Congress once again authorized the Department to adopt and modify the
Part B provisions ``to the extent appropriate'' for use in the
administration of Part C. Accordingly, Sec. 725.1 should be amended to
include a brief description of the Social Security Act incorporation
comparable to the present discussion of the LHWCA incorporation.
20 CFR 725.2. For an explanation of the changes to paragraph (b),
see the explanation of the changes to Sec. 725.4. Paragraph (c) should
be added to explain the applicability of these regulatory revisions to
pending claims and to claims filed after the effective date of the
revised regulations. The Department intends that the proposed revisions
announced in this Notice will apply to the adjudication of all claims
for benefits under the Black Lung Benefits Act pending with the
Department on the date these revisions go into effect, to the extent
that such application is consistent with the Department's authority
under the Black Lung Benefits Act and with the efficient administration
of the program. The Department considers a claim to be pending if the
claim has not yet been finally denied, or less than one year has passed
since the claim was finally denied. In addition, all of the proposed
regulations will apply to any claim filed after the regulations become
final.
The Supreme Court has held that a statutory grant of legislative
rulemaking authority to an agency does not confer the power to issue
retroactive rules unless Congress expressly provides such power. Bowen
v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). The Black
Lung Benefits Act does not contain such an express grant. Accordingly,
the Department's ability to issue rules of retroactive application is
circumscribed.
Determining whether a rule is one of retroactive application,
however, is often difficult. In Landgraf v. USI Film Products, 114 S.
Ct. 1483 (1994), the Court adopted the definition set forth by Justice
Story in Society for Propagation of the Gospel v. Wheeler, 22 F.Cas.
756 (No. 13,156) (CCDNH 1814):
[E]very statute, which takes away or impairs vested rights
acquired under existing law, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to transactions
or considerations already past, must be deemed retrospective. * * *
114 S. Ct. at 1499. The Court observed, however, that ``[a] statute
does not operate `retrospectively' merely because it is applied in a
case arising from conduct antedating the statute's enactment, or upsets
expectations based in prior law.'' Ibid. (citation omitted).
One example of an attempt to regulate retroactively was the
Department of Health and Human Services regulation at issue in
Georgetown University Hospital. In 1983, the U.S. District Court for
the District of Columbia had invalidated a 1981 HHS regulation
governing hospital reimbursement for failure to provide notice and an
opportunity to comment. In 1984, HHS reissued the regulation following
notice and comment, and attempted to make it retroactive to 1981. The
Supreme Court invalidated the second regulation as an unauthorized
attempt to promulgate a retroactive regulation. At the other end of the
spectrum are procedural changes. As the Supreme Court noted in
Landgraf, ``[c]hanges in procedural rules may often be applied in suits
arising before their enactment without raising concerns about
retroactivity.'' 114 S. Ct. at 1502.
For purposes of retroactivity, the revisions to the Department's
regulations implementing the Black Lung Benefits Act, 30 U.S.C. 901 et
seq., may be divided into two groups. The first, consisting of
revisions to part 726, have no effect on the adjudication of
[[Page 3348]]
claims filed under the Act. Those revisions, which establish procedures
for enforcing the general obligation of coal mine operators to secure
the payment of benefits under the Act, will be made effective
immediately upon publication of the final rule, and will govern all
subsequent penalty assessments.
The Department also proposes to revise various provisions in part
726 that address the requirements imposed on coal mine operators who
seek the Department's authority to self-insure their liability. These
revisions merely clarify the Department's existing interpretation of
the Act. Accordingly, these regulations may apply to the evaluation of
past conduct. In Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993),
the court held that ``[a] rule simply clarifying an unsettled or
confusing area of the law * * * does not change the law, but restates
what the law according to the agency is and has always been: 'It is no
more retroactive in its operation than is a judicial determination
construing and applying a statute to the case.' Manhattan General
Equip. Co. v. Commissioner, 297 U.S. 129, 135 (1936).''
The second, and largest, group of revisions are those amending
Parts 718 and 725, which govern the adjudication of claims for benefits
filed by miners and their survivors, as well as the payment of benefits
in approved claims. A number of the revisions alter the procedures to
be used in adjudication, including those related to processing of
claims by the district director, the adjudication of claims before the
Office of Administrative Law Judges, responsible operator issues, and
subsequent claims. These changes, however, significantly alter the
parties' obligations and expectations, for example, by limiting
evidence, creating presumptions, and establishing burdens of proof.
Accordingly, despite the Department's authority under Georgetown
University Hospital and Landgraf to issue procedural rules that take
effect immediately, the Department proposes to apply the revised
versions of the regulations governing those topics only to claims filed
after the effective date of the amendments. Because the remaining
revisions merely clarify the Department's interpretation of the current
Act and regulations, the Department intends to apply them to all claims
pending with the Department, and to the payment of all benefits that
become due and payable, or that remain unpaid, after the effective date
of these revisions.
20 CFR 725.4(d). In 1978, Congress required the Department of Labor
to promulgate interim entitlement criteria that were ``no more
restrictive'' than criteria used to adjudicate claims that had been
filed with the Social Security Administration under Part B of the Black
Lung Benefits Act. These interim criteria were to be used until the
Department could develop permanent criteria. The interim part 727
regulations were published at 43 FR 36818, Aug. 18, 1978. Because the
Department's permanent part 718 criteria took effect on April 1, 1980,
see 20 CFR 718.2, the part 727 regulations apply only to claims filed
before that date. The Department estimates that several hundred part
727 claims remain pending in various stages of adjudication. Because
the parties to these claims are quite familiar with the standards for
establishing eligibility under part 727, and no new claims will be
adjudicated under these standards, the Department intends to
discontinue the annual publication of part 727 in the Code of Federal
Regulations. Those standards will remain in effect for all claims to
which they apply. Parties interested in reviewing part 727 may consult
earlier editions of the Code of Federal Regulations or the Federal
Register in which the regulations were originally published.
20 CFR 725.101. The terms defined by Sec. 725.101(a)(4) et seq.
have been put in alphabetical order to assist the reader in finding the
appropriate definitions. The explanations below refer to the renumbered
paragraphs.
20 CFR 725.101(a)(6). Benefits. The regulation should be amended to
make clear that the initial pulmonary evaluation obtained by the
Department pursuant to 30 U.S.C. 923(b) is considered a ``benefit''
paid by the Trust Fund or the operator on the claimant's behalf. The
clinical testing and medical examination required by Sec. 413(b) of the
BLBA confer a ``benefit'' on the miner to the extent that the Trust
Fund pays for the miner's opportunity to substantiate his claim.
20 CFR 725.101(a)(13), Coal Preparation; (a)(19), Miner or Coal
Miner. The regulation should be amended to reflect the Department's
position that coke oven workers are not covered by the BLBA. The
Department has long taken the position that the preparation activities
undertaken at coke ovens are not covered by the BLBA. This position
reflects Congress' understanding of the scope of coverage intended by
the statutory definition of ``miner.'' 30 U.S.C. 902(d). See S.Rep. No.
209, 95th Cong., 1st Sess. 21 (May 16, 1977) (``Nor does [the
definition] include such individuals not directly related to the
production of coal such as coke oven workers.''); 123 Congressional
Record 24,236 (1977) (Sen. Randolph: ``* * * coke oven workers are not
included in the definition.''). See also Fox v. Director, OWCP, 889
F.2d 1037 (11th Cir. 1989); Sexton v. Matthews, 538 F.2d 88 (4th Cir.
1976). This clarifying language ensures that the definitions of ``coal
preparation'' and ``miner or coal miner'' do not encompass activities
involving the commercial production of coke, which is outside the
extraction and transportation processes.
20 CFR 725.101(a)(16). District Director. The proposed change
merely conforms the regulation to current administrative practice, and
ensures that any action taken by, or in the name of, a district
director shall be given full credit as the action of a deputy
commissioner.
20 CFR 725.101(a)(17). Division or DCMWC. The proposed change
specifies the agency within the Department which contains the Office of
Workers' Compensation Programs and the Division of Coal Mine Workers'
Compensation.
20 CFR 725.101(a)(31). Workers' Compensation Law. This definition
should be amended to make clear that certain benefits paid from a
state's general revenues are not workers' compensation payments for
purposes of the BLBA. The BLBA requires the Department to offset a
claimant's federal benefits by any benefits received from a state
pursuant to a workers' compensation law for disability or death due to
pneumoconiosis. 30 U.S.C. 932(g). Since the Act's inception, the
Department has considered payments made to disabled miners by a state
from general revenues to be excluded from benefits afforded by
``workers' compensation laws.'' Both the Third Circuit and the Benefits
Review Board, however, have rejected the Department's position.
O'Brockta v. Eastern Associated Coal Co., 18 Black Lung Rep. 1-72
(1994), aff'd sub nom. Director, OWCP v. Eastern Associated Coal Co.,
54 F.3d 141 (3d Cir. 1995). The Board held that Sec. 932(g) clearly
refers to ``workers' compensation law'' without regard to the source of
funding for the payments. The Third Circuit rejected this reasoning but
agreed that the Department's position was wrong. The Court held that
Sec. 932(g) is ambiguous, but that the Department's policy
impermissibly implies limitations on current Sec. 725.101(a)(4) which
are inconsistent with the unequivocal language of the regulation. The
Court suggested that the Department amend
[[Page 3349]]
the regulation to codify its policy. The proposed regulation makes
clear the Department's longstanding policy that payments made from a
state's general revenues are not workers' compensation benefits subject
to offset under the Act.
20 CFR 725.101(a)(32). The BLBA does not define a ``year'' for
purposes of computing the length of a miner's occupational history. In
1978 and 1980, the Department promulgated regulations which adopted the
current 125-day rule. 20 CFR 725.493(b), 718.301(b). The rationale for
this policy decision is explained in detail in the comments
accompanying the final regulations. 43 FR 36804, Aug. 18, 1978,
Sec. 725.493, Discussion and changes (b); 45 FR 13691, Feb. 29, 1980,
Sec. 718.301, Discussion and changes (b). The regulations are
substantially the same, but not identical. The proposed
Sec. 725.101(a)(32) consolidates provisions of the two existing
regulations into a definitional term with program-wide application.
In addition, the regulation codifies the Department's current
position with respect to absences, such as vacation and sick leave,
that are approved by the miner's employer. In such cases, where the
employer/employee relationship is uninterrupted, a miner is credited
with having worked during the period of the approved absence. Other
absences, such as the time during a strike or layoff, are not counted
as working days. Finally, the proposed section permits the adjudication
officer to use the Office's methodology for computing the length of the
miner's employment history as a fallback. See ``Coal Mine (BLBA)
Procedure Manual,'' ch. 2-700 (1994). The Bureau of Labor Statistics
(BLS) has compiled the average daily and annual wages for the coal mine
industry. A table of this data appears in the Office's Manual. If the
best available evidence consists of annual income statements, the
amount of time the miner worked each year as a miner may be computed by
dividing the reported income by the average daily income for that year.
The miner may be credited with a year, or a fractional part of a year,
based on the ratio of this data. If, however, the miner's annual income
exceeded the average income for that year, he may not be credited with
more than a year of employment for that income year.
20 CFR 725.103. Section 718.403 presently codifies the burden of
proof imposed on any party alleging any fact in support of its position
under part 718. The parties to a claim, however, are required to prove
a variety of facts under part 725 which also bear on entitlement
issues, e.g., status of a miner (Sec. 725.202); dependency and
relationship (Secs. 725.204-725.228); liability as a responsible
operator (subpart G); and entitlement to medical benefits (subpart J).
Part 725 does not contain a counterpart to Sec. 718.403. Accordingly, a
single provision generally allocating the parties' burdens of proof
under the BLBA logically should be placed in part 725 since those
regulations have program-wide applicability.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration of
Entitlement
20 CFR 725.202. The BLBA contains a broad definition of ``miner''
which the courts have liberally construed. See Dowd v. Director, OWCP,
846 F.2d 193 (3d Cir. 1988). In keeping with that liberal construction,
this regulation should be amended to create a rebuttable presumption
that any individual working at a coal mine or coal preparation facility
is a miner. The presumption is grounded in common sense: the vast
majority of persons working at a coal mine will ordinarily have duties
related to the mining processes of coal extraction and/or preparation.
This presumption can be rebutted by evidence that the individual is not
actually performing work integral to the extraction or preparation of
coal, or the individual's work involves only casual contact with the
coal mine operation. The structure of the regulation should also be
changed to distinguish special provisions relating to transportation
and construction workers. Of special note is the fact that construction
workers alone are relieved of the burden to prove that their work
involves the extraction or preparation of coal; working at a coal mine
site in construction activities which involve mine dust exposure is
sufficient to make them miners. See The Glem Company v. McKinney, 33
F.3d 340 (4th Cir. 1994).
20 CFR 725.203. One of the elements of entitlement required by
Sec. 725.202 is that the miner file a claim. Section 725.203(a), as
currently written, provides that all of the Sec. 725.202 requirements
must be satisfied for each month of entitlement. These criteria
effectively mean that the first month in which the miner fulfills all
the requirements for entitlement will never be earlier than the month
in which he files an application for benefits. A miner, however, is
entitled to benefits for all periods of compensable disability,
including any period of disability occurring before the claim is filed.
20 CFR 725.503. To the extent that the cross-reference to Sec. 725.202
improperly limits the miner's entitlement period (and conflicts with 20
CFR 725.503), the reference will be removed, and the language clarified
to conform to Sec. 725.503.
New paragraphs (c) and (d) incorporate material from 20 CFR
718.404, which has been deleted. Paragraph (c) makes explicit a miner's
ineligibility for black lung disability benefits if the miner resumes
his usual coal mine work or comparable and gainful work absent the
presence of complicated pneumoconiosis. Paragraph (d) reiterates the
Department's authority to reopen a finally approved claim during the
lifetime of the miner and develop medical evidence if the particular
circumstances warrant reopening. Both provisions are more logically
placed in part 725 as regulations of program-wide applicability. See 20
CFR 725.2(b).
20 CFR 725.204, .214. Sections 725.204 and 725.214 should be
amended to recognize the coexisting eligibility of both a qualified
spouse and an individual who married the miner in ignorance of a legal
impediment to that marriage. The BLBA incorporates Sec. 416(h)(1) of
the Social Security Act (SSA), which describes the requirements for
establishing the marital relationship between the wage earner and the
spouse for purposes of qualifying as a ``wife, husband, widow or
widower.'' 42 U.S.C. 416(h)(1), as incorporated by 30 U.S.C. 902(a)(2),
(e). The Department has implemented Sec. 416(h)(1) in the current
Secs. 725.204 (for spouses) and 725.214 (for surviving spouses). Recent
amendments to the SSA require corresponding changes in the regulations.
Section 416(h)(1) recognizes that both the ``legal'' and ``deemed''
spouses may be entitled to benefits. An individual qualifies as the
miner's ``legal'' spouse by proving the existence of a valid marriage
under state law. A ``deemed'' spouse, however, must demonstrate that he
lived with the miner either at the time of application or the time of
the miner's death, and:
in good faith went through a marriage with such individual resulting
in a purported marriage between them which, but for a legal
impediment not known to the applicant at the time of such ceremony,
would have been a valid marriage * * *.
42 U.S.C. 416(h)(1)(B)(i). The SSA defines a ``legal impediment'' as
only an impediment (I) resulting from the lack of dissolution of a
previous marriage or otherwise arising out of such previous marriage
or its dissolution, or (II) resulting from a defect in the procedure
followed in connection with such purported marriage.
42 U.S.C. 416(h)(1)(B)(iv).
Before 1990, Sec. 416(h)(1)(B) contained a provision preventing a
``deemed''
[[Page 3350]]
spouse from receiving benefits if a ``legal'' spouse existed and was
receiving benefits on the wage earner's account:
The [deemed spouse] provisions shall not apply if (i) another
person is or has been entitled to [old age and survivor's insurance]
benefit[s] * * * on the basis of the wages and self-employment
income of such insured individual and such other person is (or is
deemed to be) [the legal spouse] * * * of such insured individual
under subparagraph (A) at the time such applicant files the
application * * *.
42 U.S.C. 416(h)(1)(B) (1989). The Department used this version of
Sec. 416(h)(1) in promulgating the current regulatory criteria for
proving a relationship between the miner and spouse or surviving
spouse.
In 1990, Congress amended Sec. 416(h)(1)(B) by deleting the bar on
entitlement for a deemed spouse even if a legal spouse existed and was
receiving benefits. Omnibus Budget Reconciliation Act, Sec. 5119, 104
Stat. 1388-278 to 1388-280 (1990). The express purpose of the amendment
was to allow payment of concurrent benefits to both the legal and the
deemed spouses. See H. Rep. No. 101-964, 1990 U.S.C.C.A.N. 2649, 2650
(conference report). Congress intended that ``the existence of a legal
spouse would no longer prevent a deemed spouse from receiving benefits
on the worker's record or terminate the benefits of a deemed spouse who
was already receiving benefits on the worker's record.'' Id. at 2650.
Moreover, Congress expected that a deemed spouse would receive benefits
``on the same basis as if * * * she were a legal spouse * * *.'' Id.
The Social Security Administration amended its disability regulation to
reflect the statutory changes (see 20 CFR 404.346); it has not yet
amended the part 410 regulations, which govern its administration of
Part B of the BLBA. See 20 CFR part 410, subpart C (``Relationship and
Dependency'').
The proposed changes to Secs. 725.204 and 725.214 amend the
dependent and surviving spouse relationship criteria to conform to
changes in the SSA. Such changes are required for the regulations
affecting surviving spouses, given the incorporation of the SSA
statutory definitions of ``dependent'' and ``widow''. Moreover,
Congress has previously evidenced the intent to harmonize the SSA and
the BLBA statutory provisions which address marital status (see
Explanation of proposed changes to Sec. 725.212); eliminating the
``deemed'' spouse bar is consistent with this congressional policy.
20 CFR 725.209, .219, .221, .222. These provisions should reflect
the age limit for a disabled dependent currently specified in 42 U.S.C.
402(d)(1)(B), as incorporated into the BLBA by 30 U.S.C. 902(g).
Section 402(g)(ii) of the BLBA defines ``child'' to include an
individual who is disabled by SSA standards, provided such disability
``began before the age specified in section 202(d)(1)(B)(ii) of the
Social Security Act * * *.'' Congress has raised the age for the onset
of disability for the SSA program from 18 to 22 since Sec. 725.209 was
promulgated. Because the BLBA specifically incorporates its disability
age limit from the SSA, the regulation should be changed to reflect the
change in the SSA. Finally, the parenthetical cross-reference to 20 CFR
404.320(c) in Sec. 725.209(b)(1) is corrected. The SSA regulations
which concern full-time student criteria are 20 CFR 404.367 through
404.369.
20 CFR 725.212. Proposed paragraph (b) reflects the Department's
position that the BLBA and pertinent legislative history require the
payment of full monthly survivor's benefits to each surviving spouse
and surviving divorced spouse who satisfies the entitlement criteria,
regardless of the existence of any other spouse who also qualifies for
benefits.
Prior to 1992, the Department's policy regarding the allocation of
benefits between (or among) multiple surviving spouses of the same
miner, as stated in the ``Coal Mine (BLBA) Procedure Manual,'' limited
each spouse to less than full monthly benefits:
If more than one claimant is found entitled, no more than the
maximum amount of benefits for the number of beneficiaries involved
may be paid under Part C. (e.g., where a surviving spouse and a
divorced spouse both qualify, no more than the claimant plus one
dependent benefits may be paid). This maximum amount is divided
equally between the eligible beneficiaries of equal status.
Ch. 2-900 para. 8(b) (February 1980). In 1992, the Department
reconsidered this position and concluded that each surviving spouse who
meets the criteria for eligibility is entitled to the payment of the
full benefits due a surviving spouse. This change in position was the
result of further reflection on pertinent provisions of the BLBA and
their legislative history.
The BLBA's definition of ``widow'' must be considered in the
context of the Social Security Act's (SSA) definition because SSA's
definition is incorporated into the BLBA, and Congress has consistently
attempted to harmonize the two provisions. Before 1965, the SSA awarded
widow's benefits only to a surviving spouse. See Social Security
Amendments of 1965, Pub. L. No. 89-97, Sec. 308(b)(1), 79 Stat. 286
(1965). The legislative history to the 1965 amendment explicates the
intended operation of the changed definition:
Payment of a wife's or widow's benefit to a divorced woman would
not reduce the benefit paid to any other person on the same social
security account and such wife's or widow's benefit would not be
reduced because of other benefits payable on the same account.
S. Rep. No. 404, 89th Cong., 1st Sess. (1965), reprinted in 1965
U.S.C.C. & A.N. 1943, 2047. See ``Social Security Program Operations
Manual (POMS)'' RS 00615.682 (both surviving spouses and surviving
divorced spouses awarded full [100 percent] benefits).
In 1972, Congress amended the BLBA's definition of a ``widow'' to
permit the payment of benefits to a miner's surviving divorced spouse.
That definition, as amended, now reads:
Such term [widow] also includes a `surviving divorced wife' as
defined in section 216(d)(2) of the Social Security Act who for the
month preceding the month in which the miner died, was receiving at
least one-half of her support, as determined in accordance with
regulations prescribed by the Secretary, from the miner, or was
receiving substantial contributions from the miner (pursuant to a
written agreement) or there was in effect a court order for
substantial contributions to her support from the miner at the time
of his death.
30 U.S.C. 902(e). The legislative history of the amendment indicates
that Congress altered the definition of ``widow'' to make it comport
with the SSA definition:
The term `widow' in section 402(e) is likewise redefined to
conform to the Social Security Administration definition.
S. Rep. No. 743, 92nd Cong., 2d Sess. (1972) reprinted in 1972 U.S.C.C.
& A.N. 2305, 2332. See Wolfe Creek Collieries v. Robinson, 872 F.2d
1264, 1266-67 (6th Cir. 1989). Consequently, by 1972 both statutes
provided a full widow's benefit to a surviving spouse and a surviving
divorced spouse. 42 U.S.C. 402(e).
Section 412 of the BLBA also supports the payment of full benefits
to each qualified survivor. That provision states in pertinent part:
In the case of death of a miner due to pneumoconiosis or, except
with respect to a claim filed under part C of this subchapter on or
after the effective date of the Black Lung Amendments of 1981, of a
miner receiving benefits under this part, benefits shall be paid to
his widow (if any) at the rate the deceased miner would receive such
benefits if he were totally disabled.
30 U.S.C. 922(a)(2). A miner, as the primary beneficiary on a claim, is
[[Page 3351]]
clearly entitled to a full basic benefit. 30 U.S.C. 922(a)(1); 20 CFR
725.520. Upon the miner's death, the ``widow,'' as the primary
beneficiary, must be compensated in like fashion. Id. Section 902(e)
defines the term ``widow'' to include both a surviving spouse and a
surviving divorced spouse. 30 U.S.C. 902(e). Nothing in Sec. 922
provides for an alternative payment amount if a miner is survived by
two widows. Consequently, the plain language of the statutory payment
provisions mandates that both spouses should receive a full (100
percent) basic benefit amount. 30 U.S.C. 922(a)(2). To utilize any
other methodology would require payment to each ``widow'' at less than
the statutorily prescribed ``rate the deceased miner would receive if
he were totally disabled''. 30 U.S.C. 922(a)(2).
20 CFR 725.213. Section 725.213(b)(3) is no longer necessary in
view of the changes made to Sec. 725.204 to confer equal status on the
spouse and ``deemed spouse''. A new paragraph (c) clarifies
administrative practice with respect to survivor beneficiaries who
become ineligible for benefits, but later reestablish eligibility. The
most common reason for losing eligibility (among surviving spouses) is
remarriage; if the remarriage ends through death or divorce, the ex-
beneficiary may apply for a return to entitlement. The individual need
only notify the Office and provide such evidence as may be required to
reestablish eligibility. The new paragraph also makes clear that the
individual is not required to reprove the merits of entitlement.
20 CFR 725.215. Delete paragraph (g)(3)'s reference to ``section''
and replace with ``paragraph''. A miner's surviving spouse may meet the
dependency requirement pursuant to paragraph (g) if the marriage lasted
at least nine months. If the marriage lasted fewer than nine months, a
spouse may nevertheless be deemed the miner's dependent if the miner
dies in an accident or in the line of duty. The purpose of paragraph
(g)(3) is to preclude a survivor's reliance on the exception to the
nine-month marriage rule if the adjudication officer concludes that the
miner would not have lived nine months in any event. Use of the
technical word ``section'', however, makes the language of the entire
regulation inapplicable. Consequently, the reference should be changed
to confine paragraph (g)(3) to its proper context. This change is
consistent with the structure and meaning of the Social Security
Administration's parallel regulation for Part B beneficiaries, 20 CFR
410.360(b).
20 CFR 725.223. Section 725.223 should be changed to reflect the
age limit for a disabled dependent currently specified in 42 U.S.C.
402(d)(1)(B), as incorporated into the BLBA by 30 U.S.C. 922(a)(5). A
new paragraph (d) clarifies administrative practice with respect to
sibling beneficiaries who become ineligible for benefits due to
marriage, but later reestablish eligibility. See the Explanation
accompanying proposed Sec. 725.209 for changing the onset date for a
dependent beneficiary's disability. See the Explanation accompanying
proposed Sec. 725.213(c) for explaining the procedures for the
restoration of entitlement after termination due to marriage.
Subpart C--Filing of Claims
20 CFR 725.306(a). The proposed change is intended to ensure that
another proposed change, in the definition of the term ``benefits,'' 20
CFR 725.101(a)(6), does not produce unintended consequences in cases
where a claimant seeks to withdraw a claim. Currently,
Sec. 725.306(a)(3) prohibits a claimant from withdrawing a claim if he
has received benefits, defined as payments ``on account of disability
or death due to pneumoconiosis,'' unless such benefits have been
repaid. The Department has proposed amending the definition of the term
``benefits'' to include amounts paid from the Trust Fund to provide the
claimant with a complete pulmonary evaluation as required by 30 U.S.C.
923(b). Section 725.306 must also be amended, however, to make clear
that the Department will not require reimbursement of the amount spent
on the claimant's complete pulmonary evaluation as a condition for
withdrawing a claim. The proposed language is similar to language in 20
CFR 725.465(d), which provides an administrative law judge with the
authority to dismiss claims for cause only if the Trust Fund is
reimbursed for any payments made pursuant to 20 CFR 725.522.
20 CFR 725.309. The Department's current regulation governing the
processing and adjudication of subsequent or additional claims for
benefits has been a cause of much litigation. Subsequent claims for
benefits, often misleadingly referred to as duplicate claims, are those
applications filed by the same individual after final denial of a prior
claim. Initially, the litigation dealt with procedural issues. For
example, in Lukman v. Director, OWCP, 11 Black Lung Rep. (MB) 1-71
(Ben. Rev. Bd. 1988), rev'd, Lukman v. Director, OWCP, 896 F.2d 1248
(10th Cir. 1990), the Benefits Review Board held that a claimant was
not entitled to a hearing before an administrative law judge on the
issue of whether he had established a material change in conditions, a
requirement under the current regulations for consideration of the
merits of a subsequent claim.
After the Tenth Circuit reversed the Board's decision, subsequent
claims litigation focused on substantive issues, particularly the type
of evidence a claimant must submit to establish a ``material change in
conditions,'' and thereby escape denial of the subsequent claim on the
grounds of the prior denial. The appellate courts are currently divided
on this issue. The Seventh Circuit has rejected the Department's
interpretation of the regulation, holding that the claimant must
establish that his condition is substantially worse than at the time of
the prior denial in order to avoid another denial, or that ``even a
slight worsening could be and was a material change in condition.''
Sahara Coal Company v. Director, OWCP, 946 F.2d 554, 558 (7th Cir.
1991). The Third, Fourth, and Sixth Circuits gave deference to the
Department's interpretation, Labelle Processing Co. v. Swarrow, 72 F.3d
308 (3d Cir. 1995); Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th
Cir. 1996); Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir.
1994), and held that proof of a change in one of the necessary elements
of entitlement, such as the existence of pneumoconiosis, demonstrates a
material change in condition. The ALJ must thereafter weigh all of the
evidence to determine whether the claimant is entitled to benefits. The
Tenth Circuit recently fashioned yet another interpretation of the
regulation. Wyoming Fuel Co. v. Director OWCP, ____ F.3d ____, No. 94-
9576 (10th Cir. July 23, 1996).
This litigation is attributable, in substantial part, to the
context in which the relevant language was drafted. First proposed on
April 25, 1978 as part of an extensive revision of the regulations
governing the processing and adjudication of claims under the Black
Lung Benefits Act, Sec. 725.309 required that a subsequent claim for
benefits be denied on the grounds of the prior denial. 43 FR 17743,
Apr. 25, 1978. The Department received many comments objecting to the
prohibition against filing a new claim by a miner ``whose condition has
worsened or progressed to total disability.'' 43 FR 36785, Aug. 18,
1978. The Department agreed, and, in an effort to remove the
prohibition, added a clause allowing such claims if ``the deputy
commissioner determines that there has been a material change in
[[Page 3352]]
conditions.'' Id. The Department did not foresee that this wording
would cause such confusion.
At the heart of the current litigation is considerable
misunderstanding about the extent to which the common law concepts of
res judicata, or claim preclusion, and collateral estoppel, or issue
preclusion, apply to the adjudication of black lung benefits claims.
The proposed regulation is intended to resolve both questions.
Initially, the Department acknowledges that the principles of claim
preclusion are applicable to claims under the Act. Pittston Coal Group
v. Sebben, 488 U.S. 105, 122-23 (1988). That applicability, however, is
limited in two important respects. First, Sec. 22 of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 922, as incorporated into
the Black Lung Benefits Act by 30 U.S.C. 932(a), permits the reopening
and readjudication of a denied claim within one year of the order
denying benefits, based on a showing of either a mistake in a
determination of fact or a change in conditions. This reopening
provision, commonly called the right to modification, is a
Congressionally mandated exception to the application of res judicata.
Second, and more important for purposes of the Department's treatment
of subsequent claims, claim preclusion bars only an attempt to
relitigate a cause of action that was previously resolved; it has no
effect on the litigation of a cause of action which did not exist at
the time of the initial adjudication. Lawlor v. National Screen Serv.
Corp., 349 U.S. 322, 328 (1955); ``Restatement (Second) of Judgments''
Sec. 24 cmt. f (1982).
Nowhere is the applicability of this second exception more readily
understood than in the context of workers' compensation. ``It is almost
too obvious for comment that res judicata does not apply if the issue
is claimant's physical condition or degree of disability at two
entirely different times, particularly in the case of occupational
diseases.'' 3A Larson, ``The Law of Workmen's Compensation''
Sec. 79.92(f) (1982). In light of the Department's longstanding belief
in the progressive nature of pneumoconiosis (see Explanation
accompanying Sec. 718.201), the Department believes that the preclusive
effect of a previous denial of benefits should be limited. Proposed
paragraph (d)(5) reflects the most readily apparent application of
claims preclusion. It provides that no benefits are payable, based on a
subsequent claim, for the period of time which was at issue in the
prior proceeding. The regulation thus gives full effect to Sec. 22's
one-year limitation for reopening prior claims based on an allegation
of a mistake in a determination of fact or a change in conditions.
The Department's experience in administering the Black Lung
Benefits Act suggests, however, that the long latency period which
characterizes pneumoconiosis and the disease's progressive nature do
provide cause for allowing a claimant to seek benefits by filing a new
claim more than one year after the denial of a previous claim based on
a change in conditions. Thus, where the evidence establishes a
worsening in the miner's physical condition, the proposed regulation
permits adjudication of a new cause of action based on that worsening.
This adjudication will address the claimant's condition during a
completely different, and later, time period.
The Department recognizes that securing proof of a change in the
applicable conditions of entitlement may be difficult. As the Seventh
Circuit recognized in Sahara Coal, ``[t]o require proof that [the
claimant] was not in fact totally disabled as a result of black lung
disease, or that the extent of his disease or disability was unclear,
would complicate the proceeding unduly.'' 946 F.2d at 558. Although the
Seventh Circuit recognized this difficulty, it nonetheless required the
claimant to bear a burden of proof that the Department believes is too
high: ``he should be required to go further and show that he had missed
the disability threshold the first time so that even a slight worsening
could be and was a material change in his condition.'' Id.
The proposed regulation addresses this evidentiary problem, but in
a manner which recognizes the difficulty inherent in developing medical
evidence documenting a claimant's medical condition at some time in the
past. Paragraph (d)(3) thus creates a rebuttable presumption, based on
a showing that the miner's physical condition has worsened. If the new
evidence submitted by the parties establishes at least one of the
applicable conditions of entitlement previously resolved against the
miner, it is presumed that the miner's physical condition has changed
since the denial of his earlier claim. For example, the miner may
establish that his respiratory impairment is now totally disabling, or
that he has now developed pneumoconiosis. Once invoked, the presumption
may be rebutted if the party opposed to the claimant's entitlement
demonstrates that the denial of the prior claim was erroneous as a
matter of law.
The Department intends that an operator shall not be entitled to
rebut the presumption by taking a position contrary to the position it
adopted in the litigation of the prior claim. For example, where the
operator argued in the prior claim that the miner was not totally
disabled due to pneumoconiosis arising out of coal mine employment, it
may not, in an attempt to rebut the presumption of a change in the
miner's condition, argue that substantial evidence in the prior claim
supported a benefit award.
If the presumption is properly rebutted, the claimant nevertheless
will be entitled to benefits upon a showing that the miner's physical
condition, albeit totally disabling earlier, has significantly
deteriorated since the time of the prior denial. Under the Act, a
totally disabling respiratory impairment is one which prevents the
miner from performing his usual coal mine work. Where the miner's usual
coal mine work required significant physical exertion, a relatively
small respiratory impairment may be totally disabling. Accordingly, the
miner's respiratory condition may continue to deteriorate even after it
reaches the point where it would be considered totally disabling under
the Act.
The operator or Fund may also use traditional principles of issue
preclusion to rebut the presumption. Those principles prohibit the
relitigation of issues where the party against whom the bar is asserted
had a full and fair opportunity to litigate the issue in question, and
resolution of the issue was necessary to the prior judgment. Montana v.
United States, 440 U.S. 147, 153 (1979); ``Restatement (Second) of
Judgments'' Sec. 29 (1982). Thus, where the original claim was denied
solely on the basis that the claimant was not a miner, and the claimant
has not returned to work, relitigation of that issue will be barred.
Because a claimant must establish that he worked as a miner in order to
receive benefits, the subsequent claim must also be denied.
If the presumption is not rebutted, the fact-finder must consider
all of the relevant evidence of record, including the old evidence, in
order to determine whether the claimant is entitled to receive
benefits. The regulation thus effectuates the position advanced by the
Department and accepted by the Third Circuit in Labelle Processing, the
Fourth Circuit in Lisa Lee Mines, and the Sixth Circuit in Sharondale
Corp. Accordingly, paragraph (d)(1) authorizes the admission into the
record of any evidence developed in connection with the earlier claim.
To the extent that the earlier evidence remains relevant to an
evaluation of the claimant's current
[[Page 3353]]
physical condition, it must be considered by the adjudication officer.
In addition, both the claimant and the party opposing the claimant's
entitlement will be able to submit two new pulmonary evaluations or
consultative reports, in accordance with the limits set forth in
proposed Sec. 725.414.
Paragraph (d)(4) recognizes that, once a change in one of the
applicable conditions has been established, the relitigation of issues
previously decided is not precluded. The only exceptions are those
issues to which the parties stipulated and those issues which were not
contested pursuant to Sec. 725.463. For example, assume that in a prior
adjudication an administrative law judge found that the claimant was a
miner but that he did not suffer from pneumoconiosis. The ALJ
accordingly denied benefits, and the claimant did not appeal. In a
subsequent claim, the claimant establishes that he now suffers from
pneumoconiosis, and argues that the operator is precluded from
relitigating his status as a miner. The claimant is incorrect. Because
the operator was not aggrieved by the denial of benefits, it could not
appeal the ALJ's decision to the Benefits Review Board to seek reversal
of the finding that the claimant was a miner. The operator thus did not
have a full and fair opportunity to litigate the claimant's status, and
may not be bound by the prior finding. For the same reason, once a
claimant establishes a change in an applicable condition of
entitlement, such as the extent of disability, he is not precluded from
relitigating any other condition of entitlement, such as the existence
of pneumoconiosis.
Although the Department believes that parties must be allowed to
relitigate issues decided against them in a prior claim as a matter of
fairness, no such concerns underlie the treatment of uncontested issues
(see Sec. 725.463) and other stipulations into which the parties
entered during the adjudication of the prior claim. Where a party's
waiver of its right to litigate a particular issue represents a knowing
relinquishment of that right, such waiver should be given the same
force and effect in subsequent litigation of the same issue.
The proposed regulation also recognizes that a claimant whose claim
has been denied may file a new application within one year of an
earlier denial. Traditionally, such a filing has been considered a
request for modification, Consolidation Coal Co. v. Worrell, 27 F.3d
227, 230 (6th Cir. 1994), and the proposed regulation codifies this
practice. Treating a new application as a modification request is
advantageous for several reasons. First, because it allows the earlier
claim to be reopened, a modification request entitles the claimant to
have his request adjudicated under the entitlement standards in effect
at the time the original claim was filed. Second, if the claimant
establishes a mistake in a determination of fact, modification entitles
him to receive benefits from an earlier date, i.e., either from the
date on which the medical evidence establishes the onset of total
disability due to pneumoconiosis, or, if the evidence does not
establish that date, from the date the original application was filed.
Eifler v. Office of Workers' Compensation Programs, 926 F.2d 663, 666
(7th Cir. 1991).
20 CFR 725.310. Paragraph (b) should be amended to reflect changes
to the procedural regulations restricting the amount of evidence each
party to a claim may submit. Proposed Sec. 725.414 limits the parties
to two pulmonary evaluations or consultative reports in the initial
adjudication of the claim. This limitation would be easily avoided,
however, if parties were free to submit whatever additional evidence
they desired by filing a request for modification. Consequently, the
proposed regulation places an additional restriction, of one pulmonary
evaluation or consultative report, on the submission of evidence in
modification proceedings. See explanation of changes Sec. 725.414.
Proposed paragraph (c) attempts to reconcile a number of court of
appeals cases which address the scope of the district director's
authority to conduct modification proceedings under Sec. 22 of the
LHWCA, 33 U.S.C. 922, as incorporated by 30 U.S.C. 932(a). Four
courts--the Seventh, Ninth, Tenth, and Eleventh Circuits--have held
that a district director lacks the authority to modify a decision
issued by an administrative law judge. Director, OWCP v. Peabody Coal
Co., 837 F.2d 295 (7th Cir. 1988); Director, OWCP v. Palmer Coking Coal
Co., 867 F.2d 552 (9th Cir. 1989); Director, OWCP v. Kaiser Steel
Corp., 860 F.2d 377 (10th Cir. 1988); Director, OWCP v. Drummond Coal
Co., 831 F.2d 240 (11th Cir. 1987). In all four cases, the district
director had initiated modification proceedings in order to correct
allegedly erroneous determinations imposing liability on the Black Lung
Disability Trust Fund.
In contrast, the Fourth and Sixth Circuits have held that
modification proceedings must be initiated before a district director.
Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278 (6th Cir. 1987); Lee v.
Consolidation Coal Co., 843 F.2d 159 (4th Cir. 1988). In both of these
cases, claimants sought to modify denials of benefits by filing
requests for modification. In its decision, the Sixth Circuit correctly
compared the initial stages of modification proceedings to the initial
stages of a new claims proceeding. 818 F.2d at 1282. During these
stages the district director may resolve all of the relevant issues,
provided he has the consent of the parties. Thus, the district director
may issue a proposed decision and order pursuant to 20 CFR 725.418. If
no party lodges a timely objection, the proposed decision and order
will become effective and final. 20 CFR 725.419(d). Thus, where no
party objects to the proposed action, and the modification proceedings
were initiated by the claimant or the responsible operator, it is
unnecessary as well as inefficient to refer the modification request
for a hearing.
In reconciling the courts of appeals opinions, the proposed
regulation distinguishes between cases in which the parties request
modification, or in which the original adjudication of the claim did
not proceed beyond the district director, and those in which the
district director initiates modification proceedings sua sponte
following an administrative law judge's order. In the first and second
groups of cases, the district director may issue a proposed decision
and order or deny the claim by reason of abandonment. Because under the
proposed regulations a claimant or operator may not request a hearing
until after issuance of a proposed decision and order, the second
option contained in current paragraph (c)--forwarding the claim for a
hearing--has been deleted. In cases in which the district director
initiates modification proceedings after issuance of an ALJ's decision
and order, the proposed regulation requires that the case be referred
to the Office of Administrative Law Judges even if none of the parties
requests a hearing. Although the Department views the proposed
distinction as one with little significance, the proposed regulation is
consistent with the four court of appeals decisions which require such
a result.
Paragraph (c) has also been revised to ensure that any party that
requests reconsideration receives a full and fair adjudication of its
request. Thus, an administrative law judge may not deny modification on
the grounds that the party requesting modification has not submitted
any new evidence. O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S.
249, 256 (1971). In such a case, the administrative law judge is
obligated to re-weigh all of the existing evidence of record to
determine whether it establishes that the prior decision is
[[Page 3354]]
based on a mistake in a determination of fact.
Finally, proposed paragraph (d) addresses the effect of a
modification decision on previously paid benefits. The Department
believes that a distinction should be made between awards which are
overturned on appeal and awards which are modified. Any payments made
pursuant to an award which is overturned on appeal may be subject to
recoupment. See 20 CFR part 725, subpart H. Such an award has never
become final and its tentative nature is therefore apparent to all
parties. In contrast, the proposed regulation prohibits the recoupment
of benefit payments made pursuant to an award which is thereafter
modified. In the Department's view, claimants whose awards have become
final are entitled to a heightened expectation that they will be able
to keep the monthly benefits that they receive.
20 CFR 725.311. Paragraph (c) of current Sec. 725.311 has created
considerable confusion regarding the due dates for replies and
responses under the regulations in part 725. The Department does not
believe that seven additional days should be added to the time periods
within which to respond to major events in the claims process, such as
the notification of a potentially liable operator, the notice of
initial determination, and the proposed decision and order awarding
benefits. Many of these time periods, none of which is less than 30
days, may be extended for good cause shown. Consequently, the
Department does not believe that the 7-day mail rule is necessary, and
proposes to remove paragraph (c). Additionally, current paragraph (d),
which the Department proposes to redesignate as paragraph (c), is
amended to add the birthday of Martin Luther King, Jr., as a legal
holiday.
Proposed paragraph (d) addresses an issue which has created a split
between the Fourth and Tenth Circuits. In Dominion Coal Corp. v.
Honaker, 33 F.3d 401 (4th Cir. 1994), the Fourth Circuit held that
where an administrative law judge's decision was not served by
certified mail as required by the statute, the time period for
appealing that decision commenced on the date that the aggrieved party
received actual notice of the decision. The court held that ``[w]hen
the record establishes actual notice, the purpose of the statutory
certified mail requirement has been met.'' 33 F.3d at 404. In Big Horn
Coal Co. v. Director, OWCP, 55 F.3d 545 (10th Cir. 1995), the Tenth
Circuit reached a contrary conclusion. Although ``[a]llowing the 30-day
period to start with actual notice would have the salutary effect of
encouraging finality of administrative judgments when the only defect
was the procedural one of failing to use certified mail in serving
th[e] order,'' the court held that there was no provision in the
statute or regulations which permitted it to reach such a result. 55
F.3d at 550. In order to resolve this split, and to advance the policy
considerations cited by both courts, proposed paragraph (d) provides
that, where an adjudication officer has failed to comply with a
statutory or regulatory certified mail requirement, but the party has
received the document, the period for filing any responsive pleading
shall commence as of the date of receipt.
Subpart D--Adjudication Officers; Parties and Representatives
20 CFR 725.360. Technical changes to the cross references in
paragraphs (a)(3) and (c) conform with revisions to Secs. 725.401-.422.
20 CFR 725.362. The proposed amendment to paragraph (a) makes the
regulation conform with the requirements of 5 U.S.C. 500(b), which
allows an attorney to appear on behalf of a party without submitting an
authorization signed by the party. The requirements for representation
by any individual who is not an attorney in good standing with his
state bar remain unchanged. In such circumstances, the Department
requires an authorization signed by the party. Finally, the requirement
that any written declaration or notice identify the case by OWCP number
will allow OWCP to ensure proper and timely filing of the appearance.
20 CFR 725.367. The current regulation governing an operator's
payment of a claimant's attorney fee is taken nearly verbatim from
Sec. 28 of the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. 928, without recognizing significant differences in the
procedure for adjudicating claims under the Black Lung Benefits Act.
Accordingly, its interpretation has caused considerable confusion,
particularly with respect to the date on which an operator's liability
for attorney's fees is triggered. See, e.g., Bethenergy Mines v.
Director, OWCP, 854 F.2d 632 (3d Cir. 1988). In addition, the
regulation originally sought to shield the Trust Fund from the payment
of attorney's fees. A series of court decisions, however, held that the
fund assumes all of the obligations of an operator, including liability
for the claimant's attorney's fees, in cases where no operator can be
held liable for the payment of benefits. Director, OWCP v. Black
Diamond Coal Mining Co., 598 F.2d 945 (5th Cir. 1979); Director, OWCP
v. South East Coal Co., 598 F.2d 1046 (6th Cir. 1979); Republic Steel
Corp. v. U.S. Dept. of Labor, 590 F.2d 77 (3d Cir. 1978).
The proposed regulation seeks to clarify the application of Sec. 28
of the LHWCA to adjudication under the Black Lung Benefits Act. It also
provides a non-exclusive list of specific instances in which an
operator is required to pay attorney's fees and the dates on which the
operator's liability commences. The proposed regulation also recognizes
the Trust Fund's liability for attorney's fees, and makes it
coextensive with that of a liable operator. Specifically, in proposing
paragraph (a)(2), the Department intends to change the result of the
decision of the Benefits Review Board in Yokley v. Director, OWCP, 3
Black Lung Rep. (MB) 1-230 (1981). There, in the absence of a
regulation specifically addressing the fund's liability for attorney's
fees, the Board held that the fund became liable for the payment of
such fees when the district director failed to award benefits within 30
days of the date on which he learned that there was no potentially
liable responsible operator. Yokley, 3 Black Lung Rep. at 1-239. The
Department believes that the event triggering the fund's liability for
attorney's fees should be identical to the event that triggers an
operator's liability, i.e., a denial of the claimant's right to
compensation within the time limits provided by the regulations, which
creates the adversarial relationship requiring employment of an
attorney. See Director, OWCP v. Bivens, 757 F.2d 781, 787 (6th Cir.
1985).
Subpart E--Adjudication of Claims by the District Director
20 CFR 725.405. The proposed change in paragraph (b) recognizes the
Department's current practice of refusing to provide a complete
pulmonary evaluation if the district director concludes, based on the
initial evidence submitted by the claimant, that the claimant never
worked as a miner.
20 CFR 725.406. Section 413(b) of the Act, 30 U.S.C. 923(b),
guarantees each miner the opportunity to have a complete pulmonary
evaluation performed, at no expense to the miner, in order to establish
his entitlement to benefits. Although the existing regulation allows a
claimant to have this evaluation performed by his own physician, it
does not address the consequences of that selection. The adequacy of
the Sec. 413(b) examination and resulting report have been
[[Page 3355]]
frequently litigated. For example, if the report does not address all
of the elements of entitlement, the Department has been required to
remedy the deficiency, see, e.g., Cline v. Director, OWCP, 917 F.2d 9,
11 (8th Cir. 1990), even if the physician who authored the report was
one of the claimant's choosing. Given the Department's proposal to
place limits on the amount of evidence submitted by the parties, and
the importance of the Sec. 413(b) examination, which forms the
evidentiary basis for the district director's initial finding, the
Department wishes to explain in greater detail the manner in which it
will provide the claimant with a complete pulmonary evaluation.
The proposed regulation clarifies the consequences of a claimant's
decision to select an alternate physician or facility to conduct his
complete pulmonary evaluation. First, the claimant must undergo all of
the testing necessary to produce an examination that meets the
requirements of Sec. 718.104. If the physician or facility selected by
the claimant cannot perform all of the tests needed, the Department
will arrange for the claimant to undergo the additional testing before
the miner undergoes his examination.
Second, the Department will determine whether each component of the
evaluation, including the chest X-ray, the pulmonary function study,
and the blood gas study, is in substantial compliance with the
regulatory quality standards. The Department reserves the right to have
each such test reviewed by a medical consultant in order to assist in
this determination. However, the Department will only guarantee
substantial compliance with the quality standards if the testing and
the resulting report are prepared by a Department-selected physician or
facility. It has long been the Department's position that, with the
exception of deficiencies attributable to poor effort on the part of
the miner, the Department has an affirmative obligation to ensure that
each test substantially complies with the part 718 quality standards,
and that the physician provides a documented and reasoned medical
opinion on each element of entitlement. For example, where the miner's
blood gas study is non-conforming, or the physician fails to address
the issue of total disability, or the district director does not find
the physician's report credible, the Department must either seek
additional information from the physician or provide the miner with a
wholly new examination.
The proposed regulation retains this rule with respect to
physicians and facilities selected by the Department. With respect to
physicians and facilities selected by the miner, the regulation
requires the district director, after determining whether the testing
complies with the quality standards, to inform the miner and the
physician or facility of any deficiencies in the report, and allow
sufficient time to correct such deficiencies. If the deficiencies are
not corrected, however, the district director is not obligated to take
any further action. The district director retains the authority to
order another examination by a physician or medical facility selected
by the district director.
Third, proposed Sec. 725.406 specifies that if the miner selects
the physician, that report will count as one of the two reports which a
claimant is entitled to submit under the proposed evidentiary
limitations in Sec. 725.414. If the Department selects the physician,
the claimant may submit two other reports.
Finally, the regulation, in combination with changes to 20 CFR
725.101(a)(6), clarifies the mechanism by which the Department may seek
recoupment of the cost of the Sec. 413(b) examination from a coal mine
operator that has been finally determined to be liable for the
claimant's benefits. Although the current regulation states that the
Department is entitled to reimbursement, it fails to refer specifically
to the most appropriate method for recouping amounts owed the Trust
Fund, 30 U.S.C. 934. Consequently, a clarification is in order.
20 CFR 725.407. Paragraphs (a) and (c) of the current Sec. 725.407
have been moved to Sec. 725.406. Paragraph (b), which allowed claimants
to develop additional evidence prior to the initial finding, has been
eliminated. Instead, the development by the parties of evidence
relevant to the miner's entitlement will be governed by
Secs. 725.413-.414. For an explanation of the proposed text, see the
explanation of changes to Sec. 725.408.
20 CFR 725.408. The current Sec. 725.408 has been eliminated. The
sanctions it provides for a claimant's failure to submit to medical
examinations are contained in proposed Secs. 725.409 and 725.414.
Proposed Secs. 725.407 and 725.408 replace the current regulations
found at 20 CFR 725.412 and 725.413, governing the notification of, and
response by, potential responsible operators. The proposed changes are
part of an effort to deal with difficulties that the Department has
encountered in effectuating Congress's mandate that liability for black
lung benefits be borne by individual coal mine operators to the maximum
extent feasible. See Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th
Cir. 1987). Past difficulties in naming potential responsible operators
have included: (1) the practice among operators of filing ``blanket''
controversions, denying every element of the liability issue, which
generally are not supported by any evidence and are later withdrawn in
substantial part; and (2) the tardy submission of evidence relevant to
operator liability, often only when the claim is pending before the
Office of Administrative Law Judges. These late evidentiary submissions
have increased the likelihood of an incorrect responsible operator
determination by the district director and have led to greater Trust
Fund liability under the Board's decision in Crabtree v. Bethlehem
Steel Corp., 7 Black Lung Rep. 1-354 (1984).
The proposed regulations create a new subclass of operators. Out of
all of the miner's former employers, one or more operators may be
designated as ``potentially liable operators.'' The potentially liable
operator that most recently employed the claimant will generally be the
responsible operator liable for the payment of benefits. The proposed
regulation affords the district director considerable flexibility,
however, in notifying potentially liable operators. If the miner was
most recently employed for a substantial period of time by a fully
insured operator, the district director need notify only that operator
of its potential liability. If the miner's most recent employer had no
insurance and appears to lack other assets, or employed the miner in a
capacity which may not be considered coal mine employment, the district
director may choose to notify more than one potentially liable
operator. Moreover, the district director may notify such operators
seriatim; after evaluating the response from the miner's most recent
employer, or failing to receive any response, the district director may
notify additional operators.
The district director's additional flexibility also imposes greater
responsibility. Unlike the current version of Sec. 725.412(c), the
proposed standards do not allow a district director to name any
additional operators after a case has been referred to the Office of
Administrative Law Judges, in the absence of fraudulent concealment of
the facts relevant to the identification of the responsible operator.
Thus, the Department will essentially assume the risk of not notifying
the ``correct'' responsible operator.
In order to offset this risk, the regulations require potentially
liable operators to produce any exculpatory
[[Page 3356]]
documentary evidence while the case is still pending before the
district director, and thus in sufficient time to allow the district
director to notify additional operators. Each operator must either
admit or deny its status as a potentially liable operator, and support
its denial with specific evidence. It is hoped that this requirement
will increase the Department's ability to correctly identify the
responsible operator liable for the payment of benefits. For a
discussion of the effects of the BLBA and the Administrative Procedure
Act on the Department's ability to impose time limits on the parties'
submission of this evidence, see the explanation of changes to
Sec. 725.414.
20 CFR 725.409. The proposed revisions add a new basis for denying
a claim by reason of abandonment and clarify the procedures to be used
in denying a claim by reason of abandonment. The Department has
interpreted current Sec. 725.409(a)(3) to include failure to appear at
an informal conference, and the Fourth Circuit recently confirmed the
use of that paragraph in Wellmore Coal Co. v. Stiltner, 81 F.3d 490,
497 (4th Cir. 1996). The proposed addition of paragraph (a)(4) will
make that authority explicit. A corresponding change has been made to
Sec. 725.416(c), to provide similar sanctions against a responsible
operator for its unexcused failure to appear.
The proposed changes also clarify the procedures for denying claims
by reason of abandonment. Currently, the regulations allow the claimant
to undertake a variety of actions in response to an initial notice that
the claim will be abandoned. The proposed regulation at paragraph (b)
allows the claimant only two options following the district director's
initial letter: (1) correct the problem identified by the district
director; or (2) allow the district director to deny the claim by
reason of abandonment, and then request a hearing, which will be
limited to the issue of whether the district director properly
initiated abandonment proceedings.
20 CFR 725.410-413. The proposed regulations governing the district
director's initial adjudication of the claim, Secs. 725.410-.413,
differ from the current regulations in several respects. In general,
they provide for a two-track investigation, allowing the district
director to make a preliminary determination of entitlement while
concurrently seeking a coal mine operator that may be held liable for
the payment of the claimant's benefits. It is anticipated that these
two investigations will culminate in a single document, the initial
finding. That document will contain a preliminary finding as to the
claimant's eligibility, based on the complete pulmonary evaluation
developed in accordance with Sec. 413(b) of the Act, and another
finding with respect to the potentially liable responsible operator.
The operator will then be required to accept or contest both findings
within 30 days of the initial finding's issuance.
The most important change in these proposed regulations involves
the claimant's response to a district director's initial finding that
the claimant is not eligible for benefits. Currently, the claimant is
allowed 60 days within which to request a hearing or submit new
evidence. If he submits new evidence, he is given an additional 60 days
within which to request a hearing. Often, however, the Department
receives communications from claimants which do not fit neatly into
either option. The result has been the litigation of various procedural
issues. See, e.g., Adkins v. Director, OWCP, 878 F.2d 151 (4th Cir.
1989); Plesh v. Director, OWCP, 71 F.3d 103 (3d Cir. 1995). The
Department hopes to eliminate such litigation through the proposed
amendment.
The proposed regulations therefore address the problems that the
Department has encountered in applying the current regulations. They
narrow the claimant's options following an initial finding of non-
eligibility to a single choice, but expand the time period within which
this option may be exercised. Within one year of an initial finding of
non-entitlement, the claimant may request further adjudication of the
claim, but he may not request a hearing at this point. If the claimant
fails to take any action during the one-year period following an
initial finding which denies the claim, the denial of the claim will be
considered effective and final as of the date of the initial finding.
The one-year period, which incorporates the modification period of 33
U.S.C. 922 into the initial processing of the claim, reflects the
Department's experience in administering the program. Miners who truly
feel that they are disabled will typically request further processing
of their claim within one month of an initial denial. Others, perhaps
less sure of whether their condition actually meets the Department's
total disability due to pneumoconiosis criteria, may wait to determine
whether their condition worsens. Such miners are entitled to take
advantage of the one-year period in LHWCA Sec. 22, as incorporated by
30 U.S.C. 932(a). The proposed regulation accommodates both types of
claimants, by allowing any response within the one-year period to
trigger further adjudication of the claim.
After receiving responses from both parties (or after expiration of
the time within which a response could be filed), the district director
will proceed in accordance with those responses. Where a claimant's
eligibility and the identity of the liable party are uncontested, the
district director will issue a proposed decision and order. In other
cases, the district director will issue a schedule for the submission
of evidence by the parties. For a discussion of the effects of the BLBA
and the Administrative Procedure Act on the Department's ability to
impose time limits on the parties' submission of evidence, see the
explanation of changes to Sec. 725.414.
20 CFR 725.414. Proposed paragraph 725.414(a) reflects the
Department's determination that the disparity in financial resources
available to claimants, as compared to coal mine operators, has created
an adverse impact on the fair adjudication of claims. Limitations on
the amount of medical evidence which the parties may proffer are
therefore necessary in order to restore some measure of balance to the
process of determining a claimant's entitlement. Accordingly, a new
regulation is proposed which defines the amount, and type, of medical
evidence which each party may proffer in support of its position. We
are specifically seeking comment on the proposed evidentiary
limitations in Sec. 725.414. This regulation also will require the
parties to submit their written medical evidence to the district
director. Generally, once a claim is referred for hearing before an
administrative law judge, the parties may only elicit oral testimony.
The Department now has more than 20 years of experience in
processing and adjudicating black lung benefits claims, and more than
thirteen years of experience in adjudicating claims under the current
program regulations. This long history demonstrates claimants' present
difficulty in establishing their entitlement. Part of that difficulty
can be attributed to changes in medical criteria and eligibility
standards imposed by Congress in 1981. Also important, however, are the
obstacles claimants face when confronted by coal mine operators and
their insurance carriers as adversaries. Such parties possess economic
resources far superior to most claimants, which enable them to generate
medical evidence in such volume that it overwhelms the evidence
supporting entitlement. The proposed changes to the program regulations
governing claims adjudication attempt
[[Page 3357]]
to make more equitable the evidentiary development in black lung
claims.
When Congress amended the BLBA in 1978 to permit the reopening of
many thousands of denied claims, it required the claimants' entitlement
to be judged using liberal interim medical criteria (20 CFR part 727).
30 U.S.C. 902(f)(2). As a result, claims reopened by the amendments
enjoyed a 46.0 percent approval rate at the district level.
(Statistical data reported in ``OWCP FY94 Annual Report to Congress,''
Table B-1). Congress also required the Department, in conjunction with
the National Institute for Occupational Safety and Health (NIOSH), to
develop permanent ``criteria for all appropriate medical tests * * *
which accurately reflect total disability in coal miners * * * .'' 30
U.S.C. 402(f)(1)(D). The Department thereafter promulgated the part 718
regulations; these criteria apply to all claims filed after March 31,
1980. For claims filed between the 1978 amendments and the effective
date of the part 718 regulations, the Department still utilized the
part 727 criteria. Consequently, the district level approval rate, at
34.0 percent, was generous. Once the more rigorous part 718 standards
took effect, however, the approval rate dropped to 10.9 percent for all
claims filed between April 1, 1980 and December 31, 1981, and
adjudicated at the district level.
Congress again amended the BLBA to tighten eligibility requirements
for claims filed after December 31, 1981. Statutory changes which
reduced claims approvals included elimination of favorable entitlement
presumptions and automatic survivor's entitlement upon the death of a
miner whose claim had been awarded. See 20 CFR 725.1(a), (h). The
district level approval rate for claims filed after December 1981 was
5.0 percent as of the end of the 1994 fiscal year. Claimants fared
little better if they pursued their applications beyond the district
level by requesting hearings before the Office of Administrative Law
Judges; the approval rate for such claims during the same period rose
only to 7.6 percent.
The dramatically lower approval rates reflect not only the
statutory changes, but also the increasing percentage of claims in
which coal mine operators or their insurers, rather than the Black Lung
Disability Trust Fund, are potentially liable. Their superior economic
resources simply permit evidentiary development which outweighs the
evidence claimants can procure. The United States Court of Appeals for
the Sixth Circuit has commented on this problem:
This cumulative evidence inquiry also reveals certain policy
flaws in the adjudication of claims that typically operate to
disadvantage Black Lung Benefits Act claimants. First, experts hired
exclusively by either party tend to obfuscate rather than facilitate
a true evaluation of a claimant's case. Second, when one party is
able to hire significantly more experts because it has infinitely
more resources, the truth-seeking function of the administrative
process is skewed and directly undermined. Third, hiring armies of
experts often results in needless expense. If such a system
continues unchecked, justice will not be served, while moneyed
interests thrive.
Woodward v. Director, OWCP, 991 F.2d 314, 321 (6th Cir. 1993). See also
Timothy Cogan, ``Is the Doctor Hostile? Obstructive Impairments and the
Hostility Rule in Federal Black Lung Claims,'' 97 W. Va. L. Rev. 1003,
1004 fn. 3 (1995). As a possible solution, the Sixth Circuit suggested
that the administrative law judge prevail upon the parties to accept
negotiated evidentiary limitations and share the cost of hiring
physicians.
The Department believes that the concerns expressed by the Court in
Woodward are valid. Rather than address those concerns through an ad
hoc resort to each adjudicator's discretion, however, a ``bright-line''
rule of uniform application is preferable. Such a rule imposes a known
standard of conduct on the parties from the outset, which enables them
to plan their litigation strategies accordingly. The proposed
regulation therefore limits each side to two complete pulmonary
examinations and one ``interpretive'' review (x-ray rereadings,
clinical test validations, etc.) of each of its opponent's diagnostic
studies and examinations. This amount of evidence should be sufficient
to enable each party to advance or defend its position while satisfying
the demands of ``due process.'' The Commonwealth of Kentucky has
imposed similar limitations on the evidence submitted in connection
with claims for workers' compensation. Kentucky Revised Statutes
Annotated Sec. 342.033 (Michie/Bobbs-Merrill 1993). Limiting evidence
will also have the salutary effect of reducing the costs associated
with litigating claims and the amount of repetitive evidence which
often burdens the record without shedding light on the medical issues.
The proposed regulation also fundamentally restructures the claims
adjudication process by focusing evidentiary development at the
district director level. The regulation requires all parties to develop
their documentary medical evidence and submit it to the district
director for consideration. In general, once a claim is referred for a
hearing before the Office of Administrative Law Judges, no further
documentary medical evidence will be admitted into the record. Only if
there are extraordinary circumstances or the pulmonary evaluation
obtained by the Department is insufficient or incomplete may the
Administrative Law Judge admit additional documentary medical evidence
into the record. The Administrative Law Judge will conduct the hearing
and permit the parties to elicit testimony from witnesses, including
any physician whose report is in the record. The judge will base his
decision on the evidentiary record developed by the district director
and the hearing testimony.
The foregoing procedure departs from current practice by severely
limiting the admission of new documentary medical evidence while a
claim is pending before an Administrative Law Judge. Parties presently
often reserve the active development of medical evidence until a claim
is scheduled for hearing. Permitting additional evidentiary development
before the Administrative Law Judge was logical when significant delays
occurred between the district director's decision and the hearing
before the Administrative Law Judge. Given the progressive nature of
pneumoconiosis, additional evidence was usually necessary for the
Administrative Law Judge to receive an accurate understanding of the
miner's health. Such delays no longer occur in a statistically
significant percentage of claims. Consequently, the practical need for
permitting evidentiary development at the hearing stage has
disappeared.
Litigation strategy, as well as delays, has also encouraged
operators to defer active participation and evidentiary development
until claims were referred for hearing. Over time, this practice has
significantly eroded the ability of the Department to conduct a
thorough and meaningful initial adjudication of each claim at the
district level. Because delay is no longer a legitimate consideration,
the proposed regulation requires full operator participation before the
district director.
The Department believes that the fair, efficient and expeditious
adjudication of claims is a desirable objective which can be promoted
by limiting the amount of medical evidence developed and encouraging
all parties to participate actively at the earliest stages of the
process. The Secretary clearly has the statutory authority to issue
regulations which achieve this goal. The BLBA provides that ``[t]he
Secretary of Labor * * * [is] authorized to issue such regulations as
[he] deems appropriate to
[[Page 3358]]
carry out the provisions of this title.'' 30 U.S.C. 936(a). The
legislative history of this broad grant of authority ``establishes that
Congress intended to provide the Secretary adequate flexibility to
assure the payment of benefits to eligible persons.'' Director, OWCP v.
National Mines Corp., 554 F.2d 1267, 1274 (4th Cir. 1977) (footnote
omitted). The Secretary has already issued several regulations
(discussed below) which address the submission or exclusion of
evidence. This proposed regulation involves the same matter, and is a
permissible exercise of the Secretary's statutory authority.
Moreover, Part C of the BLBA assimilates various provisions of Part
B of the BLBA and the Social Security Act by means of a circuitous
series of incorporations by reference. The BLBA states that ``[t]he
amendments made by the Black Lung Benefits Act of 1972, * * * to Part B
of [title IV] shall, to the extent appropriate, also apply to part C of
[title IV].'' 30 U.S.C. 940. Section 923(b), in turn, incorporates
various provisions of the Social Security Act into Part B. The 1972
amendments revised Sec. 923(b) to make Sec. 405 of the Social Security
Act, 42 U.S.C. 405, applicable to Part B. Consequently, Sec. 940 makes
Sec. 405 of the Social Security Act applicable to Part C via
Sec. 923(b). Among the incorporated SSA provisions is Sec. 405(a),
which states as follows:
The Secretary shall have full power and authority to make rules
and regulations and to establish procedures, not inconsistent with
the provisions of this subchapter, which are necessary or
appropriate to carry out such provisions, and shall adopt reasonable
and proper rules and regulations to regulate and provide for the
nature and extent of the proofs and evidence and the method of
taking and furnishing the same in order to establish the right to
benefits hereunder.
42 U.S.C. 405(a) (1995 supp.). Section 405(a) contains ``exceptionally
broad'' authority to prescribe standards for ``proofs and evidence'' in
disability claims under the SSA. Heckler v. Campbell, 461 U.S. 458, 466
(1983); see also Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).
Under the aegis of this authority, the Supreme Court has upheld the
Social Security Administration's use of broad medico-vocational
guidelines to determine whether a claimant is disabled; the guidelines
provided an acceptable substitute for resolving classes of issues
instead of requiring individualized findings in each case concerning
the claimant's ability to perform work in the national economy.
Heckler, 461 U.S. at 467. Pursuant to Sec. 405(a), the SSA has also
validly promulgated a regulation prescribing criteria for weighing
medical reports from treating physicians (20 CFR 404.1527). Schisler v.
Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). The proposed regulation is
designed to regulate the ``nature and extent of the proofs and evidence
and the method of taking and furnishing'' such evidence for
adjudicating black lung benefits claims. Its promulgation therefore
comes within the authority conferred on the Secretary by Congress
through the incorporation of 42 U.S.C. 405(a) into the BLBA.
Both individually and together, Secs. 936(a) and 405(a) authorize
the Secretary to regulate evidentiary development under the BLBA.
Whether the proposed procedures represent a valid exercise of that
authority depends on their consistency with the BLBA and the
Administrative Procedure Act, 5 U.S.C. 551 et seq. (the APA). The BLBA
is the organic statute; the regulation must therefore be consistent
with its enabling authority. Hearings under the BLBA must be conducted
in accordance with the APA. 33 U.S.C. 919(d), as incorporated by 30
U.S.C. 932(a); 20 CFR 725.452(a). Neither statute prohibits the
Department from imposing reasonable limitations on evidence.
Section 923(b) of the BLBA provides that ``all relevant evidence
shall be considered.'' 30 U.S.C. 923(b). Like Sec. 405 of the Social
Security Act, this provision applies to Part C via the incorporation
mechanism of Sec. 940; Congress added the ``all relevant evidence''
language to Sec. 923 in the 1972 amendments. Section 940, however,
contains an important qualifier: the enumerated Part B amendments apply
only ``to the extent appropriate.'' This phrase confers on the
Secretary the explicit authority to determine which aspects of Part B
should be adopted, and to what extent. The proposed regulation
represents the Secretary's judgment as to the appropriate extent to
which ``all relevant evidence'' should be admitted for consideration by
the factfinder. (The Department has not adopted all of the SSA
provisions incorporated by the 1972 amendments and enumerated in
Sec. 923(b). For example, Sec. 405(j) contains an elaborate and
detailed procedure for certifying benefits payments to a representative
payee rather than the beneficiary; the Department's regulations are
less comprehensive than the statutory provisions. Compare 42 U.S.C.
405(j) with 20 CFR 725.510, 725.511. Furthermore, the Department has
not promulgated regulations which implement the SSA attorney fee or
criminal penalties provisions. See 42 U.S.C. 406, 408.)
Read literally and without regard to the remainder of the
provision, the ``all relevant evidence'' language arguably requires the
admission for consideration of any evidence which could be relevant to
the adjudication of a claim. The phrase appears less than clear,
however, when the remainder of Sec. 923(b) is considered. A literal
reading infringes on Sec. 923(b)'s incorporation of broad agency
authority from the Social Security Act to regulate ``the nature and
extent of the proofs and evidence and the method of taking and
furnishing the same,'' discussed earlier. Such a reading would
proscribe the agency from implementing procedures which impose any
evidentiary controls unrelated to the sole criterion of relevance.
Section 923(b) itself contains an important limitation on the
consideration of potentially ``relevant'' evidence by the adjudicator.
For claims filed before January 1, 1982, the Department is required to
accept a positive x-ray reading which meets certain requirements. For
any claim, Sec. 923(b) requires the Department to accept the results of
an autopsy as to the presence and stage of pneumoconiosis unless fraud
or accuracy are implicated. Consequently, the Department is precluded
from submitting (or, as the adjudicator, considering) relevant evidence
which contradicts the x-rays or autopsies subject to Sec. 923(b). Thus,
the actual scope of the phrase ``all relevant evidence'' is unclear
when it is considered in relation to other parts of Sec. 923(b).
If a literal reading of a statutory provision's language does not
provide an unambiguous explanation of its intended operation, then
resort to its legislative history is warranted. See Burlington No. R.
Co. v. Okla. Tax Comm'n, 481 U.S. 454, 461 (1987). Congress added the
``all relevant evidence'' language when it amended the BLBA in 1972.
The amendment represented a reaction to the Social Security
Administration's heavy reliance on negative x-rays in denying claims,
and its failure to develop other evidence which might support
entitlement. See S. Rep. No. 92-743, 92nd Cong., 2nd Sess., at pp. 13-
16 (1972), reprinted in ``Legislative History of the Federal Coal Mine
Health and Safety Act of 1969,'' Part II--Appendix, at pp. 1958-1961.
``Every available medical tool should be used to assist a miner in
successfully pursuing his claim for benefits.'' Id. at 15. Thus, the
historical context of the language demonstrates that it is a statutory
exhortation for the agency to explore every avenue which may prove the
claimant's entitlement. Given the policy behind the provision, its
apparent breadth should not act as a guarantor for
[[Page 3359]]
the admission of any quantity of evidence an operator might obtain
which refutes a claimant's entitlement.
Under the current program regulations, Sec. 923(b) does not
prohibit the exclusion of certain evidence despite its relevance. For
example, an operator may not present evidence which conflicts with
findings made by the district director if the operator fails to make
certain responses in a timely manner. 20 CFR 725.413(b)(3) (response to
notice of claim); 725.414(b) (response to initial finding). Any
documentary evidence which is withheld from the district director must
be excluded from all future proceedings unless submission is requested
by another party or ``extraordinary circumstances'' exist. 20 CFR
725.414(e)(1), 725.456(d). Any party's failure to submit evidence
within specified time frames, failure to provide proper notification of
an expert witness' hearing appearance, or failure to appear at a
hearing without permission, are also grounds for limiting or excluding
evidence. 20 CFR 725.456(b)(2), 725.457(a), 725.461(b). None of these
exclusionary regulations permits relevance to excuse the infraction.
Many of the foregoing procedures were ``intended to expedite the
claims process, eliminate surprise, and require the parties to
undertake a timely development of their positions.'' 43 FR 36798, Aug.
18, 1978, Sec. 725.456, Discussion and changes (a). In promulgating
these regulations in 1978, the Department concluded that ``[n]either
the act, nor the Administrative Procedure Act, to the extent that it is
incorporated, prohibits the Department from designing rules which
diminish the element of surprise from black lung claims procedures.''
43 FR 36794, Aug. 18, 1978, Sec. 725.414, Discussion and changes (a).
The proposed regulation also satisfies valid policy considerations by
limiting evidentiary development in the interests of a fairer and more
balanced adjudication process. It encourages the expeditious and timely
development of the parties' positions by focusing much of that
development at the district level. Consequently, the regulation
promotes the same policy goals as some of the current regulations in
excluding or limiting the admission of otherwise relevant evidence.
The proposed regulation also affects the conduct of formal hearings
by administrative law judges, which are governed by the APA. 5 U.S.C.
554(a). Section 556(d) provides in pertinent part:
* * * Any oral or documentary evidence may be received, but the
agency as a matter of policy shall provide for the exclusion of
irrelevant, immaterial, or unduly repetitious evidence. * * * A
party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct
such cross-examination as may be required for a full and true
disclosure of the facts.
5 U.S.C. 556(d). The proposed regulation obviously limits the literal
language of Sec. 556(d), which permits receipt of ``any * * *
documentary evidence.'' The documentary evidence which the ALJ
generally may receive under this proposal would consist of the record
compiled and transmitted by the district director; that record itself
would be limited in quantity to a certain amount of documentary medical
evidence submitted by each party. To the extent that the regulation
departs from Sec. 556(d), the Department believes that the Secretary
has the authority to promulgate regulations which vary the APA's
hearing requirements.
Section 956 of the Mine Safety and Health Act states that,
``[e]xcept as otherwise provided in this chapter, the provisions of
sections 551 to 559 * * * of Title 5 shall not apply to the making of
any order, notice, or decision made pursuant to this chapter, or to any
proceeding for the review thereof.'' 30 U.S.C. 956. ``This chapter'' is
a reference to chapter 22 of Title 30, United States Code, which
codifies the Mine Safety and Health Act. The BLBA is subchapter IV of
that Act. Section 956 therefore exempts application of the APA to the
BLBA unless ``otherwise provided in this chapter.''
Section 932(a) of the BLBA incorporates by negative reference
Sec. 919 of the LHWCA, which in turn requires hearings to be conducted
in accordance with the APA. Section 932(a), however, also provides the
Secretary with the authority to depart from the terms of the
incorporated provisions of the LHWCA. Specifically, portions of the
LHWCA apply to Part C of the BLBA ``except as otherwise provided * * *
by regulations of the Secretary.'' 30 U.S.C. 932(a). Section 919 of the
LHWCA is the vehicle by which the APA applies, since Sec. 956 generally
exempts title 30, United States Code, from the APA. By regulation,
therefore, the Secretary can ``otherwise provide'' the extent to which
the incorporated provision of the LHWCA makes the APA applicable. The
proposed regulation provides the guidelines and limitations for
developing evidence in connection with the adjudication of a claim for
benefits before the administrative law judge. Consequently, to the
extent the regulation departs from the APA, that departure is
``otherwise provided'' by part 725. The Department adopted this
position in Director, OWCP v. Greenwich Collieries, Inc., 114 S.Ct.
2251 (1994), as a basis for supporting the ``true doubt'' rule. The
Court did not reach the merits of this argument because it held that
the regulation at issue was too broad to overcome a presumption that
the APA hearing procedures applied. 114 S.Ct. at 2254.
In any event, the proposed regulation is consistent with the
objective behind the allowance for the receipt of ``any'' evidence. In
``The Attorney General's Manual on the Administrative Procedure Act''
at 76 (1947), reprinted in ``Federal Administrative Procedure
Sourcebook'' 51, 125 (1985), the following discussion occurs:
Under section [556(d)] it is clear that, as heretofore, the
technical rules of evidence will not be applicable to administrative
hearings. [Citation omitted.] Thus, it is stated that ``the mere
admission of evidence is not to be taken as prejudicial error (there
being no lay jury to be protected from improper influence) although
irrelevant, immaterial, and unduly repetitious evidence is useless
and is to be excluded as a matter of efficiency and good practice.''
[Citation omitted.]
This gloss suggests that Sec. 556(d) cannot be read as a literal
directive to admit all evidence any party may proffer unless the
evidence is ``irrelevant, immaterial or unduly repetitious.'' Rather,
the purpose of the admission/exclusion language is to eliminate
technical evidentiary rules as grounds for assigning error to the
liberal admission of evidence. A general policy favoring the admission
of evidence over its exclusion on technical grounds does not thereby
preclude an agency from determining in the first instance what
evidence, and how much, may be admitted as ``relevant'' and
``material''. To interpret Sec. 556(d) otherwise would effectively read
out of the BLBA the broad authority contained in provisions like
Sec. 405(a) to regulate the evidence used to establish entitlement to
benefits. The APA is modeled on the hearing procedures contained in
Sec. 205(b) of the Social Security Act, and ``the social security
administrative procedure does not vary from that prescribed by the
APA.'' Richardson v. Perales, 402 U.S. 389, 409 (1971), citing ``Final
Report of the Attorney General's Committee on Administrative
Procedure,'' contained in S. Doc. No. 8, 77th Cong., 1st Sess., 157
(1941).
Finally, no aspect of the proposed regulation impinges on any of
the procedural rights afforded parties by Sec. 556(d). ``The matter
comes down to the question of the procedure's integrity
[[Page 3360]]
and fundamental fairness.'' Richardson, 402 U.S. at 410. The APA
permits the submission of documentary evidence, but it does not
prescribe the juncture in the process when that evidence must be
developed. Consequently, requiring the parties to submit all medical
evidence to the district director is consistent with the right to
submit that evidence to the administrative law judge for de novo
consideration. The regulation simply eliminates the bifurcated
evidentiary development permitted by current practice.
The APA also affords the right to an oral hearing, the presentation
of testimonial and rebuttal evidence, and the cross-examination of
witnesses; the regulation preserves all of these rights.
Evidentiary limitations seem especially apt in the context of black
lung claims litigation. The medical issues are clearly defined by
statute and regulation, and limited in nature since they involve only
the individual miner's condition. Each party should therefore be able
to obtain a comprehensive review of the miner's respiratory condition
which supports its position. As long as each party has the right to
rebut the opposing party's case, to subpoena and cross-examine opposing
medical witnesses, and present its case, upon request, to an
administrative law judge, then the requirements of the APA and due
process are satisfied.
As discussed above, the Black Lung Benefits Act vests the Secretary
with broad authority to manage the adjudication of claims for black
lung benefits. That management is particularly difficult, however, in
cases which require adjudication of both the claimant's eligibility and
the liability of one of the claimant's previous employers. The
Department's goals are to: (1) provide a forum for the full and fair
adjudication of both eligibility and liability; (2) ensure that
potentially eligible claimants are put into interim pay status as
quickly as possible; (3) limit the number of physically demanding and
often invasive pulmonary evaluations that a claimant has to undergo in
the evaluation of his entitlement; and (4) protect the Black Lung
Disability Trust Fund by fulfilling Congress' intent that liability for
black lung claims be borne by coal mine operators to the maximum extent
feasible.
Reconciling these interests in cases involving multiple potentially
liable responsible operators has not been easy. Such cases typically
arise where there is a dispute over whether the miner's most recent
employer: (a) is a coal mine operator; (b) employed the claimant as a
miner; and (c) is financially capable of assuming liability. In
Crabtree v. Bethlehem Steel Corp., 7 Black Lung Rep. 1-354 (1984), the
Benefits Review Board held that the Department was not entitled to a
remand to name another responsible operator after the claimant had
established his entitlement to benefits and the administrative law
judge correctly dismissed the responsible operator initially designated
by the Director. Such a remand, the Board held, would require the
claimant to relitigate his entitlement. Instead, the Board instructed
the Director to resolve the liability issue in a preliminary proceeding
or proceed against all potential responsible operators at each stage of
the adjudication. Although the Sixth Circuit has declined to apply
Crabtree in a case in which the Director designated a new responsible
operator before the claimant had to litigate his entitlement to
benefits, Director, OWCP v. Oglebay Norton Co., 877 F.2d 1300, 1304
(6th Cir. 1989), the Fourth Circuit has explicitly endorsed the Board's
decision in the context where the claimant has already litigated and
established his eligibility. Director, OWCP v. Trace Fork Coal Co., 67
F.3d 503, 508 (4th Cir. 1995).
Absent statutory amendment, however, the Department cannot simply
resolve a disputed responsible operator determination before
adjudicating the claimant's entitlement. Even if an operator aggrieved
by the Director's initial decision that if the responsible operator
were able to litigate the issue before the Office of Administrative Law
Judges and the Benefits Review Board, the federal courts of appeals
will not hear appeals from liability decisions prior to adjudication of
the merits of the claimant's entitlement. Youghiogheny & Ohio Coal Co.
v. Baker, 815 F.2d 422, 424-5 (6th Cir. 1987).
In changing the current system, then, the Department has two basic
choices: (a) name a single potentially liable responsible operator; or
(b) name multiple responsible operators (either all of the miner's
former employers or enough of them to ensure that one will likely be
held liable). The risk of the first option falls solely on the Trust
Fund. Since the district director has only one opportunity to designate
a responsible operator, the Trust Fund assumes the risk that the
district director's initial identification may be incorrect.
The second option, however, may have a considerable negative impact
on claimants if each responsible operator is allowed to develop medical
evidence with respect to the claimant's eligibility. Obviously, the
claimant in such a case would be subject to multiple physical
examinations. In addition, such a system would increase the chances
that the claimant's eligibility will be decided based on the sheer mass
of evidence which multiple operators are capable of developing. For
example, in Martinez v. Clayton Coal Co. et al., 10 Black Lung Rep.
(MB) 1-24 (1987), the claimant faced three potentially liable
responsible operators. The ALJ denied benefits and the claimant
appealed, arguing that the ALJ erred in failing to resolve the
liability issue prior to adjudicating the claimant's eligibility. The
claimant also argued that the ALJ erred in admitting a medical opinion
submitted by one of the three operators (presumably not the operator
subsequently found liable for benefits). The Board rejected claimant's
contention, holding that any potentially liable operator may submit
evidence at the hearing bearing on the claimant's eligibility. If the
Department were to apply this practice to all cases in which there was
a legitimate liability dispute, it would widen the disparity in
resources between the claimant and those with an interest in disproving
the miner's eligibility.
Accordingly, the Department has selected a variant of this second
method. Although the Department may have notified several potentially
liable operators in a case pursuant to Sec. 725.407, in most cases, the
identity of the potential responsible operator will be clear. Thus,
after the submission of responses to the district director's initial
finding, the district director will dismiss all of the other
potentially liable operators. In such cases, the potential risk to the
Trust Fund of an incorrect responsible operator identification is
small, and it is one that the Department is willing to assume,
especially when weighed against the effect of multiple operator
participation in the litigation of the claimant's eligibility.
In cases involving more difficult liability issues (e.g., those
involving successor operators, undercapitalized partnerships, atypical
coal mine operators, etc.), however, the Department will continue to
retain more than one potentially liable operator as parties to the
case, in order to preserve its right to compel the payment of benefits
by the responsible operator ultimately determined to be liable for
benefit payments. To ensure that the claimant is not overwhelmed by
operator-developed medical evidence, however, the proposed regulations
limit all potentially liable operators to a cumulative total of two
pulmonary evaluations or two consultative reports as an affirmative
case. See discussion, above. Because all of the potentially
[[Page 3361]]
liable operators have an identical interest with respect to the
eligibility issue, the Department does not believe that any unfairness
will result from limiting the total evidence submitted. In effect, the
responsible operator, as initially found by the district director,
serves as ``lead counsel,'' developing a single response on behalf of
those opposed to the claimant's entitlement. The regulations further
provide an escape clause, allowing a potentially liable operator who is
not the responsible operator to request permission to obtain its own
examination upon a showing that the responsible operator is not fully
litigating the case.
20 CFR 725.415, .418. The proposed changes complement the
Department's efforts to strengthen the integrity of adjudication at the
district director level. Previously, parties were entitled to request
hearings before the Office of Administrative Law Judges at any point
during the initial processing of the claim. See Plesh v. Director,
OWCP, 71 F.3d 103, 111 (3d Cir. 1995). The proposed regulations remove
that option; instead, in each case the district director will issue a
proposed decision and order awarding or denying benefits. Only after
such a decision has been issued may a party request that the case be
referred to the Office of Administrative Law Judges for a formal
hearing. In accordance with that change, the proposed regulations also
remove the district director's authority to forward the case to the
Office of Administrative Law Judges prior to issuing a proposed
decision and order.
20 CFR 725.416. As the Fourth Circuit has recently recognized,
``informal conferences serve several useful purposes, all of which
would be undermined if a party could refuse to participate.'' Wellmore
Coal Co. v. Stiltner, 81 F.3d 490, 495-96 (1996). Those purposes
include narrowing issues, achieving stipulations, and crystallizing
positions. Consequently, the Department proposes to modify Sec. 725.416
to clearly provide for the imposition of sanctions on any party that
fails to appear at a scheduled informal conference and whose absence is
not excused. A party's belief that the conference will serve no
function does not justify the party's absence. The proposed regulation
further puts all parties on notice that those attending the conference
will be deemed to have authority to stipulate to issues and/or resolve
the entire claim. The current regulations simply provide that those
attending ``must have'' such authority.
20 CFR 725.417. Paragraph (b) of this regulation is revised to
conform to the limitations on evidence established in proposed
Sec. 725.414.
20 CFR 725.421. The Department has determined that the maintenance
of case files while a request for a hearing is pending is a function
which the district offices should perform. Currently, once a request
for hearing is received and the case is referred to the Office of
Administrative Law Judges, the OWCP administrative file is sent to the
national office of the Division of Coal Mine Workers' Compensation for
Maintenance. The deletion of language in paragraph (a) indicates the
Department's intention to alter current procedure.
20 CFR 725.423. The Department's current regulations allow many of
the time limits applicable to the processing and adjudication of claims
to be extended for good cause. The proposed regulations are intended to
be similarly flexible. Proposed Sec. 725.423 is intended to govern all
such time periods, and to clarify when a party must request an
extension. Two time periods are exempted from this general rule. No
purpose would be served by including the one-year time limit for a
claimant to respond to an initial finding of non-entitlement. Since the
one-year period is long in any event and any response within that
period is sufficient to trigger further adjudication of the claim, the
Department sees no need to provide for an extension of that time.
In addition, the 30-day time period for responding to a proposed
decision and order may not be extended. This time limit is
jurisdictional, see Freeman United Coal Mining Co. v. Benefits Review
Board, 942 F.2d 415, 422 (7th Cir. 1991), and is not subject to
extension.
Subpart F--Hearings
20 CFR 725.451. A cross-reference to Sec. 725.419 is included to
emphasize that the hearing request must be timely in order to be
honored.
20 CFR 725.452. A proposed paragraph (d) imposes on the
administrative law judge the duty to inform parties in writing if he
believes that a hearing is unnecessary, and afford a reasonable period
for objections. A response by even one party requesting that an oral
hearing be held in order to present testimonial evidence is sufficient
to compel the hearing.
20 CFR 725.454. Proposed Sec. 725.414(d) prohibits the introduction
of any evidence after a claim is referred for a hearing except upon a
showing of extraordinary circumstances or in the event a Department-
obtained Sec. 413(b) examination is not complete or fails to comply
with the applicable quality standards. Section 725.454 should therefore
be changed accordingly. Proposed Sec. 725.414 imposes severe
constraints upon the development of evidence at the hearing stage. For
example, documentary medical evidence which has not been submitted to
the district director cannot be made a part of the record before the
administrative law judge except upon a showing of ``extraordinary
circumstances''. Consequently, the authority to reopen the record for
the receipt of additional evidence for ``good cause'' in the current
regulation must be eliminated. The conditions under which an
administrative law judge may receive additional documentary medical
evidence are described in proposed Sec. 725.456.
20 CFR 725.456. Proposed Sec. 725.414 imposes significant
constraints on the development of documentary evidence, and especially
documentary medical evidence. The parties will be required to develop
the documentary record at the district director level; no additional
documentary evidence will be admitted at the hearing unless the
proffering party establishes extraordinary circumstances or a
Department-provided pulmonary evaluation is not complete or is of
insufficient quality. Consequently, in most cases, the record which is
transmitted to the administrative law judge pursuant to Sec. 725.421
will be the record upon which the administrative law judge adjudicates
the claim; the only additional evidence will be provided by hearing
witnesses. Only if the administrative law judge concludes that
extraordinary circumstances exist or that the record developed by the
parties is incomplete or insufficient to decide the claim, may he
remand the claim to the district director with instructions to obtain
additional evidence on specific issues, or allow the parties to develop
such additional evidence as is necessary.
The purpose of proposed Secs. 725.414 and 725.456 is to force the
parties to develop the documentary record at the district level, the
earliest adjudicatory stage, and confine the hearing to the
presentation of testimonial evidence. This procedure supplants the
current system, which effectively bifurcates evidentiary development by
permitting the parties to postpone obtaining evidence until the
hearing. Currently, each party attempts to have the most recent medical
opinions or tests admitted into the record, resulting in the last-
minute submission of evidence. Consequently, the introduction of
evidence often does not cease until after the hearing because the
parties receive additional time in which to obtain
[[Page 3362]]
rebuttal evidence. The proposed procedure eliminates this form of
maneuvering, and its attendant delays, by eliminating the incentive and
opportunity to delay evidentiary development. The right to a hearing
will become the right to request de novo review of the record by the
administrative law judge, as supplemented by whatever testimony the
parties present. Even the medical testimony will be limited to doctors
who have authored reports which are part of the record.
The proposed regulation also provides some flexibility in
permitting additional documentary evidence to be offered at the hearing
stage. If ``extraordinary circumstances'' occur, then a party may be
permitted to submit additional evidence. We are specifically seeking
comment on the ``extraordinary circumstances'' provision of proposed
Sec. 725.456. We do not contemplate, for example, that the worsening of
a miner's physical condition, no matter how severe, would establish the
existence of extraordinary circumstances, so as to warrant
supplementing the evidentiary record. Such a change is properly
addressed through the modification procedures set forth at Sec. 725.310
which allow the submission of an additional pulmonary evaluation or
consultative report. As another example, however, extraordinary
circumstances might be found in the following case. Suppose that a
miner with an eighth grade education attempts, without success, to
retain counsel at the district director level and can document that he
contacted at least 20 attorneys in his attempt. Proceeding without
counsel before the district director, he submits into evidence only one
medical report from his treating physician which does not address all
of the elements of entitlement, but merely concludes that the miner is
totally disabled. After the case is referred to the Office of
Administrative Law Judges, claimant is finally successful in retaining
counsel who requests that the claimant's evidence be supplemented with
an additional and more detailed report from his treating physician.
Similarly, a potentially liable operator that neglects to undertake
the timely development of evidence while the case is pending before the
district director may not take advantage of the ``extraordinary
circumstances'' exception, whether or not that neglect may be
considered excusable. See Doss v. Director, OWCP, 53 F.3d 654, 658 (4th
Cir. 1995) (holding that a party which inadvertently withholds evidence
developed before the district director does not meet the
``extraordinary circumstances'' exception of the current version of
Sec. 725.456(d)). To take another example, however, assume that a
potentially liable operator diligently attempts to develop evidence in
order to demonstrate it is not the operator that most recently employed
the miner. Due to fraudulent concealment on the part of the miner's
most recent employer, however, the potentially liable operator is
unsuccessful in obtaining such evidence until after the claim is
referred to the Office of Administrative Law Judges. In such a case,
the evidence may be admissible under the ``extraordinary
circumstances'' provision of the proposed rule.
In other instances, the evidence may simply be incomplete or
inadequate to permit a proper adjudication of the claim. Ordinarily, a
party who fails to develop its evidence fully simply loses. The main
exception is the Department's obligation to provide each miner with a
complete pulmonary examination. See 30 U.S.C. 923(b); 20 CFR 725.406. A
claim cannot be denied if the Department has failed to obtain such an
examination and the remaining evidence, if any, does not credibly
address all the entitlement issues. In such cases, the proposed
regulation retains the current regulation's procedure for authorizing
the administrative law judge to remand the case for additional
development or allow the parties additional time to develop the
evidence. Other than these two narrow exceptions, the proposed
regulation does not contemplate the admission of additional documentary
evidence once the claim has been referred to the Office of
Administrative Law Judges.
20 CFR 725.457. Proposed Sec. 725.414(c) requires the parties to
notify the district director of the names and addresses of any
potential hearing witnesses who have not prepared documentary evidence
in the record. Proposed paragraph (c) conforms Sec. 725.457 to this
procedure. Paragraph (c)(3) addresses the possibility that the
administrative law judge may admit additional documentary evidence
pursuant to Sec. 725.456. In that event, the person who prepared the
evidence will be permitted to testify even though he had not previously
been identified as a potential witness at the district level. Proposed
paragraph (d) addresses the scope of a medical witness' testimony. If
the witness prepared documentary medical evidence, he is restricted to
testifying to the contents of that document. Although paragraph (c)(2)
permits a party to identify potential witnesses for the hearing who
have not prepared documentary evidence, paragraph (d) makes clear that
a physician cannot be a witness unless he prepares a report in
evidence. A physician is permitted to testify only as to the clinical
testing, examination results and diagnoses contained in his report.
This limitation is intended to foreclose the use of a physician at the
hearing to review the reports and testing of all the other physicians
in evidence, and thereby exceed the number of consultative reviews
permitted by the regulations.
20 CFR 725.458. The proposed new language is intended to clarify
that any physician who testifies by deposition is subject to the same
limitations on the scope of his testimony as any physician who
testifies at the hearing before the administrative law judge. This
limitation ensures that a party cannot use a deposition to elicit
testimony which would otherwise be barred if procured at the hearing.
20 CFR 725.459. Current paragraph (a) imposes the liability for the
cost of compelling a witness to appear at a hearing on the party who
desires to cross-examine the witness. The first sentence of current
paragraph (b), however, effectively excuses the claimant from bearing
the cost of compelling a witness to appear for the claimant to cross-
examine. The conflict is resolved by deleting the first sentence of
paragraph (b). Regardless of the party's affiliation or status, the
party who compels another party to produce a witness for purposes of
cross-examination must bear the cost of the witness' appearance.
Obviously, if the witness will appear in any event to testify on behalf
of a party, exercising the right of cross-examination will not shift
the liability for costs from the proponent of the witness to the other
party.
The remainder of the regulation is restructured and consolidated.
References to the Black Lung Disability Trust Fund are included in
recognition of the Fund's liability for fees and costs when no operator
is liable.
20 CFR 725.466. The reference to Sec. 725.477 in paragraph (a) is a
typographical error. This paragraph directs the mode of service for an
order of dismissal. Section 725.477, however, concerns the form and
content of a decision and order, not its service on the parties.
Section 725.478 is the correct regulation for purposes of setting
criteria for service of an order.
20 CFR 725.478. To date, the Department has interpreted
Sec. 725.478 to make the date an administrative law judge issues a
decision the date that it is filed in the office of the district
director for purpose of Sec. 19(e) of the
[[Page 3363]]
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 919(e), as
incorporated by 30 U.S.C. 932(a). This position is based on the same-
day linkage between issuance of the decision and return of the official
record to the DCMWC, at which time it is ``considered'' filed. Three
courts of appeals and the Benefits Review Board, however, have rejected
this interpretation. Director, OWCP v. Seals, 942 F.2d 986 (6th Cir.
1991); Daugherty v. Director, OWCP, 897 F.2d 740 (4th Cir. 1990); Trent
Coal, Inc. v. Day, 739 F.2d 116 (3d Cir. 1984); Harris v. NAACO Mining,
12 Black Lung Rep. 1-115 (1989). These decisions interpret Sec. 725.478
as merely indicating where the official record should be housed once
the administrative law judge issues a decision. They also hold that the
30-day period for challenging a decision does not commence until the
decision is actually filed with the district director. The Department's
interpretation has been rejected as improperly shortening a statutorily
prescribed time period for appeal. Although the Department does not
agree with the judicial gloss put on Sec. 725.478, the regulation is
amended to conform to the caselaw by making explicit that DCMWC's
actual receipt of the record triggers the running of the 30 days.
In addition, the last two sentences of this regulation require the
district director to compute all benefits payable by an operator
following the issuance of an administrative law judge's decision and
order. Because the same computations must be performed following any
effective order awarding benefits, whether by the district director,
administrative law judge, Benefits Review Board, or court, this
requirement will be moved to Sec. 725.502, contained in subpart H,
``Payment of Benefits.''
20 CFR 725.479. Proposed paragraph (d) is added to make clear that
improper or defective service will not stay the commencement of the 30-
day period for appeal or reconsideration if the party has actually
received the decision. Actual receipt imposes on the party a duty to
act which cannot be mitigated by the error(s) in serving the decision.
See generally Dominion Coal Co. v. Honaker, 33 F.3d 401 (4th Cir.
1994).
20 CFR 725.480. Delete ``(a)'' because section 725.480 contains
only one provision.
Subpart G--Responsible Coal Mine Operators
20 CFR 725.490. The regulations governing the obligations of coal
mine operators to secure the payment of benefits have been moved to
part 726, Black Lung Benefits; Requirements for Coal Mine Operator's
Insurance. Subpart G henceforth will govern only the adjudication of
issues of operator liability.
20 CFR 725.491-.495. The material in current Sec. 725.494 will be
moved to Sec. 725.606. The material in current Sec. 725.495 will be
moved to part 726. Sections 725.491-.495 will be amended to effectuate
Congress's intent that coal mine operators bear liability to the
maximum extent feasible. The Black Lung Benefits Act contains three
substantive provisions relevant to the potential liability of
individual coal mine operators. Section 3(d) of the Federal Mine Safety
and Health Act, 30 U.S.C. 802(d), provides that the term `` `operator'
means any owner, lessee, or other person who operates, controls, or
supervises a coal or other mine or any independent contractor
performing services or construction at such mine.'' Section 422(b) of
the Act, 30 U.S.C. 932(b), further provides that ``an employer, other
than an operator of a coal mine'' shall be liable for benefits payable
to ``any employee of such employer to the extent such employee is
engaged in the transportation of coal or in coal mine construction.''
Finally, Sec. 422(i), 30 U.S.C. 932(i), provides criteria for assessing
liability against successor operators.
Beyond these general rules, however, the Department's authority to
impose liability on coal mine operators is extraordinarily broad.
Section 422(h), 30 U.S.C. 932(h), directs the Secretary to promulgate
regulations to ``establish standards, which may include appropriate
presumptions, for determining whether pneumoconiosis arose out of
employment in a particular coal mine or mines,'' and to ``establish
standards for apportioning liability for benefits * * * among more than
one operator, where such apportionment is appropriate.'' Since it began
administering the black lung benefits program in 1973, the Department
has consistently sought to impose liability on the operator that most
recently employed the miner, provided certain other conditions are met.
These other conditions currently include: (1) the operator employed the
miner for at least one year; (2) at least one day of such employment
took place after December 31, 1969; and (3) the operator is financially
capable of assuming liability for the payment of the claimant's
benefits. 20 CFR 725.493(a)(1), 725.492 (a)(3), (a)(4). These
regulatory requirements for the imposition of liability have withstood
constitutional scrutiny by a three-judge panel of the United States
District Court for the District of Columbia and the Supreme Court.
National Independent Coal Operator's Association v. Brennan, 372 F.
Supp. 16 (D.D.C.), aff'd, 419 U.S. 955 (1974).
Although the Department does not intend to alter these fundamental
requirements, some change is needed in order to address problems that
have arisen in litigation. For example, and perhaps most importantly,
the Fourth Circuit has recognized that ``[t]he Black Lung Benefits Act
and its accompanying regulations do not specifically address who has
the burden of proving the responsible operator issue.'' Director, OWCP
v. Trace Fork Coal Co., 67 F.3d 503, 507 (1995).
The proposed regulations are intended to clarify and amplify the
Department's method of identifying responsible operators and assign
appropriate burdens of proof. Sections 725.491 and 725.492 are derived
from the specific statutory provisions defining the terms ``operator''
and ``successor operator,'' respectively. In effect, they identify the
class of business entities that may be considered ``operators'' in any
claim filed under the Act. The regulations construe the Act broadly,
see Donovan v. McKee, 845 F.2d 70, 72 (4th Cir. 1988), in order both to
recognize all of the various businesses which mine coal in the United
States and to give full effect to Congress' intent that the coal mining
industry bear liability for individual claims to the maximum extent
feasible. S. Rep. 95-209, reprinted in Comm. on Education and Labor,
House of Representatives, 96th Cong., ``Black Lung Benefits Reform Act
and Black Lung Benefits Revenue Act of 1977'' (Comm. Print) at 612.
Proposed paragraph (c) of Sec. 725.491 broadly defines the term
``independent contractor.'' An independent contractor will incur
liability for black lung benefits, however, only if one of its
employees is engaged in a function covered by the Act at a covered
situs for a cumulative period of at least one year. See proposed
Secs. 725.495(a)(1), 725.494(c). Although this one-year requirement
will generally ensure that the independent contractor will have had
more than de minimis contact with coal mining, there may be cases in
which an independent contractor's contacts with mining have been
limited. For example, a maintenance worker employed by an independent
contractor who visited a coal mine once a week for five years to repair
machinery integral to the extraction of coal would be considered to
have been a miner for a cumulative period of more than one year under
the Department's
[[Page 3364]]
regulations. See proposed Sec. 725.101(a)(32). In such a case, the
regulations require that the independent contractor that employed the
miner be considered an operator for purposes of black lung liability.
The Department thus agrees with the decision of the District of
Columbia Circuit in Otis Elevator Co. v. Secretary of Labor, 921 F.2d
1285 (D.C. Cir. 1990). In Otis Elevator, a case involving the mine
safety provisions of the Federal Mine Safety and Health Act, the court
held that the statutory definition of the term ``operator,'' 30 U.S.C.
802(d), was not limited to independent contractors with a continuing
presence at a mine. The court noted that the statutory definition was
clear and unambiguous, and contained no such requirement. The
``continuing presence'' test had been adopted by the Fourth Circuit in
another FMSHA case, Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th
Cir. 1985). To the extent that a black lung benefits claim presents
this issue, the Department believes the ``continuing presence'' test
should not be applied outside the Fourth Circuit.
Proposed Sec. 725.492 largely tracks Sec. 422(i) of the Act and
provisions contained in current Sec. 725.493. The proposed regulation
is intended to clarify both the criteria for successor operator
liability, and the priority for assigning liability in cases where
there is more than one successor operator. As a general rule, the
regulations impose liability on the operator that actually employed the
miner most recently. Where that operator is no longer financially
capable of assuming liability for the claimant's benefits, typically
because the operator is no longer in existence and failed to purchase
commercial insurance to secure the payment of benefits, liability
follows the most recent purchaser of the employer's mining business. If
neither the original employer nor any successor operator which bought
the business can be held liable for benefits, the parent company of the
original employer may be held liable. The proposed regulation also
broadly defines the term ``acquisition'' to recognize any transfer of
authority over a mine, no matter how it is effected. For example, the
purchase of a coal mine operator's assets from a bankruptcy trustee, or
the transfer of a coal mine from one member of a family to another,
with or without consideration, will both be considered acquisitions for
purposes of imposing successor operator liability.
The proposed regulations also define the entities which may engage
the miner in an employment relationship. Only an operator that employed
the miner for at least one year, and for at least one day after
December 31, 1969, may be considered liable for that miner's benefits.
Section 725.493 broadly defines the necessary relationship. It may be a
traditional one, involving the payment of a wage or salary and actual
day-to-day control over the work performed, or a deemed relationship,
such as that involving a successor operator, lessor, or parent
corporation.
Proposed Sec. 725.494 uses the miner's employment relationships to
define a subclass of operators called potentially liable operators,
i.e., those operators whose relationship with the miner was of
sufficient duration and type to justify the imposition of liability
against them, and whose financial capability allows them to assume such
liability. All of the criteria for identifying a potentially liable
operator are contained in the current regulations: proposed paragraphs
(a), (b), (d), and (e) are found in current Sec. 725.492; and proposed
paragraph (c) is contained in current Sec. 725.493.
Paragraph (e) has been altered to provide more specific standards
for establishing an operator's financial capability to assume liability
for the payment of a claimant's benefits. The financial capability
criterion has always been of the utmost importance, but has been the
subject of increasing litigation in recent years. See, e.g., Director,
OWCP v. Trace Fork Coal Co., 67 F.3d 503 (4th Cir. 1995). Like the
current regulation, the proposed regulation recognizes three methods of
establishing an operator's financial capability: (1) A commercial
insurance policy covering the claim; (2) authorization to self-insure;
and (3) the possession of assets sufficient to guarantee the payment of
the claimant's benefits.
The proposed regulation makes only minor changes to the first two
methods in order to guarantee that the commercial insurance or the
security posted by a self-insured operator remain viable sources of
benefit payments. Thus, where the operator purchased commercial
insurance, the regulation requires that the insurance company must be
solvent, or that a legally obligated successor must exist. Where the
insurance company has been declared insolvent, and no successor (either
another insurance company or a state guaranty association) is available
to pay benefits, the operator's prior purchase of insurance is not
sufficient to establish the operator's ability to assume liability.
Instead, the operator itself must possess sufficient assets to secure
the payment of benefits. Similarly, where the operator was authorized
to self-insure, the operator itself must still be authorized to self-
insure or the security posted by that operator must be sufficient to
provide for the payment of benefits.
With respect to the third method, the current regulations contain a
presumption that if an operator is in existence, it is presumed to be
financially capable of assuming liability for benefits. On occasion,
that presumption has required the assessment of liability against a
coal mine operator that is in existence, but that, because of the small
size of its assets, clearly cannot pay benefits to a miner, even where
a financially capable operator is next in line to assume liability. In
such a case, the award of benefits is effectively unenforceable against
the operator, and the Trust Fund must assume liability.
The proposed regulation replaces the presumption with a more case-
specific inquiry into the operator's actual financial status by tying a
determination of financial capability based on the operator's assets to
the requirements of proposed Sec. 725.606. In the case of operators who
are in violation of their statutory duty to secure the payment of
benefits, Sec. 725.606 requires a minimum deposit of $175,000 to secure
the payment of benefits on a claim. In the case of coal mine
construction or coal transportation employers, the regulation requires
a more particularized assessment of the benefits payable in a given
claim based on the life expectancies of the miner and his dependents.
The size of the pool of potentially liable operators in any given
case will vary depending on the miner's employment history. If the
miner spent the last thirty years working for a single coal company
that either insured its liability under the Act or qualified as a self-
insurer, that company will be designated the responsible operator. If
the miner worked for a number of companies, some of which thereafter
sold their coal mining business, the number of potentially liable
operators will be larger.
Finally, Sec. 725.495 concludes the identification process by
setting forth criteria for determining which of the potentially liable
operators will be the responsible operator. The proposed regulation
also assigns burdens of proof to the respective parties to the claim,
thereby addressing the problem the Fourth Circuit identified in Trace
Fork. Proposed Sec. 725.495 alters the current regulation
(Sec. 725.493) in two important respects. First, it makes explicit
OWCP's system for determining responsible operator liability. It
provides that if more than one potentially liable
[[Page 3365]]
operator exists with respect to the miner's most recent employment, the
miner's actual employer shall be primarily liable, followed, in order,
by any potentially liable successor operator and any other operator
that may be deemed to have employed the miner. Only if no potentially
liable operator exists with respect to the miner's most recent
employment does the regulation authorize looking to the miner's next
most recent employment.
For example, assume that the miner was employed by Megalith Coal
Company from 1968 through 1982, and then went to work for Bob's Steel
Company (which operated its own coal mines) until 1985. At the time,
Bob's was insured by Shaky Insurance Company. Bob's subsequently sold
its mines to Bill's Coal Company and merged into Ace Steel Company. The
regulation requires that the miner's most recent employer bear the
liability if at all possible. The regulation would therefore prioritize
liability as follows: (1) Bob's Steel Company (as insured by Shaky
Insurance Company, provided the insurer is still solvent); (2) Bill's
Coal Company; and (3) Ace Steel Company. If none of these companies has
the financial capability to pay benefits, the regulation assigns
liability to Megalith Coal Company.
Second, proposed Sec. 725.495 allocates the parties' burdens of
proof with respect to determining the responsible operator. Pursuant to
paragraph (b), the Director bears the burden of establishing that the
responsible operator named by the district director in the initial
finding (the ``designated responsible operator'') meets all of the
Sec. 725.494 criteria for a potentially liable operator with the
exception of financial capability, which is presumed. Where the
operator failed to contest its designation as a potentially liable
operator before the district director, see proposed Sec. 725.408(a)(3),
none of the Sec. 725.494 requirements may be contested. Pursuant to
paragraph (d) of proposed Sec. 725.495, where the designated
responsible operator is not the miner's most recent employer, the
Director is required to place into the record a statement that OWCP has
searched its insurance and self-insurance records, and has found no
record that any more recent employer meets the conditions of paragraphs
725.494 (e)(1) or (e)(2).
Once the Director meets his burden, the burden shifts to the
designated responsible operator. That operator must prove either that
it does not have sufficient assets to secure its liability and
therefore is not financially capable, or that a more recent employer
meets all of the requirements for a potentially liable operator set
forth in proposed Sec. 725.494. As part of this burden, the designated
responsible operator must demonstrate that the more recent employer, or
its owners or officers, if appropriate, possesses assets sufficient to
secure the payment of benefits in accordance with Sec. 725.606. The
Department must be able to reach those assets through the enforcement
mechanisms provided by the Act. For example, proof that the owner of a
sole proprietorship possesses assets that may not be divided, such as a
jointly owned residence, will not meet the designated responsible
operator's burden. If the designated responsible operator meets its
burden, then the more recent employer, if it was notified of the claim
pursuant to proposed Sec. 725.407 and not thereafter dismissed, shall
be considered the responsible operator. If the designated responsible
operator meets its burden and the more recent employer is not a party
to the claim, then liability will be borne by the Black Lung Disability
Trust Fund.
Subpart H--Payment of Benefits
20 CFR 725.502, .522, .530. Determining the point in time at which
benefits become due under the Black Lung Benefits Act is important for
several purposes. For example, once an administrative law judge issues
a decision and order awarding benefits against a responsible coal mine
operator, the Trust Fund may pay benefits on an interim basis only
after the operator fails to pay benefits that become due and payable.
See 26 U.S.C. 9501(d)(1)(A)(ii). In addition, a beneficiary will be
entitled to additional compensation, equal to twenty percent of any
unpaid benefits, only if the operator fails to make payments within 10
days of the date on which they become due. See 20 CFR 725.607. Finally,
the date on which benefits become due determines the starting point for
computing any interest owed the beneficiary. See 20 CFR 725.608. The
current regulations, however, offer little help in determining this
critical date.
The proposed changes, which are consistent with OWCP's current
practice, generally reflect law developed under the Longshore and
Harbor Workers' Compensation Act. Under the Longshore Act, benefits
become due when the compensation order becomes effective. See Tidelands
Marine Serv. v. Patterson, 719 F.2d 126, 127 n.1 (5th Cir. 1983);
Lazarus v. Chevron USA, Inc., 958 F.2d 1297, 1299 (5th Cir. 1992).
Section 21(a) of the LHWCA, 33 U.S.C. 921(a), as incorporated into the
BLBA by 30 U.S.C. 932(a), provides that a compensation order issued
under Sec. 19 of the LHWCA, whether by a district director or an
administrative law judge, see 20 CFR 702.315, .349, .350, becomes
effective when it is filed in the office of the district director. The
Secretary's black lung regulation at 20 CFR 725.479 uses the same
language with respect to orders issued by administrative law judges.
The regulations also allow a district director to issue a compensation
order, but provide that such an order will become effective only if no
party requests a hearing within 30 days. 20 CFR 725.419(d); see Freeman
United Coal Mining Co. v. Benefits Review Board, 942 F.2d 415 (7th Cir.
1991). Proposed Sec. 725.502(a)(2) will provide all parties with notice
as to these crucial dates. Although appellate tribunals such as the
Benefits Review Board and the courts of appeals typically direct the
entry of an award on remand rather than enter an award themselves, the
proposed regulation also addresses those rare instances in which the
Board or court does issue such an award.
With one exception, the Department's experience in administering
the Black Lung Benefits Act does not justify altering the Longshore Act
procedures with respect to when benefits are payable. Thus, once an
effective order is issued, an operator must immediately commence the
payment of monthly benefits that become due thereafter in accordance
with the terms of the order. Failure to pay these benefits within 10
days of the date they become due will subject the operator to liability
for additional compensation.
The exception to Longshore Act practice concerns retroactive
benefits payable by an operator after an effective order is issued.
Such benefits are typically payable in two cases: (1) in a case in
which the claimant was receiving interim benefit payments from the
Trust Fund, where the claimant is entitled to benefits for periods
prior to the initial determination of the claimant's eligibility; and
(2) where the claimant was not receiving any interim benefit payments
prior to the effective order because the district director had
initially determined that the claimant was not entitled to benefits.
Because the calculation of retroactive benefits often involves the
consideration of factors that are not apparent in the record or the
decision, such as the dates of previous interim payments by the Trust
Fund, the Department believes that such a calculation is best performed
by the district director. Under the current regulations, such
calculations are made within 30 days of the date of the effective
award, and the proposed
[[Page 3366]]
regulation at Sec. 725.502(b)(2) codifies that time period.
For example, an administrative law judge may issue an order on
August 15, 1996, awarding benefits as of August, 1994. This decision is
effective when correctly filed and served, and the operator must
commence monthly benefit payments within 10 days of the next date upon
which monthly benefits become due, i.e., it must pay benefits due for
the month of August by September 10, 1996. If the operator fails to
make timely payment, it will incur liability for twenty percent
additional compensation. Retroactive benefits, however, covering the
period from August, 1994 through July, 1996, will not be due until the
district director completes the computation of these amounts and
notifies the parties, notification which will be completed within 30
days of August 15, 1996.
Currently, some operators and insurers pay monthly benefits
following the issuance of an effective award, but few pay retroactive
benefits while an appeal is pending. By clarifying the respective
obligations of the district director and the operator in a case in
which an award is issued, and by providing claimants with notice of the
dates on which benefit payments may be expected and the consequences of
an operator's failing to make those payments, the Department hopes to
increase operator compliance with effective awards.
20 CFR 725.503. As currently written, Sec. 725.503 does not provide
any guidance for determining when benefits should commence if the
claimant prevails in modification proceedings. A denied claim may be
modified to an award if the claimant establishes either a factual
mistake in the decision denying the claim, or a change in the miner's
condition since that denial. 33 U.S.C. 922, as incorporated by 30
U.S.C. 932(a); as implemented by 20 CFR 725.310. See generally O'Keeffe
v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 255-256 (1971); Banks
v. Chicago Grain Trimmers Assn., Inc., 390 U.S. 459, 465 (1968). A
``mistake'' determination requires the adjudicator to consider whether
the original decision is premised on some significant factual error
resulting in an improper denial of the claim. In order to prove a
change in condition, the claimant must prove that his condition has
deteriorated to the point of compensable disability since the prior
denial of the claim; this inquiry effectively acknowledges the
correctness of the earlier decision, and requires the claimant to
proffer new evidence.
The differences in the two grounds for modification necessarily
require different means for determining the commencement date for
benefits.
A change in condition--a worsening of the applicant's black lung
disease to the point where it is now totally disabling--entitles him
to benefits from the date of the change. The correction of a mistake
of fact, showing that he had totally disabling black lung disease at
the time of the original hearing, entitles him to benefits from the
date--which might be long before that hearing--on which he became
totally disabled.
Eifler v. Office of Workers' Compensation Programs, 926 F.2d 663, 666
(7th Cir. 1991).
Proposed paragraph (d) implements the alternative modification
grounds characterized by Eifler. If the basis for modifying the denial
of benefits to an award is a mistake in that denial, a determination of
the commencement date uses the same rules as apply to claims. The
adjudicator must consider whether a miner (paragraph (b)) or a survivor
(paragraph (c)) filed the claim, and weigh the evidence accordingly.
If, however, the claimant has established a change in condition, a
different method must be used. The Department has concluded that the
most reasonable alternative is to use the earliest credible evidence
supportive of an element of entitlement previously resolved against the
claimant (or left unresolved), provided such evidence was obtained
since the denial of the claim. Such evidence supports both the award
and a finding of the date from which benefits are payable if the
adjudicator has considered and rejected any later evidence refuting
entitlement. Cf. Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d
600, 603 (3d Cir. 1989) (holding that administrative law judge
erroneously awarded benefits from 1977 filing date when all medical
evidence until 1985 was negative).
Proposed Sec. 725.503 is also amended to reduce the number of
provisions dealing with part 727 awards. Section 727.302 provides the
criteria for determining when benefits are payable under part 727,
which makes most of the current references to part 727 in Sec. 725.503
unnecessary. 20 CFR 727.302. The only exception is for ``transition
claims,'' filed between July 1, 1973, and December 31, 1973, under
Sec. 415 of the BLBA, 30 U.S.C. 925. Section 727.302(e), which governs
the onset date for such claims, refers to Sec. 725.503 for the
applicable standards. Thus, proposed Sec. 725.503(e) is necessary to
supply applicable standards. No benefits on a Sec. 415 claim can be
awarded for any period of eligibility occurring prior to January 1,
1974. 20 CFR 727.303(a). Consequently, a cross-reference to
Sec. 727.303 is a necessary qualifier to making onset date
determinations under Sec. 725.503 for Sec. 415 claims.
20 CFR 725.537. Proposed Sec. 725.212(b) codifies the Department's
position that full survivor's benefits must be paid to each surviving
spouse or surviving divorced spouse who establishes eligibility. In
order to eliminate any potential inconsistency between the proposed
regulation and current Sec. 725.537, the latter must be amended to
cross-reference the new Sec. 725.212(b).
20 CFR 725.547. The Black Lung Benefits Act incorporates by
reference certain provisions of the Social Security Act which require a
claimant who has received benefits to which he is not entitled (an
``overpayment'') to reimburse the benefits unless certain defined
exceptions apply. 30 U.S.C. 923(b), 940, incorporating 42 U.S.C.
404(b). The claimant is entitled to waiver of the overpayment recovery
if he can demonstrate that permitting recovery would ``defeat the
purpose of the Act'' or ``be against equity and good conscience.'' Only
those individuals who were not ``at fault'' in creating the
overpayments are eligible for waiver.
Section 725.547(a) currently limits the availability of waiver to
those individuals who received the overpayments from the Black Lung
Disability Trust Fund. A claimant who received an overpayment from a
responsible operator or an insurance carrier may not seek waiver. The
Department has concluded that the waiver provisions should be available
to all claimants. Deleting the second sentence of paragraph (a) will
afford any individual who has received an overpayment the opportunity
to establish that he is without fault in creating the overpayment, that
he lacks the financial resources to repay the overpayment (``defeat the
purpose of title IV of the Act'') or that special circumstances exist
which demand release from liability (``be against equity and good
conscience''). See 20 CFR 725.542-725.543.
The Department recognizes that incorporated provisions from the
Longshore and Harbor Workers' Compensation Act (LHWCA) permit
recoupment only by withholding future benefits. See 33 U.S.C. 914(j),
922, as incorporated by 30 U.S.C. 932(a); Ceres Gulf v. Cooper, 957
F.2d 1199, 1206-07 (5th Cir. 1992); Stevedoring Services of American,
Inc. v. Eggert, 953 F.2d 552, 557 (9th Cir. 1992). If no future
benefits are due, then the overpayment cannot be recovered under that
statutory
[[Page 3367]]
scheme. The Department has concluded, however, that the LHWCA
provisions should not be generally applied to black lung overpayments.
The statutory authority incorporated from the Social Security Act
imposes an affirmative duty on the Department to recover overpayments
unless waiver is appropriate: ``Whenever the Secretary finds that more
* * * than the correct amount of payment has been made to any person *
* *, proper adjustment or recovery shall be made * * *'' 42 U.S.C.
404(a)(1). Since 1973, the Department has promulgated regulations
consistent with the SSA provisions. See 38 FR 26042 et seq., Sept. 17,
1973; 20 CFR 725.523, 725.524 (1978) (identical to present 725.542,
725.543). Those courts which have reviewed the Department's position
have upheld its authority to collect overpayments even when no future
benefits are due. Napier v. Director, OWCP, 999 F.2d 1032 (6th Cir.
1993); McConnell v. Director, OWCP, 993 F.2d 1454 (10th Cir. 1993);
compare Bracher v. Director, OWCP, 14 F.3d 1157, 1160-61 (7th Cir.
1994) (acknowledging difference between SSA and LHWCA statutory schemes
and the Secretary's authority to promulgate regulations which vary
incorporated provisions from LHWCA). Departing from the current
procedures obviously would result in adverse financial consequences for
the debt-laden Trust Fund. Moreover, the current procedures ensure that
recovery is made only from those individuals who were either at fault
in creating the overpayment or possess the financial resources to repay
the benefits. For these reasons, the Department has adopted the LHWCA
limitations on overpayment recovery only for overpayments which occur
as a result of modification proceedings. See 33 U.S.C. 922, as
incorporated by 30 U.S.C. 932(a); 20 CFR 725.310(d). See explanation of
changes to Sec. 725.310.
Subpart I--Enforcement of Liability; Reports
20 CFR 725.606. The current regulation at Sec. 725.494 implements
Sec. 422(b) of the Act, 30 U.S.C. 932(b), which provides that coal mine
construction and transportation employers are not required to comply
with the general requirement that coal mine operators secure their
potential liability under the BLBA. Section 422(b) further provides,
however, that the Secretary may require a coal mine construction or
transportation employer to ``secure a bond or otherwise guarantee the
payment'' of benefits to an employee that the Secretary has determined
to be eligible for benefits. The current regulation at Sec. 725.606
implements Sec. 14(i) of the Longshore and Harbor Workers' Compensation
Act, 33 U.S.C. 914(i), which generally gives the district director
authority to require the deposit of money with the United States
Treasurer whenever he deems it advisable.
The proposed changes consolidate the two current regulations into a
single one dealing generally with post-award security. The new
regulation will be located in subpart I, ``Enforcement of Liability;
Reports.'' The new regulation eliminates paragraph (a) of Sec. 725.494,
which simply repeats the security requirement of the Act and refers to
20 CFR part 726. Because this provision is discussed in considerable
detail in part 726, no useful purpose is served by repeating it in part
725. The remainder of Sec. 725.494 is integrated into Sec. 725.606. The
latter section now establishes a clear duty on the part of otherwise
unsecured operators to secure individual claims following issuance of
an effective award of benefits. The new regulation also provides a
mechanism for enforcing the duty to secure these benefit payments.
Finally, there is currently no mechanism by which the United States
Treasurer can hold deposits that are to be used to pay monthly
benefits. Accordingly, the Department has altered the incorporated
Longshore Act provision to provide authority to require a deposit of
negotiable securities with a Federal Reserve Bank. See 30 U.S.C. 932(a)
(authorizing the Department to depart from incorporated Longshore Act
provisions in order to facilitate the administration of the Black Lung
Benefits Act).
The new regulation distinguishes between the obligations of coal
mine operators that were required to secure the payment of benefits
under the Act and failed to meet that obligation, and those coal mine
construction and transportation employers that were not required to
secure. The former are required to deposit at least $175,000 (the
current average value of a claim) for each approved claim. This amount
may be increased if OWCP believes that additional security is required
because, for example, the miner is relatively young, or has a disabled
child. In cases in which the miner's age and the number of his
dependents would not justify the entire $175,000, that money will
provide additional security for claims filed by other employees of the
unsecured operator. On the other hand, because coal mine construction
and transportation employers have not violated the Act's security
requirement, they are entitled to a more precise calculation of their
potential liability for the approved claim, and may not be required to
secure other claims not yet awarded.
Consideration was given to imposing a mandatory duty on uninsured
operators and coal mine construction or transportation employers to
secure benefit payments immediately following the issuance of an
effective award of benefits, without awaiting a specific directive from
the district director. Section 725.494 currently provides that a coal
mine construction or transportation employer ``which may be liable for
the payment of benefits under this part or Part 727 of this subchapter
shall take such action as may be appropriate to guarantee the discharge
of such liability.'' Determining the amount of security required in the
case of a coal mine construction or transportation employer, however,
requires an individualized calculation by OWCP. A coal mine
construction or transportation employer cannot be expected to perform
such a calculation without assistance. Accordingly, the regulation
requires that OWCP request such an employer to secure the payment of
benefits before an order can be issued. Such a request will also give
the liable operator or other employer an opportunity to demonstrate its
compliance with the security requirement.
The regulation places the initial burden on OWCP. Once an effective
award is issued, the district office (which will receive a copy of all
such awards) will contact the Responsible Operator section of OWCP's
Branch of Standards, Regulations, and Procedures, to determine whether
the liable party has secured its obligations. If it has not, the
district director will inform the operator of its obligation to secure
the claim. If the operator fails to comply, the district director may
direct the deposit of appropriate securities or, if the claim was
awarded by an administrative law judge, the Benefits Review Board, or a
court of appeals, request the appropriate Regional Solicitor's office
to file a motion with the administrative law judge. This system will
encourage district offices to investigate an operator's existing
security, request the posting of security in appropriate cases, and to
take whatever steps are necessary to require the posting of such
security, as quickly as possible.
Paragraph (g) represents the Department's interpretation of the
interplay between Sec. 432(b), which excuses coal mine construction and
transportation employers from the Act's general security requirement,
and
[[Page 3368]]
Sec. 433(d), which imposes personal liability for benefits on the
president, secretary, and treasurer of an incorporated operator that
fails to secure the payment of benefits. Paragraph (g) makes clear that
the provisions of Sec. 433(d) will apply to incorporated coal mine
construction and transportation employers if they fail to comply with
an order requiring post-award security.
20 CFR 725.608. The proposed changes are intended to simplify the
regulation, and to allow all parties to a claim to ascertain their
obligations and rights with respect to the payment of interest. In
general, the purpose of interest is ``to ensure that an injured party
is fully compensated for its loss.'' City of Milwaukee v. Cement
Division, National Gypsum Co., 115 S. Ct. 2091, 2095 (1995). The Black
Lung Benefits Amendments of 1981 amended the Act to provide that an
operator that withholds the payment of retroactive benefits pending
review of an initial determination of eligibility shall begin to accrue
liability for interest 30 days after the initial determination. 30
U.S.C. 932(d). The initial determination serves as the first notice to
an operator that it may have incurred a potential obligation to pay
benefits, and the statute and regulations recognize that the
computation of interest from an earlier point in time may not be
equitable. See Stapleton v. Westmoreland Coal Co., 785 F.2d 424, 438 n.
12 (4th Cir. 1986) (en banc), rev'd on other grounds sub. nom. Mullins
Coal Co. v. Director, OWCP, 484 U.S. 135 (1987). Proposed paragraph
(a)(3) applies the same rule governing liability for interest to
medical benefits, an issue which the present regulation does not
address.
Paragraph (b) of the current regulation is unchanged. As the courts
have recognized, the language of this provision is broad enough to
entitle the Department to interest on any benefits paid from the Trust
Fund, including both monthly disability benefits and medical treatment
expenses. Reich v. Youghiogheny & Ohio Coal Co., 66 F.3d 111, 117 (6th
Cir. 1995).
In proposed paragraph (c), the Department recognizes that delays in
the payment of attorney's fees under the Act have contributed to the
unwillingness of attorneys in many areas of the country to accept black
lung benefits cases. Under an incorporated provision of the Longshore
and Harbor Workers' Compensation Act, attorneys may receive
compensation only if they are successful, and only after the award of
the claimant's benefits becomes final. 33 U.S.C. 928, as incorporated
by 30 U.S.C. 932(a). Because an award of benefits may not become final
until years after the attorney's fee application has been approved by
the adjudication officer, the value of the fee that the attorney
ultimately receives will be reduced by intervening inflation. Although
the BLDTF may not pay interest, see 26 U.S.C. 9501(d), the Department
believes that awarding interest on fee awards in responsible operator
cases, the majority of cases currently litigated, will encourage
attorneys to represent black lung claimants by reducing the cost of
adjudicatory delays. This position is also consistent with Supreme
Court precedent, Missouri v. Jenkins, 491 U.S. 274 (1989).
20 CFR 725.609. Several of the Department's recent enforcement
cases have involved responsible operators or insurers that became
financially incapable of paying benefits after having fully litigated
the merits of the claimant's entitlement. As a result, although the
final award is directed against one entity, the Department must seek to
enforce the award against another. The Act currently provides ample
authority for such enforcement. See, e.g., 30 U.S.C. 932(i). In Donovan
v. McKee, 845 F.2d 70, 72 (4th Cir. 1988), the Fourth Circuit refused
to sanction ``a license for operators to avoid benefit payments by
effecting convenient changes of the business form under which coal
mining operations are conducted. There is no warrant in the statutory
language or purpose for allowing operators to resort to such shell game
maneuvers to avoid liability for paying black lung benefits.''
Obviously, requiring the Department and the award beneficiary to obtain
a new order in accordance with the claims procedure outlined in part
725 would allow such operators to delay indefinitely the enforcement of
their obligations by undergoing frequent changes in identity. In
addition, such an approach would have the unfortunate result of
requiring claimants to relitigate their entitlement to benefits.
Even if the change in the operator's identity is wholly unrelated
to a desire to avoid liability for black lung benefits, the Act should
be construed to effectuate Congress's stated intent to impose liability
for benefits payable under Part C of the Act on individual coal mine
operators. In recognizing the expansive scope of the Act's provisions
relating to the industry's liability, and the broad authority vested in
the Department to carry out the provisions of the Act, see 30 U.S.C.
932(a), (h), 936(a), the proposed regulation simply codifies the
Department's existing interpretation of the Act with respect to the
enforcement of benefits.
Paragraph (a) recognizes that the owners of sole proprietorships
and the principals in partnerships are directly liable for the debts
incurred by their companies. Moreover, as the Fourth Circuit noted in
McKee, such individuals are ``unquestionably operators.'' 845 F.2d at
72.
Paragraph (b) implements Sec. 423(d) of the Act, 30 U.S.C. 933(d).
That statutory section provides that where an operator is a corporation
that has failed to secure its liability for benefits under the Act, the
president, secretary, and treasurer of such corporation ``shall be
severally personally liable, jointly with such corporation, for any
benefit which may accrue under this title in respect to any disability
which may occur to any employee of such corporation while it shall so
fail to secure the payment of benefits as required by this section.''
Although such officers do not meet the definition of the term
``operator'' (Sec. 725.491), they may be held liable for the payment of
benefits once the corporation has been determined to be the responsible
operator. Paragraph (b) further recognizes the ongoing nature of the
duty imposed on the named corporate officers by Sec. 423. For example,
Sec. 423(a) provides that an operator is responsible for ``insuring and
keeping insured the payment of such benefits.'' The Department's
proposed civil money penalty regulations (20 CFR part 726, subpart D)
recognize a similar ongoing duty with respect to self-insured operators
(see proposed Sec. 726.302(b)). Thus, any person who becomes a
corporate officer of the responsible operator after the miner ceases
his employment may be held personally liable for the payment of the
miner's benefits. The regulation allows such a corporate officer to
limit his personal liability by ensuring that the corporation posts
security for the claim under Sec. 725.606.
Paragraph (c) implements the Act's successor operator provisions in
cases where the prior operator becomes unable to pay an award of
benefits. 30 U.S.C. 932(i). In such cases, the Act imposes liability on
any operator that may be considered a ``successor operator.'' For
example, where one operator merges into another, the Department or any
beneficiary of an award should be able to quickly and summarily enforce
the pre-existing obligations of the first operator against the second.
The regulation recognizes that the liability of successor operators in
the enforcement context should be limited to those claims of which they
have constructive notice at the time of the event which gave rise to
the successor liability. For example, if one
[[Page 3369]]
company purchased the coal mining business of another on January 1,
1990, it will be deemed to have notice of all claims filed against the
seller as of that date. If the seller subsequently becomes unable to
pay any benefits due in those claims, those obligations may be enforced
directly against the successor operator. Any claims filed after the
date of sale may be enforced against the successor only if the
successor is provided with an opportunity to litigate the miner's
entitlement to benefits in the claims process set forth in Subparts E
and F of this part.
Paragraph (d) deals with companies which mine coal through
subsidiaries, joint ventures, or other business entities which they own
or control. Such companies may be considered operators under the Act
(see proposed Sec. 725.491), and must ensure the payment of benefits
by, and thus assume the risk of any failure on the part of, such
subsidiaries, joint ventures, or other business entities. For example,
a parent company may not avoid its existing liability by dissolving or
liquidating a subsidiary company. Any pre-existing obligations of such
subsidiary may be enforced against such parent company without further
resort to the claims process.
Finally, paragraph (e) is a catch-all provision designed to put all
parties on notice that the Department can take full advantage of any
other applicable federal or state law. For example, the Department has
encountered a number of cases in which the responsible operator has
gone out of business and its insurer has been declared insolvent by the
state in which it was established. In such a case, the Department and
the award beneficiary may collect from a state insurance guaranty
association where state law requires such an association to assume the
insurer's liabilities.
20 CFR 725.620. Paragraph (a) must be amended to conform with
revisions to Sec. 725.495 and part 726. Section 725.495 is being
amended and its contents moved to a more appropriate location, subpart
D of part 726, the regulations governing enforcement of the obligation
to insure and the assessment of a penalty for failure to secure benefit
payments. Thus, Sec. 725.620(a) must contain a cross-reference to the
new location of the relevant material.
20 CFR 725.621. In accordance with the Debt Collection Improvement
Act of 1996 (Pub. L. 104-134, Sec. 31001(s), 110 Stat. 1358), which
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
(Pub. L. 101-410, 104 Stat. 890), the maximum penalty amount for
failing to file a report required by the Secretary's regulations, see
30 USC Sec. 942(b), must be increased by ten percent with respect to
violations that take place after these proposed regulations become
effective.
Subpart J--Medical Benefits and Vocational Rehabilitation
20 CFR 725.701. Section 725.701 should be amended to codify the
presumption of coverage created by the United States Court of Appeals
for the Fourth Circuit in Doris Coal Co. v. Director, OWCP, 938 F.2d
492 (4th Cir. 1991). In Doris Coal Co., the Fourth Circuit recognized
that the broad definition of pneumoconiosis necessarily brought within
its ambit most pulmonary disorders for which a miner might receive
treatment. The Court therefore concluded that ``when a miner receives
treatment for a pulmonary disorder, a presumption arises that the
disorder was caused or at least aggravated by the miner's
pneumoconiosis.'' 938 F.2d at 496. The Department endorses this
approach, and accordingly amends Sec. 725.701 to codify it. Although
the decision does not describe the means of rebutting the presumption,
the proposed regulation requires evidence which completely severs the
presumed nexus between the pulmonary disorder and the miner's
pneumoconiosis. The proposed regulation also prohibits use of evidence
which challenges the miner's underlying entitlement to benefits as a
means of showing that the treatment cannot be compensable. A final
award of benefits establishing that the miner is totally disabled due
to pneumoconiosis arising out of coal mine employment precludes
reliance on any medical evidence that is inconsistent with that award.
The proper forum for such evidence is modification (see Sec. 725.310).
20 CFR 725.706. The historical rise in treatment costs warrants
raising the no-approval dollar amount in paragraph (b) from $100.00 to
$300.00.
20 CFR Part 726--Black Lung Benefits; Requirements for Coal Mine
Operators' Insurance
Subpart A--General
20 CFR 726.2. Paragraph (e) is added to recognize the addition of
subpart D of part 726, governing the assessment of civil money
penalties.
20 CFR 726.8. Proposed Sec. 726.8 is intended to define certain
terms that are used in part 726. The terms ``employ'' and
``employment'' are important not only to the Department's enforcement
of the Act's civil money penalty provisions, but also to the liability
of insurance carriers and sureties. Thus, both the required insurance
endorsement, set forth at Sec. 726.203, and the standard surety bond
form, use the term ``employment.'' Paragraph (d), which is identical to
proposed paragraph 725.493(a)(1), codifies the Department's position
that these terms should be given the broadest possible interpretation.
Subpart B--Authorization of Self-Insurers
20 CFR 726.101, .104, .105, .109, .110, .111. The Department's
existing self-insurance regulations do not contain a list of the
factors that the Department currently considers in setting the amount
of security required of an operator seeking authorization to self-
insure its benefit obligations. The formula set forth in
Sec. 726.101(b)(4) was intended to be used only in 1974. See current 20
CFR 726.105. The revisions to Sec. 726.101(b)(4) eliminate the 22-year
old formula in favor of a non-exclusive list of factors, now set forth
in Sec. 726.105. These factors are a more accurate reflection of the
Department's current method of setting a security amount. Language
referring to the formula in Sec. 726.101 has been deleted from
Sec. 726.105. In addition, Sec. 726.104 has been revised to recognize
two forms of security (letters of credit and tax-exempt trusts) that
the Department did not allow in 1974, when these regulations were last
amended, but that it does allow now. Paragraph (b)(4) reflects the
Department's decision to allow self-insurers to use letters of credit
only in combination with another form of security. Sections 726.101,
726.109, 726.110 and 726.111 have been revised to remove specific
references to the earlier forms of security and to substitute more
general references.
20 CFR 726.106. The reference in paragraph (c) to ``31 CFR 203.7
and 203.8'' is incorrect. The regulation is revised to reference ``31
CFR Part 225,'' which contains the appropriate regulations governing
deposits with the United States.
20 CFR 726.114. A new paragraph (c) has been added to codify the
Department's position that coal mine operators authorized to self-
insure their benefit liability under 30 U.S.C. 933(a) continue to be
responsible for maintaining adequate security even after they have
ceased mining coal. See the explanation to Secs. 726.300-.320, below.
Paragraph (b) is revised to eliminate the specific reference to the
forms of security previously accepted by the Department in favor of a
more general reference. See discussion of Sec. 726.104, above.
[[Page 3370]]
Subpart D--Civil Money Penalties
20 CFR 726.300-.320. Section 423 of the Black Lung Benefits Act
requires each coal mine operator to secure its liability for benefits
by qualifying as a self-insurer in accordance with regulations
prescribed by the Secretary, or by insuring and keeping insured the
payment of such benefits with a licensed workers' compensation insurer.
30 U.S.C. 933(a). Section 423 also provides that each coal mine
operator failing to meet its insurance obligation shall be subject to a
civil money penalty of up to $1,000 per day. 30 U.S.C. 933(d)(1). In
accordance with the Debt Collection Improvement Act of 1996 (Pub. L.
104-134, Sec. 31001(s), 110 Stat. 1358), which amended the Federal
Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104
Stat. 890), the maximum penalty amount must be increased by ten percent
with respect to violations that take place after these proposed
regulations become effective.
The proposed regulations are designed to enhance administration of
the civil money penalty program. The Department intends to minimize the
burden that uninsured operators place on those operators in compliance
with the Act's requirements and on the Black Lung Disability Trust
Fund. For example, in a case where the miner's most recent employer was
not insured, potential liability for benefits will typically fall on an
earlier employer which secured its benefits liability. This situation
places an additional burden on an operator fully in compliance with the
Act's insurance requirements. See Director, OWCP v. Trace Fork Coal
Co., 67 F.3d 503, 507 (4th Cir. 1995). Similarly, if no operator may be
held liable for the payment of a miner's benefits, the Trust Fund must
assume liability, 26 U.S.C. 9501(d)(1)(B), placing an additional
financial burden on the indebted Fund.
Currently, the Department's procedural and substantive criteria for
administering the Act's penalty provision are contained in a single
regulation, 20 CFR 725.495, proposed in April, 1978 and promulgated,
without comment, in August, 1978. The proposed changes, which
significantly alter the existing regulation, are in accordance with the
1979 recommendations of the Administrative Conference of the United
States, 1 CFR 305.79-3. In particular, the new regulations are intended
to accomplish three goals: (1) establish criteria to be used in
assessing penalties against coal mine operators; (2) provide affected
parties with notice of those criteria; and (3) streamline the
assessment process.
The current regulation provides only that an administrative law
judge should impose ``the maximum penalty allowed'' in the absence of
``mitigating'' circumstances. 20 CFR 725.495(d). The regulation,
however, does not define mitigating circumstances. By allowing each
administrative law judge to determine penalty amounts in this manner,
the regulation encourages subjective and inconsistent application of
the statutory penalty. In Kleppe v. Delta Mining, Inc., 423 U.S. 403
(1976), the Supreme Court noted that the Interior Department had only
recently developed formulas to be used in determining penalty amounts
under the Federal Mine Safety and Health Act. The Court noted that
``[u]se of the current regulations is preferable to the ad hoc
consideration given the [statutory] criteria in this case.'' 413 U.S.
at 409 n.2.
The proposed regulations address this problem by presenting a
graduated series of possible penalties based on a set of enumerated
criteria. The regulations adjust the penalty based on an operator's
size, its prior notice of the Act's insurance requirements, and the
operator's action, or lack thereof, following notification of the
insurance requirements. By publishing these regulations, the Department
establishes penalty criteria and provides the public with notice of
those criteria for the first time.
The proposed regulations also make two procedural changes designed
to streamline the penalty assessment process. Unlike the current
regulation, which requires the Office of Workers' Compensation Programs
to refer any case to the Office of Administrative Law Judges, whether
contested or not, the proposed regulations allow the Department's
initial proposed penalty to become final if no party requests a
hearing. This proposal recognizes the wisdom and applicability of the
Supreme Court's observation in National Independent Coal Operators'
Association v. Kleppe, 423 U.S. 388, 399 (1976), which also arose under
the Federal Mine Health and Safety Act. In that decision, the Court
observed that ``[e]ffective enforcement of the Act would be weakened if
the Secretary were required to make findings of fact for every penalty
assessment including those cases in which the mine operator did not
request a hearing and thereby indicated no disagreement with the
Secretary's proposed determination.'' In addition, the proposed
regulations provide for discretionary ``appellate'' review of
administrative law judge decisions by the Secretary of Labor at the
request of any party. Upon receipt of a timely petition for review, the
Secretary will determine whether review is warranted. This change is
designed to encourage the consistent application of the criteria used
to assess a penalty. It is hoped that a uniform body of penalty
decisions will result from allowing the Secretary of Labor to review
the decisions of administrative law judges.
Substantively, the new regulations add a definition of the time
period within which coal mine operators must comply with the security
requirement. The proposed regulation, Sec. 726.302(b), distinguishes
between operators that purchase commercial insurance to secure their
liability and those that self-insure. The obligations of the former are
extinguished when they cease mining coal, while the latter group must
continue to secure the payment of benefits. This distinction is based
on important differences in the type of insurance coverage secured by
each group.
Under the Act, commercial insurance issued to cover black lung
liability has no upper monetary limit; in exchange for a premium, the
carrier agrees to assume liability for all claims arising out of
employment during the period covered by the premium. Thus, an operator
that has purchased insurance for the duration of its operation of a
mine does not leave behind any unsecured liability when it ceases coal
mining.
In contrast, the Department typically does not require self-insured
operators to post bonds or other security with a face value that would
cover all of the operator's expected black lung liability. Indeed,
requiring security for the full amount of expected benefits might well
impose costs that many otherwise low-risk operators could not bear.
Rather, the Department has been willing to rely in part on a company's
size as a partial guarantor of future benefit payments. Accordingly,
depending on the operator's assets, the Department usually requires
security to cover only from three to fifteen years of the operator's
payments on claims currently in award status.
This requirement, however, has left the Department vulnerable in
several recent bankruptcies involving large self-insured operators,
such as the LTV Corporation and CF&I Fabricators. In both cases, the
companies had ceased mining coal several years before filing for
bankruptcy protection, and had not purchased bonds that reflected their
post-mining claims experience. The proposed regulations attempt to
remedy this problem by requiring self-insured operators to continue to
secure the
[[Page 3371]]
payment of benefits to their employees even after the operator has
ceased mining coal. A new paragraph (c) has been added to Sec. 726.114
to provide notice of this duty to operators seeking authorization to
self-insure their liabilities.
Finally, the proposed regulations will be moved from part 725,
which governs the processing, adjudication, payment, and enforcement of
claims for benefits under the Act, to part 726, which deals exclusively
with issues of insurance and self-insurance. This move is intended to
centralize the regulations implementing Sec. 423 of the Act. The
Department also hopes to eliminate any potential confusion about the
applicability of certain incorporated provisions of the Longshore and
Harbor Workers' Compensation Act. These provisions simply do not apply
to penalty assessments.
20 CFR Part 727--Review of Pending and Denied Claims under the
Black Lung Benefits Reform Act of 1977
In 1978, Congress required the Department of Labor to promulgate
interim entitlement criteria that were ``no more restrictive'' than
criteria used to adjudicate claims that had been filed with the Social
Security Administration under Part B of the Black Lung Benefits Act.
These interim criteria were to be used until the Department could
develop permanent criteria. The part 727 interim regulations were
published at 43 FR 36818, Aug. 18, 1978. Because the Department's
permanent part 718 criteria took effect on April 1, 1980, see 20 CFR
718.2, the part 727 regulations only apply to claims filed before that
date. The Department estimates that several hundred part 727 claims
remain pending in various stages of adjudication. Because the parties
to these claims are quite familiar with the standards for establishing
eligibility under part 727, and no new claims will be adjudicated under
these standards, the Department intends to discontinue the annual
publication of part 727 in the Code of Federal Regulations. Those
standards will remain in effect for all claims to which they apply.
Parties interested in reviewing part 727 may consult earlier editions
of the Code of Federal Regulations or the Federal Register in which the
regulations were originally published.
Drafting Information
This document was prepared under the direction and supervision of
Bernard Anderson, Assistant Secretary of Labor for Employment
Standards.
The principal authors of this document are Rae Ellen James, Deputy
Associate Solicitor; Richard Seid, Counsel for Administrative
Litigation and Legal Advice; and Michael Denney, Counsel for
Enforcement, Black Lung Benefits Division, Office of the Solicitor,
U.S. Department of Labor. Personnel from the Division of Coal Mine
Workers' Compensation, Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor, assisted
in the preparation of the document.
Executive Order 12866
The Department believes that the proposed regulatory changes will
not have a significant economic impact upon the coal industry or
significantly affect the approval rate for black lung claims. The
proposed changes do not pose novel legal or policy issues within the
meaning of the Executive Order since most of the proposed changes are
codifications of appellate decisions or procedural in nature. The
proposed changes are intended to encourage faster, fairer and cheaper
benefit determinations as well as make it easier to enforce employers'
and insurers' responsibilities to pay benefits. They are part of the
Reinvention initiatives supported by the National Performance Review
and have been reviewed by the Office of Management and Budget for
consistency with its objectives.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as E.O. 12875, this rule does not include any federal mandate that may
result in increased expenditures by State, local and tribal
governments, or increased expenditures by the private sector of more
than $100 million.
Paperwork Reduction Act
The proposed changes would establish no new record keeping
requirements. Moreover, they seek to reduce the volume of medical
examination and consultants' reports which are currently created solely
for the purpose of litigation by limiting the amount of such medical
evidence which will be admissible in black lung proceedings.
Regulatory Flexibility Act, as Amended
The American coal industry has produced a billion tons of coal
(anthracite, bituminous and lignite) each year since 1990. The
industry's output is worth approximately $20 billion per year, with the
precise total varying depending on market conditions. Major segments of
the industry are highly mechanized and very capital intensive,
especially surface mining operations and underground operations using
long wall mining technology. More traditional segments of the industry
which still rely on the older continuous miner technology are somewhat
more labor intensive. Overall, however, labor costs in the industry
equal less than one fourth of the value of its product output.
Employment in the coal industry has been steadily declining as a result
of increased mechanization. It peaked at three-quarters of a million
men and boys in 1918 when total production reached nearly 700 million
tons. That production record stood until the Second World War, when new
highs were reached with a workforce which had declined by 250,000.
The 1995 workforce in the industry was only 97,380 according to the
Mine Safety and Health Administration (MSHA). Bureau of Labor
Statistics data reflects an average hourly pay rate in the coal
industry for production or non-supervisory workers in 1995 of $18.44.
Assuming full year round employment, but no overtime, the annual per
employee wage costs would be $38,355 ($18.44 per hour times 2080
hours). Projecting that figure to the 1995 workforce yields an annual
labor cost of approximately $3.7 billion.
Employers engaged in the extraction and preparation of coal are
required by the Black Lung Benefits Act to ``secure the payment'' of
any benefits to former employees for which they are found liable. They
may either qualify with the Department of Labor as self-insurers or
purchase insurance to satisfy that statutory obligation.
Self-insurer status is only granted to companies with a net worth
of at least $10 million and at least three years' operating experience
in the industry. Approximately ten percent of the companies now active
in the industry are authorized self-insurers or subsidiaries of a
corporate parent which is an authorized self-insurer which has
guaranteed their liabilities under the Act. The remaining companies in
the industry are dependent upon insurance to meet their obligations.
This is normally done by purchasing a Federal Black Lung rider as an
attachment to their state workers' compensation insurance policy.
Premium rates for this insurance are established by the individual
states and not by the Federal Government.
The Division of Coal Mine Workers' Compensation has published in
its Annual Reports occupational disease insurance rates for eleven
major coal producing states for the largest group of covered workers--
underground bituminous coal miners--since the
[[Page 3372]]
1970's. These rates are assessed per $100 of payroll. Because of the
offset provisions, combined state and Federal occupational disease
coverage rates were initially published. However, beginning with the
1986 report, the state and Federal rates are now shown separately, for
those states which calculate them separately.
From 1986 through 1994 (the last year for which data has been
published), the average Federal black lung insurance rates have been
virtually constant for the nine states for which comparable data is
available throughout the period. In 1986, the average rate was $4.23
per $100 of payroll; for 1994 it was $4.33, an increase of only 2.4%.
During that period, Federal coverage rates increased in four states
(Alabama, Illinois, Kentucky and Tennessee), declined in three states
(Colorado, Indiana and Utah) and remained unchanged in two states
(Virginia and West Virginia). When a weighted average rate is
calculated based on the number of underground miners in each state, the
rate becomes $3.65 per $100 of payroll.
Assuming a maximum impact scenario, the total coal industry cost
for complying with the Act's insurance requirements would currently be
$135 million ($3.7 billion of payroll times $3.65 per $100 of payroll).
In fact, it is significantly less. Most larger employers opt for self-
insurance not only because it provides direct control over claims made
against them by their former employees but also because it is less
expensive than the purchase of commercial coverage. Also, some job
classifications, especially in surface mining, carry a lower premium
rate than that which is applicable to underground bituminous miners. To
produce an economic impact on the coal industry of $100 million per
year or more, these insurance costs would have to increase by over 70%.
Insurance rates are based largely on a combination of historical
experience and actuarial projections of future liabilities.
The current insurance rates are based on the experience with
eligibility criteria as they have existed since the 1981 Amendments to
the Act became effective on January 1, 1982. Under those criteria only
7.5% of the persons who have applied for benefits have been awarded
them. A 70% increase in approvals would be required to carry that
approval rate up to 13%. However, there is nothing in the proposed
regulatory changes which alters those eligibility criteria. Most of the
changes reflect a codification of appellate decisions. Many of those
decisions involve liberalizing constructions of the Act and
regulations; however, the single most important decision reflected is
one by the Supreme Court striking down the ``true doubt'' rule. This
decision requires the claimant to prove each element of his case by a
preponderance of the evidence and prohibits giving the claimant the
benefit of the doubt when the evidence is evenly balanced for and
against entitlement. Although these changes are expected to simplify,
expedite and make more uniform the results of the claims development
and decision processes, they are unlikely to significantly alter case
outcomes.
The major changes proposed are procedural ones intended to level
the playing field between the individual claimant and the employer or
insurer by placing limits upon the amount of evidence which each party
can submit. The shift from a focus on the quantity of evidence to the
quality of the evidence is a significant one in terms of addressing
past perceptions of unfairness in the present system.
However, the employer or insurer, who could previously overwhelm
the miner by the quantity of consultant reports and x-ray re-readings
it could submit because of its greater financial resources, will still
have an inherent advantage through possession of superior access to the
best credentialed medical experts in the field. Even the new regulation
which codifies the circumstances under which controlling weight can be
given to the opinion of the miner's treating physician is unlikely to
alter outcomes in very many cases. Few general practitioners in rural
coal field areas are likely to meet the combination of duration of
treatment, specialty qualifications and ability to produce a reasoned
narrative relating their conclusions to the objective medical data
required to invoke this special status.
The Department projects that the approval rate will rise, but only
from 7.5% to 8% or 9%. This increase in the approval rate by 20% or
less would justify an increase in the premium rate of less than 75
cents per $100 of payroll for underground bituminous miners or, using
the maximum impact calculations provided above, no more than $28
million industrywide per year. In fact, insurance rates may increase
slightly more than this amount initially because actuarial projections
used in the insurance ratemaking process tend to err on the high side
in projecting possible future liabilities. A temporary increase in the
number of claims filings will probably also occur in the first year
after promulgation of the regulations. However, once a significant body
of experience has been gained under the revised regulations, the rates
will stabilize at the appropriate level. In no event does the
Department anticipate an increase of as much as $40 million per year,
even during the initial period prior to establishing a new base of
experience under the revised procedures.
Approximately eighty percent of all coal mined in the United States
is purchased by utilities for use in the generation of electricity.
Over one-half of all electricity generated in the United States is
produced by coal-burning plants. Approximately ten percent of all coal
mined in the United States is exported.
The remaining ten percent of coal mined is consumed domestically
for a variety of uses, including steelmaking, heating, etc. An increase
of approximately $40 million per year in the costs of a $20 billion
industry equates to only two-tenths of one percent, or four cents per
ton of coal produced. It would not significantly adversely impact
coal's competitive position vis-a-vis other fuel sources, such as
petroleum, natural gas, or nuclear power.
This analysis has not attempted to apply definitions of small
entities in the coal mining industry which have been developed by other
agencies, such as MSHA or the Small Business Administration (SBA) for
other purposes for two basic reasons. First, data on the number of
miners employed or total annual volume of business done by individual
companies is not routinely gathered by the Division of Coal Mine
Workers' Compensation because it is not directly relevant to the
administration of the Black Lung Benefits Act for employers who are
covered by insurance. The second and more relevant reason is that the
entities active in the industry are divided into the two classes of
those eligible to self-insure and those which are not.
Because of the high threshold requirement of a net worth of $10
million, plus three years' operating experience in the industry, to
qualify for the privilege of self-insurance, all entities which MSHA
would classify as ``small mines'' are included in the commercially
insured category, except those which are subsidiaries of qualified
self-insurers. The SBA definition of a coal mining company as a small
business if it has fewer than 500 employees is not particularly
helpful. A highly mechanized and capitalized mining company, especially
in the Western surface mining industry, may well qualify as a self-
insurer because of its net worth and experience even though it has many
fewer than 500 employees. It is nonetheless true that it is generally
the smaller entities in the
[[Page 3373]]
industry which are dependent upon commercial insurance coverage to meet
their obligations under the Act.
The point of this analysis, however, is that all entities subject
to the insurance requirement will be equally affected by any changes in
insurance rates. Therefore, their relative competitive position vis-a-
vis one another or vis-a-vis those companies eligible to self-insure
will not be adversely impacted by any changes which may result from the
implementation of these regulatory proposals. In summary, the
Department estimates that the proposed changes in the regulations will
impose a maximum cost on firms of less than one percent of payroll or
two-tenths of one percent of total revenue industrywide. Small firms
are not expected to be disproportionately affected by these changes.
However, the Department welcomes comments on this economic analysis,
especially concerning the impact of the proposed changes on small
entities and self-insured employers. Comments are also solicited on the
projected change in the approval rate and any other factors which may
be relevant which are not currently included in the analysis. Our
current assessment that the proposed regulations will have no more than
an annual $40 million impact on the industry may be affected by the
comments received.
Therefore, the Assistant Secretary hereby certifies that
implementation of these proposed changes will not have a significant
economic impact on a substantial number of small entities.
List of Subjects in 20 CFR Parts 718, 722, 725, 726 and 727.
Black lung benefits, Lung disease, Miners, Mines, Reporting and
recordkeeping requirements, Workers' Compensation, X-rays.
Signed at Washington, D.C., this 27th day of December, 1996.
Robert B. Reich,
Secretary of Labor.
Gene Karp,
Acting Assistant Secretary for Employment Standards.
For the reasons set forth in the preamble, 20 CFR Chapter VI is
proposed to be amended as follows:
1. The authority citation for part 718 continues to read as
follows:
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 902(f), 925, 932, 934, 936, 945; 33
U.S.C. 901 et seq., 42 U.S.C. 405, Secretary's Order 7-87, 52 FR
48466, Employment Standards Order No. 90-02.
2. Part 718 is proposed to be amended by removing subpart E,
revising subparts A through D, revising Appendices A and C, and
revising the text of Appendix B (the tables, B1 through B6, in Appendix
B remain unchanged):
PART 718--STANDARDS FOR DETERMINING COAL MINERS' TOTAL DISABILITY
OR DEATH DUE TO PNEUMOCONIOSIS
Subpart A--General
Sec.
718.1 Statutory provisions.
718.2 Applicability of this part.
718.3 Scope and intent of this part.
718.4 Definitions and use of terms.
Subpart B--Criteria for the Development of Medical Evidence
718.101 General.
718.102 Chest roentgenograms (X-rays).
718.103 Pulmonary function tests.
718.104 Report of physical examinations.
718.105 Arterial blood-gas studies.
718.106 Autopsy; biopsy.
718.107 Other medical evidence.
Subpart C--Determining Entitlement to Benefits
718.201 Definition of pneumoconiosis.
718.202 Determining the existence of pneumoconiosis.
718.203 Establishing relationship of pneumoconiosis to coal mine
employment.
718.204 Total disability and disability causation defined; criteria
for determining total disability and total disability due to
pneumoconiosis.
718.205 Death due to pneumoconiosis.
718.206 Effect of findings by persons or agencies.
Subpart D--Presumptions Applicable to Eligibility Determinations
718.301 Establishing length of employment as a miner.
718.302 Relationship of pneumoconiosis to coal mine employment.
718.303 Death from a respirable disease.
718.304 Irrebuttable presumption of total disability or death due
to pneumoconiosis.
718.305 Presumption of pneumoconiosis.
718.306 Presumption of entitlement applicable to certain death
claims.
Appendix A to Part 718-Standards for Administration and
Interpretation of Chest Roentgenograms (X-rays)
Appendix B to Part 718-Standards for Administration and
Interpretation of Pulmonary Function Tests. Tables B1, B2, B3, B4,
B5, B6
Appendix C to Part 718-Blood Gas Tables
Subpart A--General
Sec. 718.1 Statutory Provisions.
(a) Under title IV of the Federal Coal Mine Health and Safety Act
of 1969, as amended by the Black Lung Benefits Act of 1972, the Federal
Mine Safety and Health Amendments Act of 1977, the Black Lung Benefits
Reform Act of 1977, the Black Lung Benefits Revenue Act of 1977, the
Black Lung Benefits Amendments of 1981, and the Black Lung Benefits
Revenue Act of 1981, benefits are provided to miners who are totally
disabled due to pneumoconiosis and to certain survivors of a miner who
died due to or while totally or partially disabled by pneumoconiosis.
However, unless the miner was found entitled to benefits as a result of
a claim filed prior to January 1, 1982, benefits are payable on
survivors' claims filed on or after January 1, 1982, only when the
miner's death was due to pneumoconiosis, except where the survivor's
entitlement is established pursuant to Sec. 718.306 of this part on a
claim filed prior to June 30, 1982. Before the enactment of the Black
Lung Benefits Reform Act of 1977, the authority for establishing
standards of eligibility for miners and their survivors was placed with
the Secretary of Health, Education, and Welfare. These standards were
set forth by the Secretary of Health, Education, and Welfare in subpart
D of part 410 of this title, and adopted by the Secretary of Labor for
application to all claims filed with the Secretary of Labor (see 20 CFR
718.2, 1978). Amendments made to section 402(f) of the Act by the Black
Lung Benefits Reform Act of 1977 authorize the Secretary of Labor to
establish criteria for determining total or partial disability or death
due to pneumoconiosis to be applied in the processing and adjudication
of claims filed under part C of title IV of the Act. Section 402(f) of
the Act further authorizes the Secretary of Labor, in consultation with
the National Institute for Occupational Safety and Health, to establish
criteria for all appropriate medical tests administered in connection
with a claim for benefits. Section 413(b) of the Act authorizes the
Secretary of Labor to establish criteria for the techniques to be used
to take chest roentgenograms (X-rays) in connection with a claim for
benefits under the Act.
(b) The Black Lung Benefits Reform Act of 1977 provided that with
respect to a claim filed prior to April 1, 1980, or reviewed under
section 435 of the Act, the standards to be applied in the adjudication
of such claim shall not be more restrictive than the criteria
applicable to a claim filed on June 30, 1973, with the Social Security
Administration, whether or not the final disposition of the claim
occurs after March 31, 1980. All such claims shall be reviewed under
the criteria set forth in part 727 of this title (see 20 CFR 725.4(d)).
[[Page 3374]]
Sec. 718.2 Applicability of this part.
This part is applicable to the adjudication of all claims filed
after March 31, 1980, and considered by the Secretary of Labor under
section 422 of the Act and part 725 of this subchapter. If a claim
subject to the provisions of section 435 of the Act and subpart C of
part 727 of this subchapter (see 20 CFR 725.4(d)) cannot be approved
under that subpart, such claim may be approved, if appropriate, under
the provisions contained in this part. The provisions of this part
shall, to the extent appropriate, be construed together in the
adjudication of all claims.
Sec. 718.3 Scope and intent of this part.
(a) This part sets forth the standards to be applied in determining
whether a coal miner is or was totally, or in the case of a claim
subject to Sec. 718.306 partially, disabled due to pneumoconiosis or
died due to pneumoconiosis. It also specifies the procedures and
requirements to be followed in conducting medical examinations and in
administering various tests relevant to such determinations.
(b) This part is designed to interpret the presumptions contained
in section 411(c) of the Act, evidentiary standards and criteria
contained in section 413(b) of the Act and definitional requirements
and standards contained in section 402(f) of the Act within a coherent
framework for the adjudication of claims. It is intended that these
enumerated provisions of the Act be construed as provided in this part.
Sec. 718.4 Definitions and use of terms.
Except as is otherwise provided by this part, the definitions and
usages of terms contained in Sec. 725.101 of subpart A of part 725 of
this title shall be applicable to this part.
Subpart B--Criteria for the Development of Medical Evidence
Sec. 718.101 General.
(a) The Office of Workers' Compensation Programs (hereinafter OWCP
or the Office) shall develop the medical evidence necessary for a
determination with respect to each claimant's entitlement to benefits.
Each miner who files a claim for benefits under the Act shall be
provided an opportunity to substantiate his or her claim by means of a
complete pulmonary evaluation including, but not limited to, a chest
roentgenogram (X-ray), physical examination, pulmonary function tests
and a blood-gas study.
(b) The standards for the administration of clinical tests and
examinations contained in this subpart shall apply to all evidence
developed by any party in connection with a claim governed by this part
(see Secs. 725.406(b), 725.414(a), 725.456(d)). These standards shall
also apply to claims governed by part 727 (see 20 CFR 725.4(d)), but
only for clinical tests or examinations conducted after March 31, 1980.
Any clinical test or examination subject to these standards shall be in
substantial compliance with the applicable standard in order to
constitute evidence of the fact for which it is proffered. Unless
otherwise provided, any evidence which is not in substantial compliance
with the applicable standard is insufficient to establish the fact for
which it is proffered.
Sec. 718.102 Chest roentgenograms (X-rays).
(a) A chest roentgenogram (X-ray) shall be of suitable quality for
proper classification of pneumoconiosis and shall conform to the
standards for administration and interpretation of chest X-rays as
described in Appendix A to this part.
(b) A chest X-ray to establish the existence of pneumoconiosis
shall be classified as Category 1, 2, 3, A, B, or C, according to the
International Labour Organization Union Internationale Contra Cancer/
Cincinnati (1971) International Classification of Radiographs of the
Pneumoconioses (ILO-U/C 1971), or subsequent revisions thereof. A chest
X-ray classified as Category Z under the ILO Classification (1958) or
Short Form (1968) shall be reclassified as Category O or Category 1 as
appropriate, and only the latter accepted as evidence of
pneumoconiosis. A chest X-ray classified under any of the foregoing
classifications as Category O, including sub-categories 0--, 0/0, or 0/
1 under the UICC/Cincinnati (1968) Classification or the ILO-U/C 1971
Classification does not constitute evidence of pneumoconiosis.
(c) A description and interpretation of the findings in terms of
the classifications described in paragraph (b) of this section shall be
submitted by the examining physician along with the film. The report
shall specify the name and qualifications of the person who took the
film and the name and qualifications of the physician interpreting the
film. If the physician interpreting the film is a Board-certified or
Board-eligible radiologist or a certified ``B'' reader (see
Sec. 718.202), he or she shall so indicate. The report shall further
specify that the film was interpreted in compliance with this
paragraph.
(d) The original film on which the X-ray report is based shall be
supplied to the Office, unless prohibited by law, in which event the
report shall be considered as evidence only if the original film is
otherwise available to the Office and other parties. Where the chest X-
ray of a deceased miner has been lost, destroyed or is otherwise
unavailable, a report of a chest X-ray submitted by any party shall be
considered in connection with the claim.
(e) No chest X-ray shall constitute evidence of the presence or
absence of pneumoconiosis unless it is conducted and reported in
accordance with the requirements of this section and Appendix A. In the
absence of evidence to the contrary, compliance with the requirements
of Appendix A shall be presumed. In the case of a deceased miner where
the only available X-ray does not substantially comply with this
subpart, such X-ray shall be considered and shall be accorded
appropriate weight in light of all relevant evidence if it is of
sufficient quality for determining the presence or absence of
pneumoconiosis and such X-ray was interpreted by a Board-certified or
Board-eligible radiologist or a certified ``B'' reader (see
Sec. 718.202).
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 718.103 Pulmonary function tests.
(a) Any report of pulmonary function tests submitted in connection
with a claim for benefits shall record the results of the forced
expiratory volume in one second (FEV1) and either the forced vital
capacity (FVC) or the maximum voluntary ventilation (MVV) or both. If
the MVV is reported, the results of such test shall be obtained
independently rather than calculated from the results of the FEV1.
(b) All pulmonary function test results submitted in connection
with a claim for benefits shall be accompanied by three tracings of
each test performed, unless the results of two tracings of the MVV are
within 5% of each other, in which case two tracings for that test shall
be sufficient. Pulmonary function test results submitted in connection
with a claim for benefits shall also include a statement signed by the
physician or technician conducting the test setting forth the
following:
(1) Date and time of test;
(2) Name, DOL claim number, age, height, and weight of claimant at
the time of the test;
(3) Name of technician;
(4) Name and signature of physician supervising the test;
[[Page 3375]]
(5) Claimant's ability to understand the instructions, ability to
follow directions and degree of cooperation in performing the tests. If
the claimant is unable to complete the test, the person executing the
report shall set forth the reasons for such failure;
(6) Paper speed of the instrument used;
(7) Name of the instrument used;
(8) Whether a bronchodilator was administered. If a bronchodilator
is administered, the physician's report must detail values obtained
both before and after administration of the bronchodilator and explain
the significance of the results obtained; and
(9) That the requirements of paragraphs (b) and (c) of this section
have been complied with.
(c) No results of a pulmonary function study shall constitute
evidence of the presence or absence of a respiratory or pulmonary
impairment unless it is conducted and reported in accordance with the
requirements of this section and Appendix B to this part. In the
absence of evidence to the contrary, compliance with the requirements
of Appendix B shall be presumed. In the case of a deceased miner,
special consideration shall be given to noncomplying tests if, in the
opinion of the adjudication officer, the only available tests
demonstrate technically valid results obtained with good cooperation of
the miner.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 718.104 Report of physical examinations.
(a) A report of any physical examination conducted in connection
with a claim shall be prepared on a medical report form supplied by the
Office or in a manner containing substantially the same information.
Any such report shall include the following information and test
results:
(1) The miner's medical and employment history;
(2) All manifestations of chronic respiratory disease;
(3) Any pertinent findings not specifically listed on the form;
(4) If heart disease secondary to lung disease is found, all
symptoms and significant findings;
(5) The results of a chest X-ray conducted and interpreted as
required by Sec. 718.102; and
(6) The results of a pulmonary function test conducted and reported
as required by Sec. 718.103.
(b) In addition to the requirements of paragraph (a), a report of
physical examination may be based on any other procedures such as
electrocardiogram, blood-gas studies conducted and reported as required
by Sec. 718.105, and other blood analyses which, in the physician's
opinion, aid in his or her evaluation of the miner.
(c) In the case of a deceased miner, a report prepared by a
physician who is unavailable, which fails to meet the criteria of
paragraph (a), may be given appropriate consideration and weight by the
adjudicator in light of all relevant evidence provided no report which
does comply with this section is available.
(d) Treating physician. The medical opinion of a miner's treating
physician may be entitled to controlling weight in determining whether
the miner is, or was, totally disabled by pneumoconiosis or died due to
pneumoconiosis. The adjudication officer shall take into consideration
the following factors in weighing the opinion of a treating physician:
(1) Nature of relationship. The opinion of a physician who has
treated the miner for respiratory or pulmonary conditions is entitled
to more weight than a physician who has treated the miner for non-
respiratory conditions;
(2) Duration of relationship. The length of the treatment
relationship demonstrates whether the physician has observed the miner
long enough to obtain a superior understanding of his or her condition;
(3) Frequency of treatment. The frequency of physician-patient
visits demonstrates whether the physician has observed the miner often
enough to obtain a superior understanding of his or her condition; and
(4) Extent of treatment. The types of testing and examinations
conducted during the treatment relationship demonstrate whether the
physician has obtained superior and relevant information concerning the
miner's condition.
(5) Whether controlling weight is given to the opinion of a miner's
treating physician shall also be based on the credibility of the
physician's opinion in light of its reasoning and documentation, other
relevant evidence and the record as a whole.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 718.105 Arterial blood-gas studies.
(a) Blood-gas studies are performed to detect an impairment in the
process of alveolar gas exchange. This defect will manifest itself
primarily as a fall in arterial oxygen tension either at rest or during
exercise. No blood-gas study shall be performed if medically
contraindicated.
(b) A blood-gas study shall initially be administered at rest and
in a sitting position. If the results of the blood-gas test at rest do
not satisfy the requirements of Appendix C to this part, an exercise
blood-gas test shall be offered to the miner unless medically
contraindicated. If an exercise blood-gas test is administered, blood
shall be drawn during exercise.
(c) Any report of a blood-gas study submitted in connection with a
claim shall specify:
(1) Date and time of test;
(2) Altitude and barometric pressure at which the test was
conducted;
(3) Name and DOL claim number of the claimant;
(4) Name of technician;
(5) Name and signature of physician supervising the study;
(6) The recorded values for pCO2, pO2, and pH, which have been
collected simultaneously (specify values at rest and, if performed,
during exercise);
(7) Duration and type of exercise;
(8) Pulse rate at the time the blood sample was drawn;
(9) Time between drawing of sample and analysis of sample; and
(10) Whether equipment was calibrated before and after each test.
(d) If one or more blood-gas studies producing results which meet
the appropriate table in Appendix C is administered during a
hospitalization which ends in the miner's death, then any such study
must be accompanied by a physician's report establishing that the test
results were produced by a chronic respiratory or pulmonary condition
related to coal mine dust exposure, and not by a disease unrelated to
such exposure. Failure to produce such a report will prevent reliance
on the blood-gas study as evidence that the miner was totally disabled
at death.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 718.106 Autopsy; biopsy.
(a) A report of an autopsy or biopsy submitted in connection with a
claim shall include a detailed gross macroscopic and microscopic
description of the lungs or visualized portion of a lung. If a surgical
procedure has been performed to obtain a portion of a lung, the
evidence shall include a copy of the surgical note and the pathology
report of the gross and microscopic examination of the surgical
specimen. If an autopsy has been performed, a complete copy of the
autopsy report shall be submitted to the Office.
(b) In the case of a miner who died prior to March 31, 1980, an
autopsy or
[[Page 3376]]
biopsy report shall be considered even when the report does not
substantially comply with the requirements of this section. A
noncomplying report concerning a miner who died prior to March 31,
1980, shall be accorded the appropriate weight in light of all relevant
evidence.
Sec. 718.107 Other medical evidence.
(a) The results of any medically acceptable test or procedure
reported by a physician and not addressed in this subpart, which tends
to demonstrate the presence or absence of pneumoconiosis, the sequelae
of pneumoconiosis or a respiratory impairment, may be submitted in
connection with a claim and shall be given appropriate consideration.
(b) The party submitting the test or procedure pursuant to this
section bears the burden to demonstrate that the test or procedure is
medically acceptable and relevant to establishing or refuting a
claimant's entitlement to benefits.
Subpart C--Determining Entitlement to Benefits
Sec. 718.201 Definition of pneumoconiosis.
(a) For the purpose of the Act, ``pneumoconiosis'' means a chronic
dust disease of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment. This
definition includes both medical, or ``clinical,'' pneumoconiosis and
statutory, or ``legal,'' pneumoconiosis.
(1) Clinical pneumoconiosis. ``Clinical pneumoconiosis'' consists
of those diseases, recognized by the medical community as
pneumoconioses, i.e., the conditions characterized by permanent
deposition of substantial amounts of particulate matter in the lungs
and the fibrotic reaction of the lung tissue to that deposition caused
by dust exposure in coal mine employment. This definition includes, but
is not limited to, coal workers' pneumoconiosis, anthracosilicosis,
anthracosis, anthrosilicosis, massive pulmonary fibrosis, silicosis or
silicotuberculosis, arising out of coal mine employment.
(2) Legal pneumoconiosis. ``Legal pneumoconiosis'' includes any
chronic lung disease or impairment and its sequelae arising out of coal
mine employment. This definition includes, but is not limited to, any
chronic restrictive or obstructive pulmonary disease arising out of
coal mine employment.
(b) For purposes of this section, a disease ``arising out of coal
mine employment'' includes any chronic pulmonary disease or respiratory
or pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.
(c) For purposes of this definition, ``pneumoconiosis'' is
recognized as a latent and progressive disease which may first become
detectable only after the cessation of coal mine dust exposure.
Sec. 718.202 Determining the existence of pneumoconiosis.
(a) A finding of the existence of pneumoconiosis may be made as
follows:
(1) A chest X-ray conducted and classified in accordance with
Sec. 718.102 may form the basis for a finding of the existence of
pneumoconiosis. Except as otherwise provided in this section, where two
or more X-ray reports are in conflict, in evaluating such X-ray reports
consideration shall be given to the radiological qualifications of the
physicians interpreting such X-rays.
(i) In all claims filed before January 1, 1982, where there is
other evidence of pulmonary or respiratory impairment, a Board-
certified or Board-eligible radiologist's interpretation of a chest X-
ray shall be accepted by the Office if the X-ray is in compliance with
the requirements of Sec. 718.102 and if such X-ray has been taken by a
radiologist or qualified radiologic technologist or technician and
there is no evidence that the claim has been fraudulently represented.
However, these limitations shall not apply to any claim filed on or
after January 1, 1982.
(ii) The following definitions shall apply when making a finding in
accordance with this paragraph.
(A) The term other evidence means medical tests such as blood-gas
studies, pulmonary function studies or physical examinations or medical
histories which establish the presence of a chronic pulmonary,
respiratory or cardio-pulmonary condition, and in the case of a
deceased miner, in the absence of medical evidence to the contrary,
affidavits of persons with knowledge of the miner's physical condition.
(B) Pulmonary or respiratory impairment means inability of the
human respiratory apparatus to perform in a normal manner one or more
of the three components of respiration, namely, ventilation, perfusion
and diffusion.
(C) Board-certified means certification in radiology or diagnostic
roentgenology by the American Board of Radiology, Inc. or the American
Osteopathic Association.
(D) Board-eligible means the successful completion of a formal
accredited residency program in radiology or diagnostic roentgenology.
(E) Certified `B' reader or `B' reader means a physician who has
demonstrated proficiency in evaluating chest roentgenograms for
roentgenographic quality and in the use of the ILO-U/C classification
for interpreting chest roentgenograms for pneumoconiosis and other
diseases by taking and passing a specially designed proficiency
examination given on behalf of or by the Appalachian Laboratory for
Occupational Safety and Health. See 42 CFR 37.51(b)(2).
(F) Qualified radiologic technologist or technician means an
individual who is either certified as a registered technologist by the
American Registry of Radiologic Technologists or licensed as a
radiologic technologist by a state licensing board.
(2) A biopsy or autopsy conducted and reported in compliance with
Sec. 718.106 may be the basis for a finding of the existence of
pneumoconiosis. A finding in an autopsy or biopsy of anthracotic
pigmentation, however, shall not be sufficient, by itself, to establish
the existence of pneumoconiosis. A report of autopsy shall be accepted
unless there is evidence that the report is not accurate or that the
claim has been fraudulently represented.
(3) If the presumptions described in Secs. 718.304, 718.305 or
718.306 are applicable, it shall be presumed that the miner is or was
suffering from pneumoconiosis.
(4) A determination of the existence of pneumoconiosis may also be
made if a physician, exercising sound medical judgment, notwithstanding
a negative X-ray, finds that the miner suffers or suffered from
pneumoconiosis as defined in Sec. 718.201. Any such finding shall be
based on objective medical evidence such as blood-gas studies,
electrocardiograms, pulmonary function studies, physical performance
tests, physical examination, and medical and work histories. Such a
finding shall be supported by a reasoned medical opinion.
(b) No claim for benefits shall be denied solely on the basis of a
negative chest X-ray.
(c) A determination of the existence of pneumoconiosis shall not be
made solely on the basis of a living miner's statements or testimony.
Nor shall such a determination be made upon a claim involving a
deceased miner filed on or after January 1, 1982, solely based upon the
affidavit(s) (or equivalent sworn testimony) of the claimant and/or his
or
[[Page 3377]]
her dependents who would be eligible for augmentation of the claimant's
benefits if the claim were approved.
Sec. 718.203 Establishing relationship of pneumoconiosis to coal mine
employment.
(a) In order for a claimant to be found eligible for benefits under
the Act, it must be determined that the miner's pneumoconiosis arose at
least in part out of coal mine employment. The provisions in this
section set forth the criteria to be applied in making such a
determination.
(b) If a miner who is suffering or suffered from pneumoconiosis was
employed for ten years or more in one or more coal mines, there shall
be a rebuttable presumption that the pneumoconiosis arose out of such
employment.
(c) If a miner who is suffering or suffered from pneumoconiosis was
employed less than ten years in the nation's coal mines, it shall be
determined that such pneumoconiosis arose out of that employment only
if competent evidence establishes such a relationship.
Sec. 718.204 Total disability and disability causation defined;
criteria for determining total disability and total disability due to
pneumoconiosis.
(a) General. Benefits are provided under the Act for or on behalf
of miners who are totally disabled due to pneumoconiosis, or who were
totally disabled due to pneumoconiosis at the time of death. For
purposes of this section, any nonpulmonary or nonrespiratory condition
or disease, which causes an independent disability unrelated to the
miner's pulmonary or respiratory disability, shall not be considered in
determining whether a miner is totally disabled due to pneumoconiosis.
If, however, a nonpulmonary or nonrespiratory condition or disease
causes a chronic respiratory or pulmonary impairment, that condition or
disease shall be considered in determining whether the miner is or was
totally disabled due to pneumoconiosis.
(b)(1) Total disability defined. A miner shall be considered
totally disabled if the irrebuttable presumption described in
Sec. 718.304 applies. If that presumption does not apply, a miner shall
be considered totally disabled if the miner has a pulmonary or
respiratory impairment which, standing alone, prevents or prevented the
miner:
(i) From performing his or her usual coal mine work; and
(ii) From engaging in gainful employment in the immediate area of
his or her residence requiring the skills or abilities comparable to
those of any employment in a mine or mines in which he or she
previously engaged with some regularity over a substantial period of
time.
(2) Medical criteria. In the absence of contrary probative
evidence, evidence which meets the standards of either paragraphs
(b)(2) (i), (ii), (iii), or (iv) of this section shall establish a
miner's total disability:
(i) Pulmonary function tests showing values equal to or less than
those listed in Table B1 (Males) or Table B2 (Females) in Appendix B to
this part for an individual of the miner's age, sex, and height for the
FEV1 test; if, in addition, such tests also reveal the values specified
in either paragraph (b)(2)(i) (A) or (B) or (C) of this section:
(A) Values equal to or less than those listed in Table B3 (Males)
or Table B4 (Females) in Appendix B of this part, for an individual of
the miner's age, sex, and height for the FVC test, or
(B) Values equal to or less than those listed in Table B5 (Males)
or Table B6 (Females) in Appendix B to this part, for an individual of
the miner's age, sex, and height for the MVV test, or
(C) A percentage of 55 or less when the results of the FEV1 test
are divided by the results of the FVC test (FEV1/FVC equal to or less
than 55%), or
(ii) Arterial blood-gas tests show the values listed in Appendix C
to this part, or
(iii) The miner has pneumoconiosis and has been shown by the
medical evidence to be suffering from cor pulmonale with right-sided
congestive heart failure, or
(iv) A physician exercising reasoned medical judgment, based on
medically acceptable clinical and laboratory diagnostic techniques,
concludes that a miner's respiratory or pulmonary condition prevents or
prevented the miner from engaging in employment as described in
paragraph (b)(1) of this section.
(c)(1) Total disability due to pneumoconiosis defined. A miner
shall be considered totally disabled due to pneumoconiosis if
pneumoconiosis, as defined in Sec. 718.201, is a substantially
contributing cause of the miner's totally disabling respiratory or
pulmonary impairment. Pneumoconiosis is a ``substantially contributing
cause'' of the miner's disability if it:
(i) Has an adverse effect on the miner's respiratory or pulmonary
condition; or
(ii) Worsens a totally disabling respiratory or pulmonary
impairment which is caused by a disease or exposure unrelated to coal
mine employment.
(2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of
this section, proof that the miner suffers or suffered from a totally
disabling respiratory or pulmonary impairment as defined in paragraphs
(b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by
itself, be sufficient to establish that the miner's impairment is or
was due to pneumoconiosis. Except as provided in paragraph (d), the
cause or causes of a miner's total disability shall be established by
means of a physician's documented and reasoned medical report.
(d) Lay evidence. In establishing total disability, lay evidence
may be used in the following cases:
(1) In a case involving a deceased miner in which the claim was
filed prior to January 1, 1982, affidavits (or equivalent sworn
testimony) from persons knowledgeable of the miner's physical condition
shall be sufficient to establish total (or under Sec. 718.306 partial)
disability due to pneumoconiosis if no medical or other relevant
evidence exists which addresses the miner's pulmonary or respiratory
condition.
(2) In a case involving a survivor's claim filed on or after
January 1, 1982, but prior to June 30, 1982, which is subject to
Sec. 718.306, affidavits (or equivalent sworn testimony) from persons
knowledgeable of the miner's physical condition shall be sufficient to
establish total or partial disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of the claimant
and/or his or her dependents who would be eligible for augmentation of
the claimant's benefits if the claim were approved.
(3) In a case involving a deceased miner whose claim was filed on
or after January 1, 1982, affidavits (or equivalent sworn testimony)
from persons knowledgeable of the miner's physical condition shall be
sufficient to establish total disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of any person who
would be eligible for benefits (including augmented benefits) if the
claim were approved.
(4) Statements made before death by a deceased miner about his or
her physical condition are relevant and shall be considered in making a
[[Page 3378]]
determination as to whether the miner was totally disabled at the time
of death.
(5) In the case of a living miner's claim, a finding of total
disability due to pneumoconiosis shall not be made solely on the
miner's statements or testimony.
(e) In determining total disability to perform usual coal mine
work, the following shall apply in evaluating the miner's employment
activities:
(1) In the case of a deceased miner, employment in a mine at the
time of death shall not be conclusive evidence that the miner was not
totally disabled. To disprove total disability, it must be shown that
at the time the miner died, there were no changed circumstances of
employment indicative of his or her reduced ability to perform his or
her usual coal mine work.
(2) In the case of a living miner, proof of current employment in a
coal mine shall not be conclusive evidence that the miner is not
totally disabled unless it can be shown that there are no changed
circumstances of employment indicative of his or her reduced ability to
perform his or her usual coal mine work.
(3) Changed circumstances of employment indicative of a miner's
reduced ability to perform his or her usual coal mine work may include
but are not limited to:
(i) The miner's reduced ability to perform his or her customary
duties without help; or
(ii) The miner's reduced ability to perform his or her customary
duties at his or her usual levels of rapidity, continuity or
efficiency; or
(iii) The miner's transfer by request or assignment to less
vigorous duties or to duties in a less dusty part of the mine.
Sec. 718.205 Death due to pneumoconiosis.
(a) Benefits are provided to eligible survivors of a miner whose
death was due to pneumoconiosis. In order to receive benefits, the
claimant must prove that:
(1) The miner had pneumoconiosis (see Sec. 718.202);
(2) The miner's pneumoconiosis arose out of coal mine employment
(see Sec. 718.203); and
(3) The miner's death was due to pneumoconiosis as provided by this
section.
(b) For the purpose of adjudicating survivors' claims filed prior
to January 1, 1982, death will be considered due to pneumoconiosis if
any of the following criteria is met:
(1) Where competent medical evidence established that the miner's
death was due to pneumoconiosis, or
(2) Where death was due to multiple causes including pneumoconiosis
and it is not medically feasible to distinguish which disease caused
death or the extent to which pneumoconiosis contributed to the cause of
death, or
(3) Where the presumption set forth at Sec. 718.304 is applicable,
or
(4) Where either of the presumptions set forth at Sec. 718.303 or
Sec. 718.305 is applicable and has not been rebutted.
(5) Where the cause of death is significantly related to or
aggravated by pneumoconiosis.
(c) For the purpose of adjudicating survivors' claims filed on or
after January 1, 1982, death will be considered to be due to
pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence establishes that
pneumoconiosis was the cause of the miner's death, or
(2) Where pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death or where the death was caused by
complications of pneumoconiosis, or
(3) Where the presumption set forth at Sec. 718.304 is applicable.
(4) However, survivors are not eligible for benefits where the
miner's death was caused by a traumatic injury or the principal cause
of death was a medical condition not related to pneumoconiosis, unless
the evidence establishes that pneumoconiosis was a substantially
contributing cause of death.
(5) Pneumoconiosis is a ``substantially contributing cause'' of a
miner's death if it hastens the miner's death.
(d) To minimize the hardships to potentially entitled survivors due
to the disruption of benefits upon the miner's death, survivors' claims
filed on or after January 1, 1982, shall be adjudicated on an expedited
basis in accordance with the following procedures. The initial burden
is upon the claimant, with the assistance of the district director, to
develop evidence which meets the requirements of paragraph (c) of this
section. Where the initial medical evidence appears to establish that
death was due to pneumoconiosis, the survivor will receive benefits
unless the weight of the evidence as subsequently developed by the
Department or the responsible operator establishes that the miner's
death was not due to pneumoconiosis as defined in paragraph (c).
However, no such benefits shall be found payable before the party
responsible for the payment of such benefits shall have had a
reasonable opportunity for the development of rebuttal evidence. See
Sec. 725.414 concerning the operator's opportunity to develop evidence
prior to an initial determination.
Sec. 718.206 Effect of findings by persons or agencies.
Decisions, statements, reports, opinions, or the like, of agencies,
organizations, physicians or other individuals, about the existence,
cause, and extent of a miner's disability, or the cause of a miner's
death, are admissible. If properly submitted, such evidence shall be
considered and given the weight to which it is entitled as evidence
under all the facts before the adjudication officer in the claim.
Subpart D--Presumptions Applicable to Eligibility Determinations
Sec. 718.301 Establishing length of employment as a miner.
The presumptions set forth in Secs. 718.302, 718.303, 718.305 and
718.306 apply only if a miner worked in one or more coal mines for the
number of years required to invoke the presumption. The length of the
miner's coal mine work history must be computed as provided by 20 CFR
725.101(a)(32).
Sec. 718.302 Relationship of pneumoconiosis to coal mine employment.
If a miner who is suffering or suffered from pneumoconiosis was
employed for ten years or more in one or more coal mines, there shall
be a rebuttable presumption that the pneumoconiosis arose out of such
employment. (See Sec. 718.203.)
Sec. 718.303 Death from a respirable disease.
(a)(1) If a deceased miner was employed for ten or more years in
one or more coal mines and died from a respirable disease, there shall
be a rebuttable presumption that his or her death was due to
pneumoconiosis.
(2) Under this presumption, death shall be found due to a
respirable disease in any case in which the evidence establishes that
death was due to multiple causes, including a respirable disease, and
it is not medically feasible to distinguish which disease caused death
or the extent to which the respirable disease contributed to the cause
of death.
(b) The presumption of paragraph (a) of this section may be
rebutted by a showing that the deceased miner did not have
pneumoconiosis, that his or her death was not due to pneumoconiosis or
that pneumoconiosis did not contribute to his or her death.
(c) This section is not applicable to any claim filed on or after
January 1, 1982.
[[Page 3379]]
Sec. 718.304 Irrebuttable presumption of total disability or death due
to pneumoconiosis.
There is an irrebuttable presumption that a miner is totally
disabled due to pneumoconiosis, that a miner's death was due to
pneumoconiosis or that a miner was totally disabled due to
pneumoconiosis at the time of death, if such miner is suffering or
suffered from a chronic dust disease of the lung which:
(a) When diagnosed by chest X-ray (see Sec. 718.202 concerning the
standards for X-rays and the effect of interpretations of X-rays by
physicians) yields one or more large opacities (greater than 1
centimeter in diameter) and would be classified in Category A, B, or C
in:
(1) The ILO-U/C International Classification of Radiographs of the
Pneumoconioses, 1971, or subsequent revisions thereto; or
(2) The International Classification of the Radiographs of the
Pneumoconioses of the International Labour Office, Extended
Classification (1968) (which may be referred to as the ``ILO
Classification (1968)''); or
(3) The Classification of the Pneumoconioses of the Union
Internationale Contra Cancer/Cincinnati (1968) (which may be referred
to as the ``UICC/Cincinnati (1968) Classification''); or
(b) When diagnosed by biopsy or autopsy, yields massive lesions in
the lung; or
(c) When diagnosed by means other than those specified in
paragraphs (a) and (b) of this section, would be a condition which
could reasonably be expected to yield the results described in
paragraph (a) or (b) of this section had diagnosis been made as therein
described: Provided, however, That any diagnosis made under this
paragraph shall accord with acceptable medical procedures.
Sec. 718.305 Presumption of pneumoconiosis.
(a) If a miner was employed for fifteen years or more in one or
more underground coal mines, and if there is a chest X-ray submitted in
connection with such miner's or his or her survivor's claim and it is
interpreted as negative with respect to the requirements of
Sec. 718.304, and if other evidence demonstrates the existence of a
totally disabling respiratory or pulmonary impairment, then there shall
be a rebuttable presumption that such miner is totally disabled due to
pneumoconiosis, that such miner's death was due to pneumoconiosis, or
that at the time of death such miner was totally disabled by
pneumoconiosis. In the case of a living miner's claim, a spouse's
affidavit or testimony may not be used by itself to establish the
applicability of the presumption. The Secretary shall not apply all or
a portion of the requirement of this paragraph that the miner work in
an underground mine where it is determined that conditions of the
miner's employment in a coal mine were substantially similar to
conditions in an underground mine. The presumption may be rebutted only
by establishing that the miner does not, or did not, have
pneumoconiosis, or that his or her respiratory or pulmonary impairment
did not arise out of, or in connection with, employment in a coal mine.
(b) In the case of a deceased miner, where there is no medical or
other relevant evidence, affidavits of persons having knowledge of the
miner's condition shall be considered to be sufficient to establish the
existence of a totally disabling respiratory or pulmonary impairment
for purposes of this section.
(c) The determination of the existence of a totally disabling
respiratory or pulmonary impairment, for purposes of applying the
presumption described in this section, shall be made in accordance with
Sec. 718.204.
(d) Where the cause of death or total disability did not arise in
whole or in part out of dust exposure in the miner's coal mine
employment or the evidence establishes that the miner does not or did
not have pneumoconiosis, the presumption will be considered rebutted.
However, in no case shall the presumption be considered rebutted on the
basis of evidence demonstrating the existence of a totally disabling
obstructive respiratory or pulmonary disease of unknown origin.
(e) This section is not applicable to any claim filed on or after
January 1, 1982.
Sec. 718.306 Presumption of entitlement applicable to certain death
claims.
(a) In the case of a miner who died on or before March 1, 1978, who
was employed for 25 or more years in one or more coal mines prior to
June 30, 1971, the eligible survivors of such miner whose claims have
been filed prior to June 30, 1982, shall be entitled to the payment of
benefits, unless it is established that at the time of death such miner
was not partially or totally disabled due to pneumoconiosis. Eligible
survivors shall, upon request, furnish such evidence as is available
with respect to the health of the miner at the time of death, and the
nature and duration of the miner's coal mine employment.
(b) For the purpose of this section, a miner will be considered to
have been ``partially disabled'' if he or she had reduced ability to
engage in work as defined in Sec. 718.204(b).
(c) In order to rebut this presumption the evidence must
demonstrate that the miner's ability to perform work as defined in
Sec. 718.204(b) was not reduced at the time of his or her death or that
the miner did not have pneumoconiosis.
(d) None of the following items, by itself, shall be sufficient to
rebut the presumption:
(1) Evidence that a deceased miner was employed in a coal mine at
the time of death;
(2) Evidence pertaining to a deceased miner's level of earnings
prior to death;
(3) A chest X-ray interpreted as negative for the existence of
pneumoconiosis;
(4) A death certificate which makes no mention of pneumoconiosis.
Appendix A to Part 718-Standards for Administration and Interpretation
of Chest Roentgenograms (X-rays)
The following standards are established in accordance with
sections 402(f)(1)(D) and 413(b) of the Act. They were developed in
consultation with the National Institute for Occupational Safety and
Health. These standards are promulgated for the guidance of
physicians and medical technicians to insure that uniform procedures
are used in administering and interpreting X-rays and that the best
available medical evidence will be submitted in connection with a
claim for black lung benefits. If it is established that one or more
standards have not been met, the claims adjudicator may consider
such fact in determining the evidentiary weight to be assigned to
the physician's report of an X-ray.
(1) Every chest roentgenogram shall be a single postero-anterior
projection at full inspiration on a 14 by 17 inch film. Additional
chest films or views shall be obtained if they are necessary for
clarification and classification. The film and cassette shall be
capable of being positioned both vertically and horizontally so that
the chest roentgenogram will include both apices and costophrenic
angles. If a miner is too large to permit the above requirements,
then a projection with minimum loss of costophrenic angle shall be
made.
(2) Miners shall be disrobed from the waist up at the time the
roentgenogram is given. The facility shall provide a dressing area
and, for those miners who wish to use one, the facility shall
provide a clean gown. Facilities shall be heated to a comfortable
temperature.
(3) Roentgenograms shall be made only with a diagnostic X-ray
machine having a rotating anode tube with a maximum of a 2 mm source
(focal spot).
(4) Except as provided in paragraph (5), roentgenograms shall be
made with units having generators which comply with the following:
(a) the generators of existing roentgenographic units acquired by
the examining facility prior to July 27, 1973, shall have a minimum
rating of 200 mA at
[[Page 3380]]
100 kVp; (b) generators of units acquired subsequent to that date
shall have a minimum rating of 300 mA at 125 kVp.
Note: A generator with a rating of 150 kVp is recommended.
(5) Roentgenograms made with battery-powered mobile or portable
equipment shall be made with units having a minimum rating of 100 mA
at 110 kVp at 500 Hz, or 200 mA at 110 kVp at 60 Hz.
(6) Capacitor discharge, and field emission units may be used.
(7) Roentgenograms shall be given only with equipment having a
beam-limiting device which does not cause large unexposed
boundaries. The use of such a device shall be discernible from an
examination of the roentgenogram.
(8) To insure high quality chest roentgenograms:
(i) The maximum exposure time shall not exceed 1/20 of a second
except that with single phase units with a rating less than 300 mA
at 125 kVp and subjects with chest over 28 cm postero-anterior, the
exposure may be increased to not more than 1/10 of a second;
(ii) The source or focal spot to film distance shall be at least
6 feet;
(iii) Only medium-speed film and medium-speed intensifying
screens shall be used;
(iv) Film-screen contact shall be maintained and verified at 6-
month or shorter intervals;
(v) Intensifying screens shall be inspected at least once a
month and cleaned when necessary by the method recommended by the
manufacturer;
(vi) All intensifying screens in a cassette shall be of the same
type and made by the same manufacturer;
(vii) When using over 90 kV, a suitable grid or other means of
reducing scattered radiation shall be used;
(viii) The geometry of the radiographic system shall insure that
the central axis (ray) of the primary beam is perpendicular to the
plane of the film surface and impinges on the center of the film.
(9) Radiographic processing:
(i) Either automatic or manual film processing is acceptable. A
constant time-temperature technique shall be meticulously employed
for manual processing.
(ii) If mineral or other impurities in the processing water
introduce difficulty in obtaining a high-quality roentgenogram, a
suitable filter or purification system shall be used.
(10) Before the miner is advised that the examination is
concluded, the roentgenogram shall be processed and inspected and
accepted for quality by the physician, or if the physician is not
available, acceptance may be made by the radiologic technologist. In
a case of a substandard roentgenogram, another shall be made
immediately.
(11) An electric power supply shall be used which complies with
the voltage, current, and regulation specified by the manufacturer
of the machine.
(12) A densitometric test object may be required on each
roentgenogram for an objective evaluation of film quality at the
discretion of the Department of Labor.
(13) Each roentgenogram made hereunder shall be permanently and
legibly marked with the name and address of the facility at which it
is made, the miner's DOL claim number, the date of the
roentgenogram, and left and right side of film. No other identifying
markings shall be recorded on the roentgenogram.
Appendix B to Part 718--Standards for Administration and Interpretation
of Pulmonary Function Tests
Tables B1, B2, B3, B4, B5, B6
The following standards are established in accordance with
section 402(f)(1)(D) of the Act. They were developed in consultation
with the National Institute for Occupational Safety and Health
(NIOSH). These standards are promulgated for the guidance of
physicians and medical technicians to insure that uniform procedures
are used in administering and interpreting ventilatory function
tests and that the best available medical evidence will be submitted
in support of a claim for black lung benefits. If it is established
that one or more standards have not been met, the claims adjudicator
may consider such fact in determining the evidentiary weight to be
given to the results of the ventilatory function tests.
(1) Instruments to be used for the administration of pulmonary
function tests shall be approved by NIOSH and shall conform to the
following criteria:
(i) The instrument shall be accurate within +/-50 ml or within
+/-3 percent of reading, whichever is greater.
(ii) The instrument shall be capable of measuring vital capacity
from 0 to 7 liters BTPS.
(iii) The instrument shall have a low inertia and offer low
resistance to airflow such that the resistance to airflow at 12
liters per second must be less than 1.5 cm H2O/liter/sec.
(iv) The zero time point for the purpose of timing the FEV1
shall be determined by extrapolating the steepest portion of the
volume-time curve back to the maximal inspiration volume or by an
equivalent method.
(v) Instruments incorporating measurements of airflow to
determine volume shall conform to the same volume accuracy stated in
subparagraph (1)(i) of this Appendix B when presented with flow
rates from at least 0 to 12 liters per second.
(vi) The instrument or user of the instrument must have a means
of correcting volumes to body temperature saturated with water vapor
(BTPS) under conditions of varying ambient spirometer temperatures
and barometric pressures.
(vii) The instrument used shall provide a tracing of either flow
versus volume or volume versus time during the entire forced
expiration and volume versus time during the MVV maneuver. A tracing
is necessary to determine whether the patient has performed the test
properly. The tracing must be of sufficient size that hand
measurements may be made within the requirement of subparagraph
(1)(i) of this Appendix B. If a paper record is made it must have a
paper speed of at least 2 cm/sec and a volume sensitivity of at
least 10.0 mm of chart per liter of volume. The recorder tracing
must display the entire FVC maneuver at a constant speed for at
least 10 seconds after the onset of exhalation. This constant speed
must be reached prior to the onset of exhalation.
(viii) The instrument shall be capable of accumulating volume
for a minimum of 10 seconds after the onset of exhalation.
(ix) The forced expiratory volume in 1 sec (FEV1) measurement
shall comply with the accuracy requirements stated in subparagraph
(1)(i) of this Appendix B. That is, they shall be accurately
measured to within 50 ml or with 3 percent
of reading, whichever is greater.
(x) The instrument must be capable of being calibrated in the
field with respect to the FEV1. This calibration of the FEV1 may be
done either directly or indirectly through volume and time base
measurements. The volume calibration source shall provide a volume
displacement of at least 3 liters and shall be accurate to within
30 ml.
(xi) For measuring maximum voluntary ventilation (MVV) the
instrument shall have a response which is flat within
10 percent up to 4 Hz at flow rates up to 12 liters per second over
the volume range. The time for exhaled volume integration or
recording shall be no less than 12 sec. and no more than 15 sec. The
indicated time shall be accurate to within 3 percent.
A recording of the spirometer tracing is required, and the
volume sensitivity shall be such that 10 mm or more deflection
corresponds to 1 liter volume.
(2) The administration of pulmonary function tests shall conform
to the following criteria:
(i) Tests shall not be performed during or soon after an acute
respiratory illness.
(ii) For the FEV1 and FVC, use of a nose clip is required. The
procedures shall be explained in simple terms to the patient who
shall be instructed to loosen any tight clothing and stand in front
of the apparatus. The subject may sit, or stand, but care should be
taken on repeat testing that the same position be used. Particular
attention shall be given to insure that the chin is slightly
elevated with the neck slightly extended. The patient shall be
instructed to make a full inspiration from the spirometer, using a
normal breathing pattern and then blow into the apparatus, without
interruption, as hard, fast, and completely as possible. At least
three forced expirations shall be carried out. During the maneuvers,
the patient shall be observed for compliance with instructions. The
expirations shall be checked visually for reproducibility from the
flow-volume or volume-time tracings. The effort shall be judged
unacceptable when the patient:
(A) Has not reached full inspiration preceding the forced
expiration; or
(B) Has not used maximal effort during the entire forced
expiration; or
(C) Has not continued the expiration for at least 5 sec. or
until an obvious plateau in the volume-time curve has occurred; or
(D) Has coughed or closed his glottis; or
(E) Has an obstructed mouthpiece or a leak around the mouthpiece
(obstruction due to tongue being placed in front of mouthpiece,
false teeth falling in front of mouthpiece, etc.); or
(F) Has an unsatisfactory start of expiration, one characterized
by excessive
[[Page 3381]]
hesitation (or false starts), and therefore not allowing back
extrapolation of time 0 (extrapolated volume on the volume-time
tracing must be less than 10 percent of the FVC); or
(G) Has an excessive variability between the three acceptable
curves. The variation between the two largest FEV1's of the three
acceptable tracings should not exceed 5 percent of the largest FEV1
or 100 ml, whichever is greater.
(iii) For the MVV, the subject shall be instructed before
beginning the test that he or she will be asked to breathe as deeply
and as rapidly as possible for approximately 15 seconds.
The test shall be performed with the subject in the standing
position, if possible. Care shall be taken on repeat testing that
the same position be used. The subject shall breathe normally into
the mouthpiece of the apparatus for 10 to 15 seconds to become
accustomed to the system. The subject shall then be instructed to
breathe as deeply and as rapidly as possible, and shall be
continually encouraged during the remainder of the maneuver. Subject
shall continue the maneuver for 15 seconds. At least 5 minutes of
rest shall be allowed between maneuvers. At least three MVV's shall
be carried out. (But see Sec. 718.103(b).) During the maneuvers the
patient shall be observed for compliance with instructions. The
effort shall be judged unacceptable when the patient:
(A) Has not maintained consistent effort for at least 12 to 15
seconds; or
(B) Has coughed or closed his glottis; or
(C) Has an obstructed mouthpiece or a leak around the mouthpiece
(obstruction due to tongue being placed in front of mouthpiece,
false teeth falling in front of mouthpiece, etc.); or
(D) Has an excessive variability between the three acceptable
curves. The variation between the two largest MVV's of the three
satisfactory tracings shall not exceed 10 percent.
(iv) A calibration check shall be performed on the instrument
each day before use, using a volume source of at least three liters,
accurate to within 1 percent of full scale. The room air
in the syringe is introduced into the spirometer once with a flow
rate of approximately 0.5 liters per second (six seconds emptying
time with a 3-liter syringe) and once with a higher flow rate of
approximately 3.0 liters per second (one second emptying time with a
3-liter syringe). The volume measured by the spirometer shall be
between 2.90 and 3.10 liters for both trials. Accuracy of the time
measurement used in determining the FEV1 shall be checked using the
manufacturer's stated procedure and shall be within 3
percent of actual. The procedure described herein shall be performed
as well as any other procedures suggested by the manufacturer of the
spirometer being used.
(v)(A) The first step in evaluating a spirogram for the FEV1
shall be to determine whether or not the patient has performed the
test properly or as described in (2)(ii) above. From the three
satisfactory tracings, the forced expiratory volume in one second
(FEV1) shall be measured and recorded. The largest observed FEV1
shall be used in the analysis, corrected to BTPS.
(B) Only MVV maneuvers which demonstrate consistent effort for
at least 12 seconds shall be considered acceptable. The largest
accumulated volume for a 12 second period corrected to BTPS and
multiplied by five is to be reported as the MVV.
* * * * *
Appendix C to Part 718--Blood-Gas Tables
The following tables set forth the values to be applied in
determining whether total disability may be established in
accordance with Secs. 718.204(b)(2)(ii) and 718.305(a) and (c). The
values contained in the tables are indicative of impairment only.
They do not establish a degree of disability except as provided in
Secs. 718.204(b)(2)(ii) and 718.305 (a) and (c) of this subchapter,
nor do they establish standards for determining normal alveolar gas
exchange values for any particular individual. Tests shall not be
performed during or soon after an acute respiratory or cardiac
illness.
A miner who meets the following medical specifications shall be
found to be totally disabled, in the absence of rebutting evidence,
if the values specified in one of the following tables are met:
(1) For arterial blood-gas studies performed at test sites up to
2,999 feet above sea level:
------------------------------------------------------------------------
Arterial
pO2 equal
Arterial pCO2 (mm Hg) to or less
than (mm
Hg)
------------------------------------------------------------------------
25 or below................................................ 75
26......................................................... 74
27......................................................... 73
28......................................................... 72
29......................................................... 71
30......................................................... 70
31......................................................... 69
32......................................................... 68
33......................................................... 67
34......................................................... 66
35......................................................... 65
36......................................................... 64
37......................................................... 63
38......................................................... 62
39......................................................... 61
40-49...................................................... 60
Above 50................................................... (1)
------------------------------------------------------------------------
(1) Any value.
(2) For arterial blood-gas studies performed at test sites 3,000
to 5,999 feet above sea level:
------------------------------------------------------------------------
Arterial
pO2 equal
Arterial pCO2 (mm Hg) to or less
than (mm
Hg)
------------------------------------------------------------------------
25 or below................................................ 70
26......................................................... 69
27......................................................... 68
28......................................................... 67
29......................................................... 66
30......................................................... 65
31......................................................... 64
32......................................................... 63
33......................................................... 62
34......................................................... 61
35......................................................... 60
36......................................................... 59
37......................................................... 58
38......................................................... 57
39......................................................... 56
40-49...................................................... 55
Above 50................................................... (2)
------------------------------------------------------------------------
(2) Any value.
(3) For arterial blood-gas studies performed at test sites 6,000
feet or more above sea level:
------------------------------------------------------------------------
Arterial
pO2 equal
Arterial pCO2 (mm Hg) to or less
than (mm
Hg)
------------------------------------------------------------------------
25 or below................................................ 65
26......................................................... 64
27......................................................... 63
28......................................................... 62
29......................................................... 61
30......................................................... 60
31......................................................... 59
32......................................................... 58
33......................................................... 57
34......................................................... 56
35......................................................... 55
36......................................................... 54
37......................................................... 53
38......................................................... 52
39......................................................... 51
40-49...................................................... 50
Above 50................................................... (3)
------------------------------------------------------------------------
(3) Any value.
3. Part 722 is proposed to be revised as follows.
PART 722--CRITERIA FOR DETERMINING WHETHER STATE WORKERS'
COMPENSATION LAWS PROVIDE ADEQUATE COVERAGE FOR PNEUMOCONIOSIS AND
LISTING OF APPROVED STATE LAWS
Sec.
722.1 Purpose.
722.2 Definitions.
722.3 General criteria; inclusion in and removal from the
Secretary's list.
722.4 The Secretary's list.
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 921, 932, 936; 33 U.S.C. 901 et
seq., Secretary's Order 7-87, 52 FR 48466, Employment Standards
Order No. 90-02.
Sec. 722.1 Purpose.
Section 421 of the Black Lung Benefits Act provides that a claim
for benefits based on the total disability or death of a coal miner due
to pneumoconiosis must be filed under a State workers' compensation law
where such law provides adequate coverage for pneumoconiosis. A State
workers' compensation law may be deemed to provide adequate coverage
only when it is included on a list of such laws maintained by the
Secretary. The purpose of this part is to set forth the
[[Page 3382]]
procedures and criteria for inclusion on that list, and to provide that
list.
Sec. 722.2 Definitions.
(a) The definitions and use of terms contained in subpart A of part
725 of this title shall be applicable to this part.
(b) For purposes of this part, the following definitions apply:
(1) State agency means, with respect to any State, the agency,
department or officer designated by the workers' compensation law of
the State to administer such law. In any case in which more than one
agency participates in the administration of a State workers'
compensation law, the Governor of the State may designate which of the
agencies shall be the State agency for purposes of this part.
(2) The Secretary's list means the list published by the Secretary
of Labor in the Federal Register (see Sec. 722.4) containing the names
of those States which have in effect a workers' compensation law which
provides adequate coverage for death or total disability due to
pneumoconiosis.
Sec. 722.3 General criteria; inclusion in and removal from the
Secretary's list.
(a) The Governor of any State or any duly authorized State agency
may, at any time, request that the Secretary include such State's
workers' compensation law on his list of those State workers'
compensation laws providing adequate coverage for total disability or
death due to pneumoconiosis. Each such request shall include a copy of
the State workers' compensation law and any other pertinent State laws,
a copy of any regulations, either proposed or promulgated, implementing
such laws; and a copy of any administrative or court decision
interpreting such laws or regulations, or, if such decisions are
published in a readily available report, a citation to such decision.
(b) Upon receipt of a request that a State be included on the
Secretary's list, the Secretary shall include the State on the list if
he finds that the State's workers' compensation law guarantees the
payment of monthly and medical benefits to all persons who would be
entitled to such benefits under the Black Lung Benefits Act at the time
of the request, at a rate no less than that provided by the Black Lung
Benefits Act. The criteria used by the Secretary in making such
determination shall include, but shall not be limited to, the criteria
set forth in section 421(b)(2) of the Act.
(c) The Secretary may require each State included on the list to
submit reports detailing the extent to which the State's workers'
compensation laws, as reflected by statute, regulation, or
administrative or court decision, continues to meet the requirements of
paragraph (b) of this section. If the Secretary concludes that the
State's workers' compensation law does not provide adequate coverage at
any time, either because of changes to the State workers' compensation
law or the Black Lung Benefits Act, he shall remove the State from the
Secretary's list after providing the State with notice of such removal
and an opportunity to be heard.
Sec. 722.4 The Secretary's list.
(a) The Secretary has determined that publication of the
Secretary's list in the Code of Federal Regulations is appropriate.
Accordingly, in addition to its publication in the Federal Register as
required by section 421 of the Black Lung Benefits Act, the list shall
also appear in paragraph (b) of this section.
(b) Upon review of all requests filed with the Secretary under
section 421 of the Black Lung Benefits Act and this part, and
examination of the workers' compensation laws of the States making such
requests, the Secretary has determined that the workers' compensation
law of each of the following listed States, for the period from the
date shown in the list until such date as the Secretary may make a
contrary determination, provides adequate coverage for pneumoconiosis.
State Period commencing
None............................................................
4. Part 725 is proposed to be revised as follows:
PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE
FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED
Subpart A--General
Sec.
725.1 Statutory provisions.
725.2 Purpose and applicability of this part.
725.3 Contents of this part.
725.4 Applicability of other parts in this title.
725.101 Definitions and use of terms.
725.102 Disclosure of program information.
725.103 Burden of proof.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration of
Entitlement
725.201 Who is entitled to benefits; contents of this subpart.
Conditions and Duration of Entitlement: Miner
725.202 Miner defined; conditions of entitlement, miner.
725.203 Duration and cessation of entitlement, miner.
Conditions and Duration of Entitlement: Miner's Dependents (Augmented
Benefits)
725.204 Determination of relationship; spouse.
725.205 Determination of dependency; spouse.
725.206 Determination of relationship; divorced spouse.
725.207 Determination of dependency; divorced spouse.
725.208 Determination of relationship; child.
725.209 Determination of dependency; child.
725.210 Duration of augmented benefits.
725.211 Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
Conditions and Duration of Entitlement: Miner's Survivors
725.212 Conditions of entitlement; surviving spouse or surviving
divorced spouse.
725.213 Duration of entitlement; surviving spouse or surviving
divorced spouse.
725.214 Determination of relationship; surviving spouse.
725.215 Determination of dependency; surviving spouse.
725.216 Determination of relationship; surviving divorced spouse.
725.217 Determination of dependency; surviving divorced spouse.
725.218 Conditions of entitlement; child.
725.219 Duration of entitlement; child.
725.220 Determination of relationship; child.
725.221 Determination of dependency; child.
725.222 Conditions of entitlement; parent, brother or sister.
725.223 Duration of entitlement; parent, brother or sister.
725.224 Determination of relationship; parent, brother or sister.
725.225 Determination of dependency; parent, brother or sister.
725.226 ``Good cause'' for delayed filing of proof of support.
725.227 Time of determination of relationship and dependency of
survivors.
725.228 Effect of conviction of felonious and intentional homicide
on entitlement to benefits.
Terms Used in This Subpart
725.229 Intestate personal property.
725.230 Legal impediment.
725.231 Domicile.
725.232 Member of the same household--``living with,'' ``living in
the same household,'' and ``living in the miner's household,''
defined.
725.233 Support and contributions.
Subpart C--Filing of Claims
725.301 Who may file a claim
725.302 Evidence of authority to file a claim on behalf of another.
725.303 Date and place of filing of claims.
725.304 Forms and initial processing.
725.305 When a written statement is considered a claim.
[[Page 3383]]
725.306 Withdrawal of a claim.
725.307 Cancellation of a request for withdrawal.
725.308 Time limits for filing claims.
725.309 Additional claims; effect of a prior denial of benefits.
725.310 Modification of awards and denials.
725.311 Communications with respect to claims; time computations.
Subpart D--Adjudication Officers; Parties and Representatives
725.350 Who are the adjudication officers.
725.351 Powers of adjudication officers.
725.352 Disqualification of adjudication officer.
725.360 Parties to proceedings
725.361 Party amicus curiae.
725.362 Representation of parties.
725.363 Qualification of representative.
725.364 Authority of representative.
725.365 Approval of representative's fees; lien against benefits.
725.366 Fees for representatives.
725.367 Payment of a claimant's attorney's fee by responsible
operator or fund.
Subpart E--Adjudication of Claims by the District Director
725.401 Claims development--general.
725.402 Approved State workers' compensation law.
725.403 Requirement to file under State workers' compensation law--
section 415 claims.
725.404 Development of evidence--general.
725.405 Development of medical evidence; scheduling of medical
examinations and tests.
725.406 Medical examinations and tests.
725.407 Identification and notification of responsible operator.
725.408 Operator's response to notification.
725.409 Denial of a claim by reason of abandonment.
725.410 Initial findings by the district director.
725.411 Initial finding--eligibility.
725.412 Initial finding--liability.
725.413 Initial adjudication by the district director.
725.414 Development of evidence.
725.415 Action by the district director after development of
operator's evidence.
725.416 Conferences.
725.417 Action at the conclusion of conference.
725.418 Proposed decision and order.
725.419 Response to proposed decision and order.
725.420 Initial determinations.
725.421 Referral of a claim to the Office of Administrative Law
Judges.
725.422 Legal Assistance.
725.423 Extensions of time.
Subpart F--Hearings
725.450 Right to a hearing.
725.451 Request for hearing.
725.452 Type of hearing; parties.
725.453 Notice of hearing.
725.454 Time and place of hearing; transfer of cases.
725.455 Hearing procedures; generally.
725.456 Introduction of documentary evidence.
725.457 Witnesses.
725.458 Depositions; interrogatories.
725.459 Witness fees.
725.460 Consolidated hearings.
725.461 Waiver of right to appear and present evidence.
725.462 Withdrawal of controversion of issues set for formal
hearing; effect.
725.463 Issues to be resolved at hearing; new issues.
725.464 Record of hearing.
725.465 Dismissals for cause.
725.466 Order of dismissal.
725.475 Termination of hearings.
725.476 Issuance of decision and order.
725.477 Form and contents of decision and order.
725.478 Filing and service of decision and order.
725.479 Finality of decisions and orders.
725.480 Modification of decisions and orders.
725.481 Right to appeal to the Benefits Review Board.
725.482 Judicial review.
725.483 Costs in proceedings brought without reasonable grounds.
Subpart G--Responsible Coal Mine Operators
725.490 Statutory provisions and scope.
725.491 Operator defined.
725.492 Successor operator defined.
725.493 Employment relationship defined.
725.494 Potentially liable operators.
725.494 Criteria for determining a responsible operator.
725.496 Special claims transferred to the Trust Fund.
725.497 Procedures in special claims transferred to the Trust Fund.
Subpart H--Payment of Benefits
General Provisions
725.501 Payment provisions generally.
725.502 When benefit payments are due; manner of payment.
725.503 Date from which benefits are payable.
725.504 Payments to a claimant employed as a miner.
725.505 Payees.
725.506 Payment on behalf of another; ``legal guardian'' defined.
725.507 Guardian for minor or incompetent.
725.510 Representative payee.
725.511 Use and benefit defined.
725.512 Support of legally dependent spouse, child, or parent.
725.513 Accountability; transfer.
725.514 Certification to dependent of augmentation portion of
benefit.
725.515 Assignment and exemption from claims of creditors.
725.520 Computation of benefits.
725.521 Commutation of payments; lump sum awards.
725.522 Payments prior to final adjudication.
725.530 Operator payments; generally.
725.531 Receipt for payment.
Increases and Reductions of Benefits
725.532 Suspension, reduction, or termination of payments.
725.533 Modification of benefit amounts; general.
725.534 Reduction of State benefits.
725.535 Reductions; receipt of State or Federal benefit.
725.536 Reductions; excess earnings.
725.537 Reductions; retroactive effect of an additional claim for
benefits.
725.538 Reductions; effect of augmentation of benefits based on
subsequent qualification of individual.
725.539 More than one reduction event.
Overpayments; Underpayments
725.540 Overpayments.
725.541 Notice of waiver of adjustment or recovery of overpayment.
725.542 When waiver of adjustment or recovery may be applied.
725.543 Standards for waiver of adjustment or recovery.
725.544 Collection and compromise of claims for overpayment.
725.545 Underpayments.
725.546 Relation to provisions for reductions or increases.
725.547 Applicability of overpayment and underpayment provisions to
operator or carrier.
Subpart I--Enforcement of Liability; Reports
725.601 Enforcement generally.
725.602 Reimbursement of the fund.
725.603 Payments by the fund on behalf of an operator; liens.
725.604 Enforcement of final awards.
725.605 Defaults.
725.606 Security for the payment of benefits.
725.607 Payments in addition to compensation.
725.608 Interest.
725.609 Enforcement against other persons.
725.620 Failure to secure benefits; other penalties.
725.621 Reports.
Subpart J--Medical Benefits and Vocational Rehabilitation
725.701 Availability of medical benefits.
725.702 Claims for medical benefits only under section 11 of the
Reform Act.
725.703 Physician defined.
725.704 Notification of right to medical benefits; authorization of
treatment.
725.705 Arrangements for medical care.
725.706 Authorization to provide medical services.
725.707 Reports of physicians and supervision of medical care.
725.708 Disputes concerning medical benefits.
725.710 Objective of vocational rehabilitation.
725.711 Requests for referral to vocational rehabilitation
assistance.
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 921, 932, 936; 33 U.S.C. 901 et
seq., 42 U.S.C. 405, Secretary's Order 7-87, 52 FR 48466, Employment
Standards Order No. 90-02.
[[Page 3384]]
Subpart A--General
Sec. 725.1 Statutory provisions.
(a) General. Title IV of the Federal Mine Safety and Health Act of
1977, as amended by the Black Lung Benefits Reform Act of 1977, the
Black Lung Benefits Revenue Act of 1977, the Black Lung Benefits
Revenue Act of 1981 and the Black Lung Benefits Amendments of 1981,
provides for the payment of benefits to a coal miner who is totally
disabled due to pneumoconiosis (black lung disease) and to certain
survivors of a miner who dies due to pneumoconiosis. For claims filed
prior to January 1, 1982, certain survivors could receive benefits if
the miner was totally (or for claims filed prior to June 30, 1982, in
accordance with section 411(c)(5) of the Act, partially) disabled due
to pneumoconiosis, or if the miner died due to pneumoconiosis.
(b) Part B. Part B of title IV of the Act provided that all claims
filed between December 30, 1969, and June 30, 1973, are to be filed
with, processed, and paid by the Secretary of Health, Education, and
Welfare through the Social Security Administration; claims filed by the
survivor of a miner before January 1, 1974, or within 6 months of the
miner's death if death occurred before January 1, 1974, and claims
filed by the survivor of a miner who was receiving benefits under part
B of title IV of the Act at the time of death, if filed within 6 months
of the miner's death, are also adjudicated and paid by the Social
Security Administration.
(c) Section 415. Claims filed by a miner between July 1 and
December 31, 1973, are adjudicated and paid under section 415. Section
415 provides that a claim filed between the appropriate dates shall be
filed with and adjudicated by the Secretary of Labor under certain
incorporated provisions of the Longshoremen's and Harbor Workers'
Compensation Act (33 U.S.C. 901 et seq.). A claim approved under
section 415 is paid under part B of title IV of the Act for periods of
eligibility occurring between July 1 and December 31, 1973, by the
Secretary of Labor and for periods of eligibility thereafter, is paid
by a coal mine operator which is determined liable for the claim or the
Black Lung Disability Trust Fund if no operator is identified or if the
miner's last coal mine employment terminated prior to January 1, 1970.
An operator which may be found liable for a section 415 claim is
notified of the claim and allowed to participate fully in the
adjudication of such claim. A claim filed under section 415 is for all
purposes considered as if it were a part C claim (see paragraph (d) of
this section) and the provisions of part C of title IV of the Act are
fully applicable to a section 415 claim except as is otherwise provided
in section 415.
(d) Part C. Claims filed by a miner or survivor on or after January
1, 1974, are filed, adjudicated, and paid under the provisions of part
C of title IV of the Act. Part C requires that a claim filed on or
after January 1, 1974, shall be filed under an applicable approved
State workers' compensation law, or if no such law has been approved by
the Secretary of Labor, the claim may be filed with the Secretary of
Labor under section 422 of the Act. Claims filed with the Secretary of
Labor under part C are processed and adjudicated by the Secretary and
paid by a coal mine operator. If the miner's last coal mine employment
terminated before January 1, 1970, or if no responsible operator can be
identified, benefits are paid by the Black Lung Disability Trust Fund.
Claims adjudicated under part C are subject to certain incorporated
provisions of the Longshoremen's and Harbor Workers' Compensation Act.
(e) Section 435. Section 435 of the Act affords each person who
filed a claim for benefits under part B, section 415, or part C, and
whose claim had been denied or was still pending as of March 1, 1978,
the effective date of the Black Lung Benefits Reform Act of 1977, the
right to have his or her claim reviewed on the basis of the 1977
amendments to the Act, and under certain circumstances to submit new
evidence in support of the claim.
(f) Changes made by the Black Lung Benefits Reform Act of 1977. In
addition to those changes which are reflected in paragraphs (a) through
(e) of this section, the Black Lung Benefits Reform Act of 1977
contains a number of significant amendments to the Act's standards for
determining eligibility for benefits. Among these are:
(1) A provision which clarifies the definition of
``pneumoconiosis'' to include any ``chronic dust disease of the lung
and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment'';
(2) A provision which defines ``miner'' to include any person who
works or has worked in or around a coal mine or coal preparation
facility, and in coal mine construction or coal transportation under
certain circumstances;
(3) A provision which limits the denial of a claim solely on the
basis of employment in a coal mine;
(4) A provision which authorizes the Secretary of Labor to
establish standards and develop criteria for determining total
disability or death due to pneumoconiosis with respect to a part C
claim;
(5) A new presumption which requires the payment of benefits to the
survivors of a miner who was employed for 25 or more years in the mines
under certain conditions;
(6) Provisions relating to the treatment to be accorded a
survivor's affidavit, certain X-ray interpretations, and certain
autopsy reports in the development of a claim; and
(7) Other clarifying, procedural, and technical amendments.
(g) Changes made by the Black Lung Benefits Revenue Act of 1977.
The Black Lung Benefits Revenue Act of 1977 established the Black Lung
Disability Trust Fund which is financed by a specified tax imposed upon
each ton of coal (except lignite) produced and sold or used in the
United States after March 31, 1978. The Secretary of the Treasury is
the managing trustee of the fund and benefits are paid from the fund
upon the direction of the Secretary of Labor. The fund was made liable
for the payment of all claims approved under section 415, part C and
section 435 of the Act for all periods of eligibility occurring on or
after January 1, 1974, with respect to claims where the miner's last
coal mine employment terminated before January 1, 1970, or where
individual liability can not be assessed against a coal mine operator
due to bankruptcy, insolvency, or the like. The fund was also
authorized to pay certain claims which a responsible operator has
refused to pay within a reasonable time, and to seek reimbursement from
such operator. The purpose of the fund and the Black Lung Benefits
Revenue Act of 1977 was to insure that coal mine operators, or the coal
industry, will fully bear the cost of black lung disease for the
present time and in the future. The Black Lung Benefits Revenue Act of
1977 also contained other provisions relating to the fund and
authorized a coal mine operator to establish its own trust fund for the
payment of certain claims.
(h) Changes made by the Black Lung Benefits Amendments of 1981. In
addition to the change reflected in paragraph (a) of this section, the
Black Lung Benefits Amendments of 1981 made a number of significant
changes in the Act's standards for determining eligibility for benefits
and concerning the payment of such benefits. The following changes are
all applicable to claims filed on or after January 1, 1982:
(1) The Secretary of Labor may re-read any X-ray submitted in
support of a claim and may rely upon a second opinion concerning such
an X-ray as a
[[Page 3385]]
means of auditing the validity of the claim;
(2) The rebuttable presumption that the death of a miner with ten
or more years employment in the coal mines, who died of a respirable
disease, was due to pneumoconiosis is no longer applicable;
(3) The rebuttable presumption that the total disability of a miner
with fifteen or more years employment in the coal mines, who has
demonstrated a totally disabling respiratory or pulmonary impairment,
is due to pneumoconiosis is no longer applicable;
(4) In the case of deceased miners, where no medical or other
relevant evidence is available, only affidavits from persons not
eligible to receive benefits as a result of the adjudication of the
claim will be considered sufficient to establish entitlement to
benefits;
(5) Unless the miner was found entitled to benefits as a result of
a claim filed prior to January 1, 1982, benefits are payable on
survivors' claims filed on and after January 1, 1982, only when the
miner's death was due to pneumoconiosis;
(6) Benefits payable under this part are subject to an offset on
account of excess earnings by the miner; and
(7) Other technical amendments.
(i) Changes made by the Black Lung Benefits Revenue Act of 1981.
The Black Lung Benefits Revenue Act of 1981 temporarily doubles the
amount of the tax upon coal until the fund shall have repaid all
advances received from the United States Treasury and the interest on
all such advances. The fund is also made liable for the payment of
certain claims previously denied under the 1972 version of the Act and
subsequently approved under section 435 and for the reimbursement of
operators and insurers for benefits previously paid by them on such
claims. With respect to claims filed on or after January 1, 1982, the
fund's authorization for the payment of interim benefits is limited to
the payment of prospective benefits only. These changes also define the
rates of interest to be paid to and by the fund.
(j) Longshoremen's Act provisions. The adjudication of claims filed
under sections 415, 422 and 435 of the Act is governed by various
procedural and other provisions contained in the Longshoremen's and
Harbor Workers' Compensation Act (LHWCA), as amended from time to time,
which are incorporated within the Act by sections 415 and 422. The
incorporated LHWCA provisions are applicable under the Act except as is
otherwise provided by the Act or as provided by regulations of the
Secretary. Although occupational disease benefits are also payable
under the LHWCA, the primary focus of the procedures set forth in that
Act is upon a time definite of traumatic injury or death. Because of
this and other significant differences between a black lung and
longshore claim, it is determined, in accordance with the authority set
forth in section 422 of the Act, that certain of the incorporated
procedures prescribed by the LHWCA must be altered to fit the
circumstances ordinarily confronted in the adjudication of a black lung
claim. The changes made are based upon the Department's experience in
processing black lung claims since July 1, 1973, and all such changes
are specified in this part or part 727 of this subchapter (see
Sec. 725.4(d)). No other departure from the incorporated provisions of
the LHWCA is intended.
(k) Social Security Act provisions. Section 402 of the Act
incorporates certain definitional provisions from the Social Security
Act, 42 U.S.C. 301 et seq. Section 430 provides that the 1972, 1977 and
1981 amendments to part B of the Act shall also apply to part C ``to
the extent appropriate.'' Sections 412 and 413 incorporate various
provisions of the Social Security Act into part B of the Act. To the
extent appropriate, these provisions also apply to part C. In certain
cases, the Department has varied the terms of the Social Security Act
provisions to accommodate the unique needs of the black lung benefits
program. Parts of the Longshore and Harbor Workers' Compensation Act
are also incorporated into part C. Where the incorporated provisions of
the two acts are inconsistent, the Department has exercised its broad
regulatory powers to choose the extent to which incorporation is
appropriate.
Sec. 725.2 Purpose and applicability of this part.
(a) It is the purpose of this part to set forth the procedures to
be followed and standards to be applied in the filing, processing,
adjudication, and payment of claims filed under part C of title IV of
the Act.
(b) This part is applicable to all claims filed under part C of
title IV of the Act on or after August 18, 1978 and shall also be
applicable to claims that were pending on August 18, 1978.
(c) The provisions of this part reflect revisions that became
effective on [the effective date of the final rule]. This part is
applicable to all claims filed, and all benefits payments made, after
[the effective date of the final rule]. With the exception of the
following sections, this part shall also be applicable to the
adjudication of claims that were pending on [the effective date of the
final rule]: Secs. 725.309, 725.310, 725.360, 725.406, 725.407,
725.408, 725.410, 725.411, 725.412, 725.413, 725.414, 725.415, 725.417,
725.418, 725.423, 725.454, 725.456, 725.457, 725.459, 725.491, 725.492,
725.493, 725.494, 725.495, 725.547. The version of those sections set
forth in 20 CFR, parts 500 to end, edition revised as of April 1, 1996,
are applicable to the adjudications of claims that were pending on [the
effective date of the final rule]. For purposes of construing the
provisions of this section, a claim shall be considered pending on [the
effective date of the final rule] if it was not finally denied more
than one year prior to that date.
Sec. 725.3 Contents of this part.
(a) This subpart describes the statutory provisions which relate to
claims considered under this part, the purpose and scope of this part,
definitions and usages of terms applicable to this part, and matters
relating to the availability of information collected by the Department
of Labor in connection with the processing of claims.
(b) Subpart B contains criteria for determining who may be found
entitled to benefits under this part and other provisions relating to
the conditions and duration of eligibility of a particular individual.
(c) Subpart C describes the procedures to be followed and action to
be taken in connection with the filing of a claim under this part.
(d) Subpart D sets forth the duties and powers of the persons
designated by the Secretary of Labor to adjudicate claims and
provisions relating to the rights of parties and representatives of
parties.
(e) Subpart E contains the procedures for developing evidence and
adjudicating entitlement and liability issues by the district director.
(f) Subpart F describes the procedures to be followed if a hearing
before the Office of Administrative Law Judges is required.
(g) Subpart G contains provisions governing the identification of a
coal mine operator which may be liable for the payment of a claim.
(h) Subpart H contains provisions governing the payment of benefits
with respect to an approved claim.
(i) Subpart I describes the statutory mechanisms provided for the
enforcement of a coal mine operator's liability, sets forth the
penalties which may be applied in the case of a defaulting coal mine
operator, and describes the obligation of coal
[[Page 3386]]
operators and their insurance carriers to file certain reports.
(j) Subpart J describes the right of certain beneficiaries to
receive medical treatment benefits and vocational rehabilitation under
the Act.
Sec. 725.4 Applicability of other parts in this title.
(a) Part 718. Part 718 of this subchapter, which contains the
criteria and standards to be applied in determining whether a miner is
or was totally disabled due to pneumoconiosis, or whether a miner died
due to pneumoconiosis, shall be applicable to the determination of
claims under this part. Claims filed after March 31, 1980, are subject
to part 718 as promulgated by the Secretary in accordance with section
402(f)(1) of the Act on February 29, 1980 (see Sec. 725.2(c)). The
criteria contained in subpart C of part 727 of this subchapter are
applicable in determining claims filed prior to April 1, 1980, under
this part, and such criteria shall be applicable at all times with
respect to claims filed under this part and under section 11 of the
Black Lung Benefits Reform Act of 1977.
(b) Parts 715, 717, and 720. Pertinent and significant provisions
of Parts 715, 717, and 720 of this subchapter (formerly contained in 20
CFR, parts 500 to end, edition revised as of April 1, 1978), which
established the procedures for the filing, processing, and payment of
claims filed under section 415 of the Act, are included within this
part as appropriate.
(c) Part 726. Part 726 of this subchapter, which sets forth the
obligations imposed upon a coal operator to insure or self-insure its
liability for the payment of benefits to certain eligible claimants, is
applicable to this part as appropriate.
(d) Part 727. Part 727 of this subchapter, which governs the
review, adjudication and payment of pending and denied claims under
section 435 of the Act, is applicable with respect to such claims. The
criteria contained in subpart C of part 727 for determining a
claimant's eligibility for benefits are applicable under this part with
respect to all claims filed before April 1, 1980, and to all claims
filed under this part and under section 11 of the Black Lung Benefits
Reform Act of 1977. Because the part 727 regulations affect an
increasingly smaller number of claims, however, the Department has
discontinued publication of the criteria in the Code of Federal
Regulations. The part 727 criteria may be found at 43 FR 36818, Aug.
18, 1978 or 20 CFR, parts 500 to end, edition revised as of April 1,
1996.
(e) Part 410. Part 410 of this title, which sets forth provisions
relating to a claim for black lung benefits under part B of title IV of
the Act, is inapplicable to this part except as is provided in this
part, or in part 718 of this subchapter.
Sec. 725.101 Definitions and use of terms.
(a) Definitions. For purposes of this subchapter, except where the
content clearly indicates otherwise, the following definitions apply:
(1) The Act means the Federal Coal Mine Health and Safety Act,
Public Law 91-173, 83 Stat. 742, 30 U.S.C. 801-960, as amended by the
Black Lung Benefits Act of 1972, the Mine Safety and Health Act of
1977, the Black Lung Benefits Reform Act of 1977, the Black Lung
Benefits Revenue Act of 1977, the Black Lung Benefits Revenue Act of
1981, and the Black Lung Benefits Amendments of 1981.
(2) The Longshoremen's Act or LHWCA means the Longshoremen's and
Harbor Workers' Compensation Act of March 4, 1927, c. 509, 44 Stat.
1424, 33 U.S.C. 901-950, as amended from time to time.
(3) The Social Security Act means the Social Security Act, Act of
August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. 301-431, as amended
from time to time.
(4) Administrative law judge means a person qualified under 5
U.S.C. 3105 to conduct hearings and adjudicate claims for benefits
filed pursuant to section 415 and part C of the Act. Until March 1,
1979, it shall also mean an individual appointed to conduct such
hearings and adjudicate such claims under Public Law 94-504.
(5) Beneficiary means a miner or any surviving spouse, divorced
spouse, child, parent, brother or sister, who is entitled to benefits
under either section 415 or part C of title IV of the Act.
(6) Benefits means all money or other benefits paid or payable
under section 415 or part C of title IV of the Act on account of
disability or death due to pneumoconiosis. The term also includes any
expenses related to the medical examination and testing authorized by
the district director pursuant to Sec. 725.406.
(7) Benefits Review Board or Board means the Benefits Review Board,
U.S. Department of Labor, an appellate tribunal appointed by the
Secretary of Labor pursuant to the provisions of section 21(b)(1) of
the LHWCA. See parts 801 and 802 of this title.
(8) Black Lung Disability Trust Fund or the fund means the Black
Lung Disability Trust Fund established by the Black Lung Benefits
Revenue Act of 1977, as amended by the Black Lung Benefits Revenue Act
of 1981, for the payment of certain claims adjudicated under this part
(see subpart G of this part).
(9) Chief Administrative Law Judge means the Chief Administrative
Law Judge of the Office of Administrative Law Judges, U.S. Department
of Labor, 800 K Street, NW., suite 400, Washington, DC 20001-8002.
(10) Claim means a written assertion of entitlement to benefits
under section 415 or part C of title IV of the Act, submitted in a form
and manner authorized by the provisions of this subchapter.
(11) Claimant means an individual who files a claim for benefits
under this part.
(12) Coal mine means an area of land and all structures,
facilities, machinery, tools, equipment, shafts, slopes, tunnels,
excavations and other property, real or personal, placed upon, under or
above the surface of such land by any person, used in, or to be used
in, or resulting from, the work of extracting in such area bituminous
coal, lignite or anthracite from its natural deposits in the earth by
any means or method, and in the work of preparing the coal so
extracted, and includes custom coal preparation facilities.
(13) Coal preparation means the breaking, crushing, sizing,
cleaning, washing, drying, mixing, storing and loading of bituminous
coal, lignite or anthracite, and such other work of preparing coal as
is usually done by the operator of a coal mine. For purposes of this
definition, the term does not include coal preparation performed by
coke oven workers.
(14) Department means the United States Department of Labor.
(15) Director means the Director, OWCP, or his or her designee.
(16) District Director means a person appointed as provided in
sections 39 and 40 of the LHWCA, or his or her designee, who is
authorized to develop and adjudicate claims as provided in this
subchapter (see Sec. 725.350). The term District Director is
substituted for the term Deputy Commissioner wherever that term appears
in this subchapter. This substitution is for administrative purposes
only and in no way affects the power or authority of the position as
established in the statute. Any action taken by a person under the
authority of a district director will be considered the action of a
deputy commissioner.
(17) Division or DCMWC means the Division of Coal Mine Workers'
Compensation in the OWCP, Employment Standards Administration, United
States Department of Labor.
[[Page 3387]]
(18) Insurer or carrier means any private company, corporation,
mutual association, reciprocal or interinsurance exchange, or any other
person or fund, including any State fund, authorized under the laws of
a State to insure employers' liability under workers' compensation
laws. The term also includes the Secretary of Labor in the exercise of
his or her authority under section 433 of the Act.
(19) Miner or coal miner means any individual who works or has
worked in or around a coal mine or coal preparation facility in the
extraction or preparation of coal. The term also includes an individual
who works or has worked in coal mine construction or transportation in
or around a coal mine, to the extent such individual was exposed to
coal dust as a result of such employment (see Sec. 725.202). For
purposes of this definition, the term does not include coke oven
workers whose activities involve the preparation or use of coal for the
coke manufacturing process.
(20) The Nation's coal mines means all coal mines located in any
State.
(21) Office or OWCP means the Office of Workers' Compensation
Programs, United States Department of Labor.
(22) Office of Administrative Law Judges means the Office of
Administrative Law Judges, U.S. Department of Labor.
(23) Operator means any owner, lessee, or other person who
operates, controls or supervises a coal mine, including a prior or
successor operator as defined in section 422 of the Act and certain
transportation and construction employers (see subpart G of this part).
(24) Person means an individual, partnership, association,
corporation, firm, subsidiary or parent of a corporation, or other
organization or business entity.
(25) Pneumoconiosis means a chronic dust disease of the lung and
its sequelae, including respiratory and pulmonary impairments, arising
out of coal mine employment (see part 718 of this subchapter).
(26) Responsible operator means an operator which has been
determined to be liable for the payment of benefits to a claimant for
periods of eligibility after December 31, 1973, with respect to a claim
filed under section 415 or part C of title IV of the Act or reviewed
under section 435 of the Act.
(27) Secretary means the Secretary of Labor, United States
Department of Labor, or a person, authorized by him or her to perform
his or her functions under title IV of the Act.
(28) State includes any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, Guam, the Trust Territory of the Pacific Islands, and prior to
January 3, 1959, and August 21, 1959, respectively, the territories of
Alaska and Hawaii.
(29) Total disability and partial disability, for purposes of this
part, have the meaning given them as provided in part 718 of this
subchapter.
(30) Underground coal mine means a coal mine in which the earth and
other materials which lie above and around the natural deposit of coal
(i.e., overburden) are not removed in mining; including all land,
structures, facilities, machinery, tools, equipment, shafts, slopes,
tunnels, excavations and other property, real or personal, appurtenant
thereto.
(31) A workers' compensation law means a law providing for payment
of benefits to employees, and their dependents and survivors, for
disability on account of injury, including occupational disease, or
death, suffered in connection with their employment. A payment funded
wholly out of general revenues shall not be considered a payment under
a workers' compensation law.
(32) Year means a period of one calendar year (365 days), or
partial periods totalling one year, during which the miner worked in or
around a coal mine or mines. A ``working day'' means any day or part of
a day for which a miner received pay for work as a miner, including any
day for which the miner received pay while on an approved absence, such
as vacation or sick leave.
(i) If the evidence establishes that the miner worked in or around
coal mines at least 125 working days during a calendar year or partial
periods totalling one year, then the miner has worked one year in coal
mine employment for all purposes under the Act. If a miner worked fewer
than 125 working days in a year, he or she has worked a fractional year
based on the ratio of the actual number of days worked to 125. Proof
that the miner worked more than 125 working days in a calendar year or
partial periods totalling a year, shall not establish more than one
year.
(ii) To the extent the evidence permits, the beginning and ending
dates of all periods of coal mine employment shall be ascertained. The
dates and length of employment may be established by any credible
evidence including (but not limited to) company records, pension
records, earnings statements, coworker affidavits, and sworn testimony.
If the evidence establishes that the miner's employment lasted for a
calendar year, it shall be presumed, in the absence of evidence to the
contrary, that the miner spent at least 125 working days in such
employment.
(iii) If the evidence is insufficient to establish the beginning
and ending dates of the miner's coal mine employment, or the miner's
employment lasted less than a calendar year, then the adjudication
officer may use the following formula: divide the miner's yearly income
from work as a miner by the coal mine industry's average daily earnings
for that year, as reported by the Bureau of Labor Statistics (BLS). A
copy of the BLS table shall be made a part of the record if the
adjudication officer uses this method to establish the length of the
miner's work history.
(iv) No periods of coal mine employment occurring outside the
United States shall be considered in computing the miner's work
history.
(b) Statutory terms. The definitions contained in this section
shall not be construed in derogation of terms of the Act.
(c) Dependents and survivors. Dependents and survivors are those
persons described in subpart B of this part.
Sec. 725.102 Disclosure of program information.
(a) All reports, records, or other documents filed with the OWCP
with respect to claims are the records of the OWCP. The Director or his
or her designee shall be the official custodian of those records
maintained by the OWCP at its national office. The District Director
shall be the official custodian of those records maintained at a
district office.
(b) The official custodian of any record sought to be inspected
shall permit or deny inspection in accordance with the Department of
Labor's regulations pertaining thereto (see 29 CFR part 70). The
original record in any such case shall not be removed from the Office
of the custodian for such inspection. The custodian may, in his or her
discretion, deny inspection of any record or part thereof which is of a
character specified in 5 U.S.C. 552(b) if in his or her opinion such
inspection may result in damage, harm, or harassment to the beneficiary
or to any other person. For special provisions concerning release of
information regarding injured employees undergoing vocational
rehabilitation, see Sec. 702.508 of this title.
(c) Any person may request copies of records he or she has been
permitted to inspect. Such requests shall be addressed to the official
custodian of the records sought to be copied. The official
[[Page 3388]]
custodian shall provide the requested copies under the terms and
conditions specified in the Department of Labor's regulations relating
thereto (see 29 CFR part 70).
(d) Any party to a claim (Sec. 725.360) or his or her duly
authorized representative shall be permitted upon request to inspect
the file which has been compiled in connection with such claim. Any
party to a claim or representative of such party shall upon request be
provided with a copy of any or all material contained in such claim
file. A request for information by a party or representative made under
this paragraph shall be answered within a reasonable time after receipt
by the Office. Internal documents prepared by the district director
which do not constitute evidence of a fact which must be established in
connection with a claim shall not be routinely provided or presented
for inspection in accordance with a request made under this paragraph.
Sec. 725.103 Burden of proof.
Except as otherwise provided in this part and part 718, the burden
of proving a fact alleged in connection with any provision shall rest
with the party making such allegation.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration
of Entitlement
Sec. 725.201 Who is entitled to benefits; contents of this subpart.
(a) Section 415 and part C of the Act provide for the payment of
periodic benefits in accordance with this part to:
(1) A miner (see Sec. 725.202) who is determined to be totally
disabled due to pneumoconiosis; or
(2) The surviving spouse or surviving divorced spouse or, where
neither exists, the child of a deceased miner, where the deceased
miner:
(i) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. Survivors of miners
whose claims are filed on or after January 1, 1982, must establish that
the deceased miner's death was due to pneumoconiosis in order to
establish their entitlement to benefits, except where entitlement is
established under Sec. 718.306 of part 718 on a survivor's claim filed
prior to June 30, 1982, or;
(3) The child of a miner's surviving spouse who was receiving
benefits under section 415 or part C of title IV of the Act at the time
of such spouse's death; or
(4) The surviving dependent parents, where there is no surviving
spouse or child, or the surviving dependent brothers or sisters, where
there is no surviving spouse, child, or parent, of a miner, where the
deceased miner;
(i) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. Survivors of miners
whose claims are filed on or after January 1, 1982, must establish that
the deceased miner's death was due to pneumoconiosis in order to
establish their entitlement to benefits, except where entitlement is
established under Sec. 718.306 of part 718 on a survivor's claim filed
prior to June 30, 1982.
(b) Section 411(c)(5) of the Act provides for the payment of
benefits to the eligible survivors of a miner employed for 25 or more
years in the mines prior to June 30, 1971, if the miner's death
occurred on or before March 1, 1978, and if the claim was filed prior
to June 30, 1982, unless it is established that at the time of death,
the miner was not totally or partially disabled due to pneumoconiosis.
For the purposes of this part the term ``total disability'' shall mean
partial disability with respect to a claim for which eligibility is
established under section 411(c)(5) of the Act. See Sec. 718.306 of
part 718 which implements this provision of the Act.
(c) The provisions contained in this subpart describe the
conditions of entitlement to benefits applicable to a miner, or a
surviving spouse, child, parent, brother, or sister, and the events
which establish or terminate entitlement to benefits.
(d) In order for an entitled miner or surviving spouse to qualify
for augmented benefits because of one or more dependents, such
dependents must meet relationship and dependency requirements with
respect to such beneficiary prescribed by or pursuant to the Act. Such
requirements are also set forth in this subpart.
Conditions and Duration of Entitlement: Miner
Sec. 725.202 Miner defined; condition of entitlement, miner.
(a) Miner defined. A ``miner'' for the purposes of this part is any
person who works or has worked in or around a coal mine or coal
preparation facility in the extraction, preparation, or transportation
of coal, and any person who works or has worked in coal mine
construction or maintenance in or around a coal mine or coal
preparation facility. There shall be a rebuttable presumption that any
person working in or around a coal mine or coal preparation facility is
a miner. This presumption may be rebutted by proof that:
(1) The person was not engaged in the extraction, preparation or
transportation of coal while working at the mine site, or in
maintenance or construction of the mine site; or
(2) The individual was not regularly employed in or around a coal
mine or coal preparation facility.
(b) Coal mine construction and transportation workers; special
provisions. A coal mine construction or transportation worker shall be
considered a miner to the extent such individual is or was exposed to
coal mine dust as a result of employment in or around a coal mine or
coal preparation facility. A transportation worker shall be considered
a miner to the extent that his or her work is integral to the
extraction or preparation of coal. A construction worker shall be
considered a miner to the extent that his or her work is integral to
the building of a coal or underground mine (see Sec. 725.101(a) (12)
and (30)).
(1) There shall be a rebuttable presumption that such individual
was exposed to coal mine dust during all periods of such employment
occurring in or around a coal mine or coal preparation facility for
purposes of:
(i) Determining whether such individual is or was a miner;
(ii) Establishing the applicability of any of the presumptions
described in section 411(c) of the Act and part 718 of this subchapter;
and
(iii) Determining the identity of a coal mine operator liable for
the payment of benefits in accordance with Sec. 725.495.
(2) The presumption may be rebutted by evidence which demonstrates
that:
(i) The individual was not regularly exposed to coal mine dust
during his or her work in or around a coal mine or coal preparation
facility; or
(ii) The individual did not work regularly in or around a coal mine
or coal preparation facility.
(c) A person who is or was a self-employed miner or independent
contractor, and who otherwise meets the requirements of this paragraph,
shall be considered a miner for the purposes of this part.
[[Page 3389]]
(d) Conditions of entitlement; miner. An individual is eligible for
benefits under this subchapter if the individual:
(1) Is a miner as defined in this section; and
(2) Has met the requirements for entitlement to benefits by
establishing that he or she:
(i) Has pneumoconiosis (see Sec. 718.202); and
(ii) The pneumoconiosis arose out of coal mine employment (see
Sec. 718.203); and
(iii) Is totally disabled (see Sec. 718.204(c)); and
(iv) The pneumoconiosis contributes to the total disability (see
Sec. 718.204(c)); and
(3) Has filed a claim for benefits in accordance with the
provisions of this part.
Sec. 725.203 Duration and cessation of entitlement; miner.
(a) An individual is entitled to benefits as a miner for each
month beginning with the first month on or after January 1, 1974, in
which the miner is totally disabled due to pneumoconiosis arising out
of coal mine employment.
(b) The last month for which such individual is entitled to
benefits is the month before the month during which either of the
following events first occurs:
(1) The miner dies; or
(2) The miner's total disability ceases (see Sec. 725.504).
(c) An individual who has been finally adjudged to be totally
disabled due to pneumoconiosis and is receiving benefits under the Act
shall promptly notify the Office and the responsible coal mine
operator, if any, if he or she engages in his or her usual coal mine
work or comparable and gainful work.
(d) Upon reasonable notice, an individual who has been finally
adjudged entitled to benefits shall submit to any additional tests or
examinations the Office deems appropriate if an issue arises pertaining
to the validity of the original award.
Conditions and Duration of Entitlement: Miner's Dependents
(Augmented Benefits)
Sec. 725.204 Determination of relationship; spouse.
(a) For the purpose of augmenting benefits, an individual will be
considered to be the spouse of a miner if:
(1) The courts of the State in which the miner is domiciled would
find that such individual and the miner validly married; or
(2) The courts of the State in which the miner is domiciled would
find, under the law they would apply in determining the devolution of
the miner's intestate personal property, that the individual is the
miner's spouse; or
(3) Under State law, such individual would have the right of a
spouse to share in the miner's intestate personal property; or
(4) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which, but for a
legal impediment, would have been a valid marriage, unless the
individual entered into the purported marriage with knowledge that it
was not a valid marriage, or if such individual and the miner were not
living in the same household in the month in which a request is filed
that the miner's benefits be augmented because such individual
qualifies as the miner's spouse.
(b) The qualification of an individual for augmentation purposes
under this section shall end with the month before the month in which:
(1) The individual dies, or
(2) The individual who previously qualified as a spouse for
purposes of Sec. 725.520(c), entered into a valid marriage without
regard to this section, with a person other than the miner.
Sec. 725.205 Determination of dependency; spouse.
For the purposes of augmenting benefits, an individual who is the
miner's spouse (see Sec. 725.204) will be determined to be dependent
upon the miner if:
(a) The individual is a member of the same household as the miner
(see Sec. 725.232); or
(b) The individual is receiving regular contributions from the
miner for support (see Sec. 725.233(c)); or
(c) The miner has been ordered by a court to contribute to such
individual's support (see Sec. 725.233(e)); or
(d) The individual is the natural parent of the son or daughter of
the miner; or
(e) The individual was married to the miner (see Sec. 725.204) for
a period of not less than 1 year.
Sec. 725.206 Determination of relationship; divorced spouse.
For the purposes of augmenting benefits with respect to any claim
considered or reviewed under this part or part 727 of this subchapter
(see Sec. 725.4(d)), an individual will be considered to be the
divorced spouse of a miner if the individual's marriage to the miner
has been terminated by a final divorce on or after the 10th anniversary
of the marriage unless, if such individual was married to and divorced
from the miner more than once, such individual was married to the miner
in each calendar year of the period beginning 10 years immediately
before the date on which any divorce became final.
Sec. 725.207 Determination of dependency; divorced spouse.
For the purpose of augmenting benefits, an individual who is the
miner's divorced spouse (Sec. 725.206) will be determined to be
dependent upon the miner if:
(a) The individual is receiving at least one-half of his or her
support from the miner (see Sec. 725.233(g)); or
(b) The individual is receiving substantial contributions from the
miner pursuant to a written agreement (see Sec. 725.233 (c) and (f));
or
(c) A court order requires the miner to furnish substantial
contributions to the individual's support (see Sec. 725.233 (c) and
(e)).
Sec. 725.208 Determination of relationship; child.
As used in this section, the term ``beneficiary'' means only a
surviving spouse entitled to benefits at the time of death (see
Sec. 725.212), or a miner. An individual will be considered to be the
child of a beneficiary if:
(a) The courts of the State in which the beneficiary is domiciled
(see Sec. 725.231) would find, under the law they would apply, that the
individual is the beneficiary's child; or
(b) The individual is the legally adopted child of such
beneficiary; or
(c) The individual is the stepchild of such beneficiary by reason
of a valid marriage of the individual's parent or adopting parent to
such beneficiary; or
(d) The individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but
would, under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) The individual is the natural son or daughter of a beneficiary
but is not a child under paragraph (a), (b), or (c) of this section,
and is not considered to be the child of the beneficiary under
paragraph (d) of this section if the beneficiary and the mother or the
father, as the case may be, of the individual went through a marriage
ceremony resulting in a purported marriage between them which but for a
legal impediment (see Sec. 725.230) would have been a valid marriage;
or
(f) The individual is the natural son or daughter of a beneficiary
but is not a child under paragraph (a), (b), or (c) of this section,
and is not considered to
[[Page 3390]]
be the child of the beneficiary under paragraph (d) or (e) of this
section, such individual shall nevertheless be considered to be the
child of the beneficiary if:
(1) The beneficiary, prior to his or her entitlement to benefits,
has acknowledged in writing that the individual is his or her son or
daughter, or has been decreed by a court to be the parent of the
individual, or has been ordered by a court to contribute to the support
of the individual (see Sec. 725.233(e)) because the individual is his
or her son or daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father or mother of the individual and was living with or contributing
to the support of the individual at the time the beneficiary became
entitled to benefits.
Sec. 725.209 Determination of dependency; child.
(a) For purposes of augmenting the benefits of a miner or surviving
spouse, the term ``beneficiary'' as used in this section means only a
miner or surviving spouse entitled to benefits (see Sec. 725.202 and
Sec. 725.212). An individual who is the beneficiary's child
(Sec. 725.208) will be determined to be, or to have been dependent on
the beneficiary, if the child:
(1) Is unmarried; and
(2)(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), which began before the age of
22; or
(iii) Is 18 years of age or older and is a student.
(b)(1) The term ``student'' means a ``full-time student'' as
defined in section 202(d)(7) of the Social Security Act, 42 U.S.C.
402(d)(7) (see Secs. 404.367 through 404.369 of this title), or an
individual under 23 years of age who has not completed 4 years of
education beyond the high school level and who is regularly pursuing a
full-time course of study or training at an institution which is:
(i) A school, college, or university operated or directly supported
by the United States, or by a State or local government or political
subdivision thereof; or
(ii) A school, college, or university which has been accredited by
a State or by a State-recognized or nationally-recognized accrediting
agency or body; or
(iii) A school, college, or university not so accredited but whose
credits are accepted, on transfer, by at least three institutions which
are so accredited; or
(iv) A technical, trade, vocational, business, or professional
school accredited or licensed by the Federal or a State government or
any political subdivision thereof, providing courses of not less than 3
months' duration that prepare the student for a livelihood in a trade,
industry, vocation, or profession.
(2) A student will be considered to be ``pursuing a full-time
course of study or training at an institution'' if the student is
enrolled in a noncorrespondence course of at least 13 weeks duration
and is carrying a subject load which is considered full-time for day
students under the institution's standards and practices. A student
beginning or ending a full-time course of study or training in part of
any month will be considered to be pursuing such course for the entire
month.
(3) A child is considered not to have ceased to be a student:
(i) During any interim between school years, if the interim does
not exceed 4 months and the child shows to the satisfaction of the
Office that he or she has a bona fide intention of continuing to pursue
a full-time course of study or training; or
(ii) During periods of reasonable duration in which, in the
judgment of the Office, the child is prevented by factors beyond the
child's control from pursuing his or her education.
(4) A student whose 23rd birthday occurs during a semester or the
enrollment period in which such student is pursuing a full-time course
of study or training shall continue to be considered a student until
the end of such period, unless eligibility is otherwise terminated.
Sec. 725.210 Duration of augmented benefits.
Augmented benefits payable on behalf of a spouse or divorced
spouse, or a child, shall begin with the first month in which the
dependent satisfies the conditions of relationship and dependency set
forth in this subpart. Augmentation of benefits on account of a
dependent continues through the month before the month in which the
dependent ceases to satisfy these conditions, except in the case of a
child who qualifies as a dependent because such child is a student. In
the latter case, benefits continue to be augmented through the month
before the first month during no part of which such child qualifies as
a student.
Sec. 725.211 Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
With respect to the spouse or child of a miner entitled to
benefits, and with respect to the child of a surviving spouse entitled
to benefits, the determination as to whether an individual purporting
to be a spouse or child is related to or dependent upon such miner or
surviving spouse shall be based on the facts and circumstances present
in each case, at the appropriate time.
Conditions and Duration of Entitlement: Miner's Surviviors
Sec. 725.212 Condition of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual who is the surviving spouse or surviving divorced
spouse of a miner is eligible for benefits if such individual:
(1) Is not married;
(2) Was dependent on the miner at the pertinent time; and
(3) The deceased miner either:
(i) Was receiving benefits under section 415 or part C of title IV
of the Act at the time of death as a result of a claim filed prior to
January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death or to have died due to pneumoconiosis. A surviving spouse or
surviving divorced spouse of a miner whose claim is filed on or after
January 1, 1982, must establish that the deceased miner's death was due
to pneumoconiosis in order to establish entitlement to benefits, except
where entitlement is established under Sec. 718.306 of part 718 on a
claim filed prior to June 30, 1982.
(b) If more than one spouse meets the conditions of entitlement
prescribed in paragraph (a), then each spouse will be considered a
beneficiary for purposes of section 412(a)(2) of the Act without regard
to the existence of any other entitled spouse or spouses.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.213 Duration of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual is entitled to benefits as a surviving spouse, or
as a surviving divorced spouse, for each month beginning with the first
month in which all of the conditions of entitlement prescribed in
Sec. 725.212 are satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which either of the following
events first occurs:
(1) The surviving spouse or surviving divorced spouse marries; or
[[Page 3391]]
(2) The surviving spouse or surviving divorced spouse dies.
(c) A surviving spouse or surviving divorced spouse whose
entitlement to benefits has been terminated pursuant to
Sec. 725.213(b)(1) may thereafter again become entitled to such
benefits upon filing application for such reentitlement, beginning with
the first month after the marriage ends and such individual meets the
requirements of Sec. 725.212. The individual shall not be required to
reestablish the miner's entitlement to benefits (Sec. 725.212(a)(3)(i))
or the miner's death due to pneumoconiosis (Sec. 725.212(a)(3)(ii)).
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.214 Determination of relationship; surviving spouse.
An individual shall be considered to be the surviving spouse of a
miner if:
(a) The courts of the State in which the miner was domiciled (see
Sec. 725.231) at the time of his or her death would find that the
individual and the miner were validly married; or
(b) The courts of the State in which the miner was domiciled (see
Sec. 725.231) at the time of the miner's death would find that the
individual was the miner's surviving spouse; or
(c) Under State law, such individual would have the right of the
spouse to share in the miner's interstate personal property; or
(d) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which but for a
legal impediment (see Sec. 725.230) would have been a valid marriage,
unless such individual entered into the purported marriage with
knowledge that it was not a valid marriage, or if such individual and
the miner were not living in the same household at the time of the
miner's death.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.215 Determination of dependency; surviving spouse.
An individual who is the miner's surviving spouse (see
Sec. 725.214) shall be determined to have been dependent on the miner
if, at the time of the miner's death:
(a) The individual was living with the miner (see Sec. 725.232); or
(b) The individual was dependent upon the miner for support or the
miner has been ordered by a court to contribute to such individual's
support (see Sec. 725.233); or
(c) The individual was living apart from the miner because of the
miner's desertion or other reasonable cause; or
(d) The individual is the natural parent of the miner's son or
daughter; or
(e) The individual had legally adopted the miner's son or daughter
while the individual was married to the miner and while such son or
daughter was under the age of 18; or
(f) The individual was married to the miner at the time both of
them legally adopted a child under the age of 18; or
(g) (1) The individual was married to the miner for a period of not
less than 9 months immediately before the day on which the miner died,
unless the miner's death:
(i) Is accidental (as defined in paragraph (g)(2) of this section),
or
(ii) Occurs in line of duty while the miner is a member of a
uniformed service serving on active duty (as defined in Sec. 404.1019
of this title), and the surviving spouse was married to the miner for a
period of not less than 3 months immediately prior to the day on which
such miner died.
(2) For purposes of paragraph (g)(l)(i) of this section, the death
of a miner is accidental if such individual received bodily injuries
solely through violent, external, and accidental means, and as a direct
result of the bodily injuries and independently of all other causes,
dies not later than 3 months after the day on which such miner receives
such bodily injuries. The term ``accident'' means an event that was
unpremeditated and unforeseen from the standpoint of the deceased
individual. To determine whether the death of an individual did, in
fact, result from an accident the adjudication officer will consider
all the circumstances surrounding the casualty. An intentional and
voluntary suicide will not be considered to be death by accident;
however, suicide by an individual who is so incompetent as to be
incapable of acting intentionally and voluntarily will be considered to
be a death by accident. In no event will the death of an individual
resulting from violent and external causes be considered a suicide
unless there is direct proof that the fatal injury was self-inflicted.
(3) The provisions of paragraph (g) shall not apply if the
adjudication officer determines that at the time of the marriage
involved, the miner would not reasonably have been expected to live for
9 months.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.216 Determination of relationship; surviving divorced spouse.
An individual will be considered to be the surviving divorced
spouse of a deceased miner in a claim considered under this part or
reviewed under part 727 of this subchapter (see Sec. 725.4(d)), if such
individual's marriage to the miner had been terminated by a final
divorce on or after the 10th anniversary of the marriage unless, if
such individual was married to and divorced from the miner more than
once, such individual was married to such miner in each calendar year
of the period beginning 10 years immediately before the date on which
any divorce became final and ending with the year in which the divorce
became final.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.217 Determination of dependency; surviving divorced spouse.
An individual who is the miner's surviving divorced spouse (see
Sec. 725.216) shall be determined to have been dependent on the miner
if, for the month before the month in which the miner died:
(a) The individual was receiving at least one-half of his or her
support from the miner (see Sec. 725.233(g)); or
(b) The individual was receiving substantial contributions from the
miner pursuant to a written agreement (see Sec. 725.233 (c) and (f));
or
(c) A court order required the miner to furnish substantial
contributions to the individual's support (see Sec. 725.233 (c) and
(e)).
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.218 Conditions of entitlement; child.
(a) An individual is entitled to benefits where he or she meets the
required standards of relationship and dependency under this subpart
(see Sec. 725.220 and Sec. 725.221) and is the child of a deceased
miner who:
(1) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982, or
(2) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. A surviving dependent
child of a miner whose claim is filed on or after January 1, 1982, must
establish that the miner's death was due to pneumoconiosis in order to
establish entitlement to benefits, except where entitlement is
[[Page 3392]]
established under Sec. 718.306 of part 718 on a claim filed prior to
June 30, 1982.
(b) A child is not entitled to benefits for any month for which a
miner, or the surviving spouse or surviving divorced spouse of a miner,
establishes entitlement to benefits.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.219 Duration of entitlement; child.
(a) An individual is entitled to benefits as a child for each month
beginning with the first month in which all of the conditions of
entitlement prescribed in Sec. 725.218 are satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which any one of the
following events first occurs:
(1) The child dies;
(2) The child marries;
(3) The child attains age 18; and
(i) Is not a student (as defined in Sec. 725.209(b)) during any
part of the month in which the child attains age 18; and
(ii) Is not under a disability (as defined in
Sec. 725.209(a)(2)(ii)) at that time;
(4) If the child's entitlement beyond age 18 is based on his or her
status as a student, the earlier of:
(i) The first month during no part of which the child is a student;
or
(ii) The month in which the child attains age 23 and is not under a
disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
(5) If the child's entitlement beyond age 18 is based on
disability, the first month in no part of which such individual is
under a disability.
(c) A child whose entitlement to benefits terminated with the month
before the month in which the child attained age 18, or later, may
thereafter (provided such individual is not married) again become
entitled to such benefits upon filing application for such
reentitlement, beginning with the first month after termination of
benefits in which such individual is a student and has not attained the
age of 23.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.220 Determination of relationship; child.
For purposes of determining whether an individual may qualify for
benefits as the child of a deceased miner, the provisions of
Sec. 725.208 shall be applicable. As used in this section, the term
``beneficiary'' means only a surviving spouse entitled to benefits at
the time of such surviving spouse's death (see Sec. 725.212), or a
miner. For purposes of a survivor's claim, an individual will be
considered to be a child of a beneficiary if:
(a) The courts of the State in which such beneficiary is domiciled
(see Sec. 725.231) would find, under the law they would apply in
determining the devolution of the beneficiary's intestate personal
property, that the individual is the beneficiary's child; or
(b) Such individual is the legally adopted child of such
beneficiary; or
(c) Such individual is the stepchild of such beneficiary by reason
of a valid marriage of such individual's parent or adopting parent to
such beneficiary; or
(d) Such individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but
would, under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) Such individual is the natural son or daughter of a beneficiary
but does not bear the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) of this section, such
individual shall nevertheless be considered to be the child of such
beneficiary if the beneficiary and the mother or father, as the case
may be, of such individual went through a marriage ceremony resulting
in a purported marriage between them which but for a legal impediment
(see Sec. 725.230) would have been a valid marriage; or
(f) Such individual is the natural son or daughter of a beneficiary
but does not have the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) or (e) of this
section, such individual shall nevertheless be considered to be the
child of such beneficiary if:
(1) Such beneficiary, prior to his or her entitlement to benefits,
has acknowledged in writing that the individual is his or her son or
daughter, or has been decreed by a court to be the father or mother of
the individual, or has been ordered by a court to contribute to the
support of the individual (see Sec. 725.233(a)) because the individual
is a son or daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father or mother of the individual and was living with or contributing
to the support of the individual at the time such beneficiary became
entitled to benefits.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.221 Determination of dependency; child.
For the purposes of determining whether a child was dependent upon
a deceased miner, the provisions of Sec. 725.209 shall be applicable,
except that for purposes of determining the eligibility of a child who
is under a disability as defined in section 223(d) of the Social
Security Act, such disability must have begun before the child attained
age 22, or in the case of a student, before the child ceased to be a
student.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.222 Conditions of entitlement; parent, brother, or sister.
(a) An individual is eligible for benefits as a surviving parent,
brother or sister if all of the following requirements are met:
(1) The individual is the parent, brother, or sister of a deceased
miner;
(2) The individual was dependent on the miner at the pertinent
time;
(3) Proof of support is filed within 2 years after the miner's
death, unless the time is extended for good cause (Sec. 725.226);
(4) In the case of a brother or sister, such individual also:
(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), which began before such
individual attained age 22, or in the case of a student, before the
student ceased to be a student; or
(iii) Is a student (see Sec. 725.209(b)); or
(iv) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), at the time of the miner's
death;
(5) The deceased miner:
(i) Was entitled to benefits under section 415 or part C of title
IV of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death or to have died due to pneumoconiosis. A surviving dependent
parent, brother or sister of a miner whose claim is filed on or after
January 1, 1982, must establish that the miner's death was due to
pneumoconiosis in order to establish entitlement to benefits, except
where entitlement is established under Sec. 718.306 of part 718 on a
claim filed prior to June 30, 1982.
[[Page 3393]]
(b)(1) A parent is not entitled to benefits if the deceased miner
was survived by a spouse or child at the time of such miner's death.
(2) A brother or sister is not entitled to benefits if the deceased
miner was survived by a spouse, child, or parent at the time of such
miner's death.
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.223 Duration of entitlement; parent, brother, or sister.
(a) A parent, sister, or brother is entitled to benefits beginning
with the month all the conditions of entitlement described in
Sec. 725.222 are met.
(b) The last month for which such parent is entitled to benefits is
the month in which the parent dies.
(c) The last month for which such brother or sister is entitled to
benefits is the month before the month in which any of the following
events first occurs:
(1) The individual dies;
(2)(i) The individual marries or remarries; or
(ii) If already married, the individual received support in any
amount from his or her spouse;
(3) The individual attains age 18; and
(i) Is not a student (as defined in Sec. 725.209(b)) during any
part of the month in which the individual attains age 18; and
(ii) Is not under a disability (as defined in
Sec. 725.209(a)(2)(ii)) at that time;
(4) If the individual's entitlement beyond age 18 is based on his
or her status as a student, the earlier of:
(i) The first month during no part of which the individual is a
student; or
(ii) The month in which the individual attains age 23 and is not
under a disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
(5) If the individual's entitlement beyond age 18 is based on
disability, the first month in no part of which such individual is
under a disability.
(d) A brother or sister whose entitlement to benefits terminated
pursuant to Sec. 725.223(c)(2)(i) may thereafter again become entitled
to such benefits upon filing application for such reentitlement,
beginning with the first month after the marriage ends and such
individual meets the requirements of Sec. 725.222. The individual shall
not be required to reestablish the miner's entitlement to benefits
(Sec. 725.222(a)(5)(i)) or the miner's death due to pneumoconiosis
(Sec. 725.222(a)(5)(ii)).
(Approved by the Office of Management and Budget under control
number 1215-0087)
(Pub. L. No. 96-511)
Sec. 725.224 Determination of relationship; parent, brother, or
sister.
(a) An individual will be considered to be the parent, brother, or
sister of a miner if the courts of the State in which the miner was
domiciled (see Sec. 225.231) at the time of death would find, under the
law they would apply, that the individual is the miner's parent,
brother, or sister.
(b) Where, under State law, the individual is not the miner's
parent, brother, or sister, but would, under State law, have the same
status (i.e., right to share in the miner's intestate personal
property) as a parent, brother, or sister, the individual will be
considered to be the parent, brother, or sister as appropriate.
Sec. 725.225 Determination of dependency; parent, brother, or sister.
An individual who is the miner's parent, brother, or sister will be
determined to have been dependent on the miner if, during the 1-year
period immediately prior to the miner's death:
(a) The individual and the miner were living in the same household
(see Sec. 725.232); and
(b) The individual was totally dependent on the miner for support
(see Sec. 725.233(h)).
Sec. 725.226 ``Good cause'' for delayed filing of proof of support.
(a) What constitutes ``good cause.'' ``Good cause'' may be found
for failure to file timely proof of support where the parent, brother,
or sister establishes to the satisfaction of the Office that such
failure to file was due to:
(1) Circumstances beyond the individual's control, such as extended
illness, mental, or physical incapacity, or communication difficulties;
or
(2) Incorrect or incomplete information furnished the individual by
the Office; or
(3) Efforts by the individual to secure supporting evidence without
a realization that such evidence could be submitted after filing proof
of support.
(b) What does not constitute ``good cause.'' ``Good cause'' for
failure to file timely proof of support (see Sec. 725.222(a)(3)) does
not exist when there is evidence of record in the Office that the
individual was informed that he or she should file within the
prescribed period and he or she failed to do so deliberately or through
negligence.
Sec. 725.227 Time of determination of relationship and dependency of
survivors.
The determination as to whether an individual purporting to be an
entitled survivor of a miner or beneficiary was related to, or
dependent upon, the miner is made after such individual files a claim
for benefits as a survivor. Such determination is based on the facts
and circumstances with respect to a reasonable period of time ending
with the miner's death. A prior determination that such individual was,
or was not, a dependent for the purposes of augmenting the miner's
benefits for a certain period, is not determinative of the issue of
whether the individual is a dependent survivor of such miner.
Sec. 725.228 Effect of conviction of felonious and intentional
homicide on entitlement to benefits.
An individual who has been convicted of the felonious and
intentional homicide of a miner or other beneficiary shall not be
entitled to receive any benefits payable because of the death of such
miner or other beneficiary, and such person shall be considered
nonexistent in determining the entitlement to benefits of other
individuals.
Terms Used in this Subpart
Sec. 725.229 Intestate personal property.
References in this subpart to the ``same right to share in the
intestate personal property'' of a deceased miner (or surviving spouse)
refer to the right of an individual to share in such distribution in
the individual's own right and not the right of representation.
Sec. 725.230 Legal impediment.
For purposes of this subpart, ``legal impediment'' means an
impediment resulting from the lack of dissolution of a previous
marriage or otherwise arising out of such previous marriage or its
dissolution or resulting from a defect in the procedure followed in
connection with the purported marriage ceremony--for example, the
solemnization of a marriage only through a religious ceremony in a
country which requires a civil ceremony for a valid marriage.
Sec. 725.231 Domicile.
(a) For purposes of this subpart, the term ``domicile'' means the
place of an individual's true, fixed, and permanent home.
(b) The domicile of a deceased miner or surviving spouse is
determined as of the time of death.
(c) If an individual was not domiciled in any State at the
pertinent time, the law of the District of Columbia is applied.
[[Page 3394]]
Sec. 725.232 Member of the same household--''living with,'' ``living
in the same household,'' and ``living in the miner's household,''
defined.
(a) Defined. (1) The term ``member of the same household'' as used
in section 402(a)(2) of the Act (with respect to a spouse); the term
``living with'' as used in section 402(e) of the Act (with respect to a
surviving spouse); and the term ``living in the same household'' as
used in this subpart, means that a husband and wife were customarily
living together as husband and wife in the same place.
(2) The term ``living in the miner's household'' as used in section
412(a)(5) of the Act (with respect to a parent, brother, or sister)
means that the miner and such parent, brother, or sister were sharing
the same residence.
(b) Temporary absence. The temporary absence from the same
residence of either the miner, or the miner's spouse, parent, brother,
or sister (as the case may be), does not preclude a finding that one
was ``living with'' the other, or that they were ``members of the same
household.'' The absence of one such individual from the residence in
which both had customarily lived shall, in the absence of evidence to
the contrary, be considered temporary:
(1) If such absence was due to service in the Armed Forces of the
United States; or
(2) If the period of absence from his or her residence did not
exceed 6 months and the absence was due to business or employment
reasons, or because of confinement in a penal institution or in a
hospital, nursing home, or other curative institution; or
(3) In any other case, if the evidence establishes that despite
such absence they nevertheless reasonably expected to resume physically
living together.
(c) Relevant period of time. (1) The determination as to whether a
surviving spouse had been ``living with'' the miner shall be based upon
the facts and circumstances as of the time of the death of the miner.
(2) The determination as to whether a spouse is a ``member of the
same household'' as the miner shall be based upon the facts and
circumstances with respect to the period or periods of time as to which
the issue of membership in the same household is material.
(3) The determination as to whether a parent, brother, or sister
was ``living in the miner's household'' shall take account of the 1-
year period immediately prior to the miner's death.
Sec. 725.233 Support and contributions.
(a) Support defined. The term ``support'' includes food, shelter,
clothing, ordinary medical expenses, and other ordinary and customary
items for the maintenance of the person supported.
(b) Contributions defined. The term ``contributions'' refers to
contributions actually provided by the contributor from such
individual's property, or the use thereof, or by the use of such
individual's own credit.
(c) Regular contributions and ``substantial contributions''
defined. The terms ``regular contributions'' and ``substantial
contributions'' mean contributions that are customary and sufficient to
constitute a material factor in the cost of the individual's support.
(d) Contributions and community property. When a spouse receives
and uses for his or her support income from services or property, and
such income, under applicable State law, is the community property of
the wife and her husband, no part of such income is a ``contribution''
by one spouse to the other's support regardless of the legal interest
of the donor. However, when a spouse receives and uses for support,
income from the services and the property of the other spouse and,
under applicable State law, such income is community property, all of
such income is considered to be a contribution by the donor to the
spouse's support.
(e) Court order for support defined. References to a support order
in this subpart means any court order, judgment, or decree of a court
of competent jurisdiction which requires regular contributions that are
a material factor in the cost of the individual's support and which is
in effect at the applicable time. If such contributions are required by
a court order, this condition is met whether or not the contributions
were actually made.
(f) Written agreement defined. The term ``written agreement'' in
the phrase ``substantial contributions pursuant to a written
agreement'', as used in this subpart means an agreement signed by the
miner providing for substantial contributions by the miner for the
individual's support. It must be in effect at the applicable time but
it need not be legally enforceable.
(g) One-half support defined. The term ``one-half support'' means
that the miner made regular contributions, in cash or in kind, to the
support of a divorced spouse at the specified time or for the specified
period, and that the amount of such contributions equalled or exceeded
one-half the total cost of such individual's support at such time or
during such period.
(h) Totally dependent for support defined. The term ``totally
dependent for support'' as used in Sec. 725.225(b) means that the miner
made regular contributions to the support of the miner's parents,
brother, or sister, as the case may be, and that the amount of such
contributions at least equalled the total cost of such individual's
support.
Subpart C--Filing of Claims
Sec. 725.301 Who may file a claim.
(a) Any person who believes he or she may be entitled to benefits
under the Act may file a claim in accordance with this subpart.
(b) A claimant who has attained the age of 18, is mentally
competent and physically able, may file a claim on his or her own
behalf.
(c) If a claimant is unable to file a claim on his or her behalf
because of a legal or physical impairment, the following rules shall
apply:
(1) A claimant between the ages of 16 and 18 years who is mentally
competent and not under the legal custody or care of another person, or
a committee or institution, may upon filing a statement to the effect,
file a claim on his or her own behalf. In any other case where the
claimant is under 18 years of age, only a person, or the manager or
principal officer of an institution having legal custody or care of the
claimant may file a claim on his or her behalf.
(2) If a claimant over 18 years of age has a legally appointed
guardian or committee, only the guardian or committee may file a claim
on his or her behalf.
(3) If a claimant over 18 years of age is mentally incompetent or
physically unable to file a claim and is under the care of another
person, or an institution, only the person, or the manager or principal
officer of the institution responsible for the care of the claimant,
may file a claim on his or her behalf.
(4) For good cause shown, the Office may accept a claim executed by
a person other than one described in paragraphs (c) (2) or (3) of this
section.
(d) Except as provided in Sec. 725.305 of this part, in order for a
claim to be considered, the claimant must be alive at the time the
claim is filed.
Sec. 725.302 Evidence of authority to file a claim on behalf of
another.
A person filing a claim on behalf of a claimant shall submit
evidence of his or her authority to so act at the time of filing or at
a reasonable time thereafter in accordance with the following:
(a) A legally appointed guardian or committee shall provide the
Office with certification of appointment by a proper official of the
court.
(b) Any other person shall provide a statement describing his or
her
[[Page 3395]]
relationship to the claimant, the extent to which he or she has care of
the claimant, or his or her position as an officer of the institution
of which the claimant is an inmate. The Office may, at any time,
require additional evidence to establish the authority of any such
person.
Sec. 725.303 Date and place of filing of claims.
(a)(1) Claims for benefits shall be delivered, mailed to, or
presented at, any of the various district offices of the Social
Security Administration, or any of the various offices of the
Department of Labor authorized to accept claims, or, in the case of a
claim filed by or on behalf of a claimant residing outside the United
States, mailed or presented to any office maintained by the Foreign
Service of the United States. A claim shall be considered filed on the
day it is received by the office in which it is first filed.
(2) A claim submitted to a Foreign Service Office or any other
agency or subdivision of the U.S. Government shall be forwarded to the
Office and considered filed as of the date it was received at the
Foreign Service Office or other governmental agency or unit.
(b) A claim submitted by mail shall be considered filed as of the
date of delivery unless a loss or impairment of benefit rights would
result, in which case a claim shall be considered filed as of the date
of its postmark. In the absence of a legible postmark, other evidence
may be used to establish the mailing date.
Sec. 725.304 Forms and initial processing.
(a) Claims shall be filed on forms prescribed and approved by the
Office. The district office at which the claim is filed will assist
claimants in completing their forms.
(b) If the place at which a claim is filed is an office of the
Social Security Administration, such office shall forward the completed
claim form to an office of the DCMWC, which is authorized to process
the claim.
Sec. 725.305 When a written statement is considered a claim.
(a) The filing of a statement signed by an individual indicating an
intention to claim benefits shall be considered to be the filing of a
claim for the purposes of this part under the following circumstances:
(1) The claimant or a proper person on his or her behalf (see
Sec. 725.301) executes and files a prescribed claim form with the
Office during the claimant's lifetime within the period specified in
paragraph (b) of this section.
(2) Where the claimant dies within the period specified in
paragraph (b) of this section without filing a prescribed claim form,
and a person acting on behalf of the deceased claimant's estate
executes and files a prescribed claim form within the period specified
in paragraph (c) of this section.
(b) Upon receipt of a written statement indicating an intention to
claim benefits, the Office shall notify the signer in writing that to
be considered the claim must be executed by the claimant or a proper
party on his or her behalf on the prescribed form and filed with the
Office within six months from the date of mailing of the notice.
(c) If before the notice specified in paragraph (b) of this section
is sent, or within six months after such notice is sent, the claimant
dies without having executed and filed a prescribed form, or without
having had one executed and filed in his or her behalf, the Office
shall upon receipt of notice of the claimant's death advise his or her
estate, or those living at his or her last known address, in writing
that for the claim to be considered, a prescribed claim form must be
executed and filed by a person authorized to do so on behalf of the
claimant's estate within six months of the date of the later notice.
(d) Claims based upon written statements indicating an intention to
claim benefits not perfected in accordance with this section shall not
be processed.
Sec. 725.306 Withdrawal of a claim.
(a) A claimant or an individual authorized to execute a claim on a
claimant's behalf or on behalf of claimant's estate under Sec. 725.305,
may withdraw a previously filed claim provided that:
(1) He or she files a written request with the appropriate
adjudication officer indicating the reasons for seeking withdrawal of
the claim;
(2) The appropriate adjudication officer approves the request for
withdrawal on the grounds that it is in the best interests of the
claimant or his or her estate, and;
(3) Any payments made to the claimant in accordance with
Sec. 725.522 are reimbursed.
(b) When a claim has been withdrawn under paragraph (a) of this
section, the claim will be considered not to have been filed.
Sec. 725.307 Cancellation of a request for withdrawal.
At any time prior to approval, a request for withdrawal may be
canceled by a written request of the claimant or a person authorized to
act on the claimant's behalf or on behalf of the claimant's estate.
Sec. 725.308 Time limits for filing claims.
(a) A claim for benefits filed under this part by, or on behalf of,
a miner shall be filed within three years after a medical determination
of total disability due to pneumoconiosis which has been communicated
to the miner or a person responsible for the care of the miner, or
within three years after the date of enactment of the Black Lung
Benefits Reform Act of 1977, whichever is later. There is no time limit
on the filing of a claim by the survivor of a miner.
(b) A miner who is receiving benefits under part B of title IV of
the Act and who is notified by HEW of the right to seek medical
benefits may file a claim for medical benefits under part C of title IV
of the Act and this part. The Secretary of Health, Education, and
Welfare is required to notify each miner receiving benefits under part
B of this right. Notwithstanding the provisions of paragraph (a) of
this section, a miner notified of his or her rights under this
paragraph may file a claim under this part on or before December 31,
1980. Any claim filed after that date shall be untimely unless the time
for filing has been enlarged for good cause shown.
(c) There shall be a rebuttable presumption that every claim for
benefits is timely filed. However, except as provided in paragraph (b)
of this section, the time limits in this section are mandatory and may
not be waived or tolled except upon a showing of extraordinary
circumstances.
Sec. 725.309 Additional claims; effect of a prior denial of benefits.
(a) A claimant whose claim for benefits was previously approved
under part B of title IV of the Act may file a claim for benefits under
this part as provided in Secs. 725.308(b) and 725.702.
(b) If a claimant files a claim under this part while another claim
filed by the claimant under this part is still pending, the later claim
shall be merged with the earlier claim for all purposes. For purposes
of this section, a claim shall be considered pending if it has not yet
been finally denied.
(c) If a claimant files a claim under this part within one year
after the effective date of a final order denying a claim previously
filed by the claimant under this part (see Sec. 725.502(a)(2)), the
later claim shall be considered a request for modification of the prior
denial and shall be processed and adjudicated under Sec. 725.310 of
this part.
(d) If a claimant files a claim under this part more than one year
after the effective date of a final order denying a
[[Page 3396]]
claim previously filed by the claimant under this part (see
Sec. 725.502(a)(2)), the later claim shall be considered a subsequent
claim for benefits. A subsequent claim shall be processed and
adjudicated in accordance with the provisions of subparts E and F of
this part, except that the claim shall be denied unless the claimant
demonstrates that one of the applicable conditions of entitlement (see
Secs. 725.202(d) (miner), 725.212 (spouse), 725.218 (child), and
725.222 (parent, brother, or sister)) has changed since the date upon
which the order denying the prior claim became final. The applicability
of this paragraph may be waived by the operator or fund, as
appropriate. The following additional rules shall apply to the
adjudication of a subsequent claim:
(1) Any evidence submitted in connection with any prior claim shall
be made a part of the record in the subsequent claim, provided that it
was not excluded in the adjudication of the prior claim.
(2) For purposes of this section, the applicable conditions of
entitlement shall be limited to those conditions upon which the prior
denial was based. For example, if the claim was denied solely on the
basis that the individual was not a miner, the subsequent claim must be
denied unless the individual worked as a miner following the prior
denial. Similarly, if the claim was denied because the miner did not
meet one or more of the eligibility criteria contained in part 718 of
this subchapter, the subsequent claim must be denied unless the miner
meets at least one of the criteria that he or she did not meet
previously.
(3) If the applicable condition(s) of entitlement relate to the
miner's physical condition and the new evidence submitted in connection
with the subsequent claim pursuant to Sec. 725.413 of this part
establishes at least one applicable condition of entitlement, there
shall be a rebuttable presumption that the miner's physical condition
has changed. The presumption may be rebutted only if an evaluation of
the record compiled in the prior claim reveals that the order denying
that claim is clearly erroneous and that the claim should have been
approved as a matter of law. If the presumption is rebutted, the
claimant shall bear the burden of proving that his pulmonary or
respiratory condition has significantly deteriorated since the date
upon which the order denying the prior claim became final. The
provisions of paragraph (d)(3) shall not be applicable in the case of a
claim filed by a surviving spouse, child, parent, brother, or sister.
(4) If the claimant demonstrates a change in one of the applicable
conditions of entitlement, no findings made in connection with the
prior claim, except those based on a party's failure to contest an
issue (see Sec. 725.463), shall be binding on any party in the
adjudication of the subsequent claim. However, any stipulation made by
any party in connection with the prior claim shall be binding on that
party in the adjudication of the subsequent claim.
(5) In any case in which a subsequent claim is awarded, no benefits
may be paid for any period prior to the date upon which the order
denying the prior claim became final.
(e) Notwithstanding any other provision of this part or part 727 of
this subchapter (see Sec. 725.4(d)), a person may exercise the right of
review provided in paragraph (c) of Sec. 727.103 at the same time such
person is pursuing an appeal of a previously denied part B claim under
the law as it existed prior to March 1, 1978. If the part B claim is
ultimately approved as a result of the appeal, the claimant must
immediately notify the Secretary of Labor and, where appropriate, the
coal mine operator, and all duplicate payments made under part C shall
be considered an overpayment and arrangements shall be made to insure
the repayment of such overpayments to the fund or an operator, as
appropriate.
(f) In any case involving more than one claim filed by the same
claimant, under no circumstances are duplicate benefits payable for
concurrent periods of eligibility. Any duplicate benefits paid shall be
subject to collection or offset under subpart H of this part.
Sec. 725.310 Modification of awards and denials.
(a) Upon his or her own initiative, or upon the request of any
party on grounds of a change in conditions or because of a mistake in a
determination of fact, the district director may, at any time before
one year from the date of the last payment of benefits, or at any time
before one year after the denial of a claim, reconsider the terms of an
award or denial of benefits.
(b) Modification proceedings shall be conducted in accordance with
the provisions of this part as appropriate, except that the claimant
and the operator, or group of operators or the fund, as appropriate,
shall each be entitled to submit no more than one additional pulmonary
evaluation or consultative report, in accordance with the provisions of
Sec. 725.414 of this part, along with such rebuttal evidence as may be
required. Modification proceedings shall not be initiated before an
administrative law judge or the Benefits Review Board.
(c) At the conclusion of modification proceedings before the
district director, the district director may issue a proposed decision
and order (Sec. 725.418) or, if appropriate, deny the claim by reason
of abandonment (Sec. 725.409). In any case in which the district
director has initiated modification proceedings on his own initiative
to alter the terms of an award or denial of benefits issued by an
administrative law judge, the district director shall, at the
conclusion of modification proceedings, forward the claim for a hearing
(Sec. 725.421). In any case forwarded for a hearing, the administrative
law judge assigned to hear such case shall consider whether any
additional evidence submitted by the parties demonstrates a change in
condition and, regardless of whether the parties have submitted new
evidence, whether the evidence of record demonstrates a mistake in a
determination of fact.
(d) An order issued following the conclusion of modification
proceedings may terminate, continue, reinstate, increase or decrease
benefit payments or award benefits. Such order shall not affect any
benefits previously paid, except that an order increasing the amount of
benefits payable based on a finding of a mistake in a determination of
fact may be made effective on the date from which benefits were
determined payable by the terms of an earlier award. In the case of an
award which is decreased, no payment made in excess of the decreased
rate prior to the date upon which the party requested reconsideration
under paragraph (a) or, in a case in which no request was made, the
district director initiated modification proceedings, shall be subject
to collection or offset under subpart H of this part. In the case of an
award which is terminated, no payment made prior to the date upon which
the party requested reconsideration under paragraph (a) or, in a case
in which no request was made, the district director initiated
modification proceedings, shall be subject to collection or offset
under subpart H of this part.
Sec. 725.311 Communications with respect to claims; time computations.
(a) Unless otherwise specified by this part, all requests,
responses, notices, decisions, orders, or other communications required
or permitted by this part shall be in writing.
(b) If required by this part, any document, brief, or other
statement
[[Page 3397]]
submitted in connection with the adjudication of a claim under this
part shall be sent to each party to the claim by the submitting party.
If proof of service is required with respect to any communication, such
proof of service shall be submitted to the appropriate adjudication
officer and filed as part of the claim record.
(c) In computing any period of time described in this part, by any
applicable statute, or by the order of any adjudication officer, the
day of the act or event from which the designated period of time begins
to run shall not be included. The last day of the period shall be
included unless it is a Saturday, Sunday, or legal holiday, in which
event the period extends until the next day which is not a Saturday,
Sunday, or legal holiday. ``Legal holiday'' includes New Year's Day,
Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day and any other day appointed as a
holiday by the President or the Congress of the United States.
(d) In any case in which a provision of this part requires a
document to be sent to a person or party by certified mail, and the
document is not sent by certified mail, but the person or party
actually received the document, the document shall be deemed to have
been sent in compliance with the provisions of this part. In such a
case, any time period which commences upon the service of the document
shall commence on the date the document was received.
Subpart D--Adjudication Officers; Parties and Representatives
Sec. 725.350 Who are the adjudication officers.
(a) General. The persons authorized by the Secretary of Labor to
accept evidence and decide claims on the basis of such evidence are
called ``adjudication officers.'' This section describes the status of
black lung claims adjudication officers.
(b) District Director. The district director is that official of
the DCMWC or his designee who is authorized to perform functions with
respect to the development, processing, and adjudication of claims in
accordance with this part.
(c) Administrative law judge. An administrative law judge is that
official appointed pursuant to 5 U.S.C. 3105 (or Public Law 94-504) who
is qualified to preside at hearings under 5 U.S.C. 557 and is empowered
by the Secretary to conduct formal hearings with respect to, and
adjudicate, claims in accordance with this part. A person appointed
under Public Law 94-504 shall not be considered an administrative law
judge for purposes of this part for any period after March 1, 1979.
Sec. 725.351 Powers of adjudication officers.
(a) District Director. The district director is authorized to:
(1) Make determinations with respect to claims as is provided in
this part;
(2) Conduct conferences and informal discovery proceedings as
provided in this part;
(3) Compel the production of documents by the issuance of a
subpoena, with the written approval of the Director;
(4) Prepare documents for the signature of parties;
(5) Issue appropriate orders as provided in this part; and
(6) Do all other things necessary to enable him or her to discharge
the duties of the office.
(b) Administrative Law Judge. An administrative law judge is
authorized to:
(1) Conduct formal hearings in accordance with the provisions of
this part;
(2) Administer oaths and examine witnesses;
(3) Compel the production of documents and appearance of witnesses
by the issuance of subpoenas;
(4) Issue decisions and orders with respect to claims as provided
in this part; and
(5) Do all other things necessary to enable him or her to discharge
the duties of the office.
(c) If any person in proceedings before an adjudication officer
disobeys or resists any lawful order or process, or misbehaves during a
hearing or so near the place thereof as to obstruct the same, or
neglects to produce, after having been ordered to do so, any pertinent
book, paper or document, or refuses to appear after having been
subpoenaed, or upon appearing refuses to take the oath as a witness, or
after having taken the oath refuses to be examined according to law,
the district director with the approval of the Director, or the
administrative law judge responsible for the adjudication of the claim,
shall certify the facts to the Federal district court having
jurisdiction in the place in which he or she is sitting (or to the U.S.
District Court for the District of Columbia if he or she is sitting in
the District) which shall thereupon in a summary manner hear the
evidence as to the acts complained of, and, if the evidence so
warrants, punish such person in the same manner and to the same extent
as for a contempt committed before the court, or commit such person
upon the same condition as if the doing of the forbidden act had
occurred with reference to the process or in the presence of the court.
Sec. 725.352 Disqualification of adjudication officer.
(a) No adjudication officer shall conduct any proceedings in a
claim in which he or she is prejudiced or partial, or where he or she
has any interest in the matter pending for decision. A decision to
withdraw from the consideration of a claim shall be within the
discretion of the adjudication officer. If that adjudication officer
withdraws, another officer shall be designated by the Director or the
Chief Administrative Law Judge, as the case may be, to complete the
adjudication of the claim.
(b) No adjudication officer shall be permitted to appear or act as
a representative of a party under this part while such individual is
employed as an adjudication officer. No adjudication officer shall be
permitted at any time to appear or act as a representative in
connection with any case or claim in which he or she was personally
involved. No fee or reimbursement shall be awarded under this part to
an individual who acts in violation of this paragraph.
(c) No adjudication officer shall act in any claim involving a
party which employed such adjudication officer within one year before
the adjudication of such claim.
(d) Notwithstanding paragraph (a) of this section, no adjudication
officer shall be permitted to act in any claim involving a party who is
related to the adjudication officer by consanguinity or affinity within
the third degree as determined by the law of the place where such party
is domiciled. Any action taken by an adjudication officer in knowing
violation of this paragraph shall be void.
Sec. 725.360 Parties to proceedings.
(a) Except as provided in Sec. 725.361, no person other than the
Secretary of Labor and authorized personnel of the Department of Labor
shall participate at any stage in the adjudication of a claim for
benefits under this part, unless such person is determined by the
appropriate adjudication officer to qualify under the provisions of
this section as a party to the claim. The following persons shall be
parties:
(1) The claimant;
(2) A person other than a claimant, authorized to execute a claim
on such claimant's behalf under Sec. 725.301;
[[Page 3398]]
(3) Any coal mine operator notified under Sec. 725.407 of its
possible liability for the claim;
(4) Any insurance carrier of such operator; and
(5) The Director in all proceedings relating to a claim for
benefits under this part.
(b) A widow, child, parent, brother, or sister, or the
representative of a decedent's estate, who makes a showing in writing
that his or her rights with respect to benefits may be prejudiced by a
decision of an adjudication officer, may be made a party.
(c) Any coal mine operator or prior operator or insurance carrier
which has not been notified under Sec. 725.407 and which makes a
showing in writing that its rights may be prejudiced by a decision of
an adjudication officer may be made a party.
(d) Any other individual may be made a party if that individual's
rights with respect to benefits may be prejudiced by a decision to be
made.
Sec. 725.361 Party amicus curiae.
At the discretion of the Chief Administrative Law Judge or the
administrative law judge assigned to the case, a person or entity which
is not a party may be allowed to participate amicus curiae in a formal
hearing only as to an issue of law. A person may participate amicus
curiae in a formal hearing upon written request submitted with
supporting arguments prior to the hearing. If the request is granted,
the administrative law judge hearing the case will inform the party of
the extent to which participation will be permitted. The request may,
however, be denied summarily and without explanation.
Sec. 725.362 Representation of parties.
(a) Except for the Secretary of Labor, whose interests shall be
represented by the Solicitor of Labor or his or her designee, each of
the parties may appoint an individual to represent his or her interest
in any proceeding for determination of a claim under this part. Such
appointment shall be made in writing or on the record at the hearing.
An attorney qualified in accordance with Sec. 725.363(a) shall file a
written declaration that he or she is authorized to represent a party,
or declare his or her representation on the record at a formal hearing.
Any other person (see Sec. 725.363(b)) shall file a written notice of
appointment signed by the party or his or her legal guardian, or enter
his or her appearance on the record at a formal hearing if the party he
or she seeks to represent is present and consents to the
representation. Any written declaration or notice required by this
section shall include the OWCP number assigned by the Office and shall
be sent to the Office or, for representation at a formal hearing, to
the Chief Administrative Law Judge. In any case, such representative
must be qualified under Sec. 725.363. No authorization for
representation or agreement between a claimant and representative as to
the amount of a fee, filed with the Social Security Administration in
connection with a claim under part B of title IV of the Act, shall be
valid under this part. A claimant who has previously authorized a
person to represent him or her in connection with a claim originally
filed under part B of title IV may renew such authorization by filing a
statement to such effect with the Office or appropriate adjudication
officer.
(b) Any party may waive his or her right to be represented in the
adjudication of a claim. If an adjudication officer determines, after
an appropriate inquiry has been made, that a claimant who has been
informed of his or her right to representation does not wish to obtain
the services of a representative, such adjudication officer shall
proceed to consider the claim in accordance with this part, unless it
is apparent that the claimant is, for any reason, unable to continue
without the help of a representative. However, it shall not be
necessary for an adjudication officer to inquire as to the ability of a
claimant to proceed without representation in any adjudication taking
place without a hearing. The failure of a claimant to obtain
representation in an adjudication taking place without a hearing shall
be considered a waiver of the claimant's right to representation.
However, at any time during the processing or adjudication of a claim,
any claimant may revoke such waiver and obtain a representative.
Sec. 725.363 Qualification of representative.
(a) Attorney. Any attorney in good standing who is admitted to
practice before a court of a State, territory, district, or insular
possession, or before the Supreme Court of the United States or other
Federal court and is not, pursuant to any provision of law, prohibited
from acting as a representative, may be appointed as a representative.
(b) Other person. With the approval of the adjudication officer,
any other person may be appointed as a representative so long as that
person is not, pursuant to any provision of law, prohibited from acting
as a representative.
Sec. 725.364 Authority of representative.
A representative, appointed and qualified as provided in
Secs. 725.362 and 725.363, may make or give on behalf of the party he
or she represents, any request or notice relative to any proceeding
before an adjudication officer, including formal hearing and review,
except that such representative may not execute a claim for benefits,
unless he or she is a person designated in Sec. 725.301 as authorized
to execute a claim. A representative shall be entitled to present or
elicit evidence and make allegations as to facts and law in any
proceeding affecting the party represented and to obtain information
with respect to the claim of such party to the same extent as such
party. Notice given to any party of any administrative action,
determination, or decision, or request to any party for the production
of evidence shall be sent to the representative of such party and such
notice or request shall have the same force and effect as if it had
been sent to the party represented.
Sec. 725.365 Approval of representative's fees; lien against benefits.
No fee charged for representation services rendered to a claimant
with respect to any claim under this part shall be valid unless
approved under this subpart. No contract or prior agreement for a fee
shall be valid. In cases where the obligation to pay the attorney's fee
is upon the claimant, the amount of the fee awarded may be made a lien
upon the benefits due under an award and the adjudication officer shall
fix, in the award approving the fee, such lien and the manner of
payment of the fee. Any representative who is not an attorney may be
awarded a fee for services under this subpart, except that no lien may
be imposed with respect to such representative's fee.
Sec. 725.366 Fees for representatives.
(a) A representative seeking a fee for services performed on behalf
of a claimant shall make application therefor to the district director,
administrative law judge, or appropriate appellate tribunal, as the
case may be, before whom the services were performed. The application
shall be filed and served upon the claimant and all other parties
within the time limits allowed by the district director, administrative
law judge, or appropriate appellate tribunal. The application shall be
supported by a complete statement of the extent and character of the
necessary work done, and shall indicate the professional status (e.g.,
attorney, paralegal, law clerk, lay representative or clerical) of the
person performing such work, and
[[Page 3399]]
the customary billing rate for each such person. The application shall
also include a listing of reasonable unreimbursed expenses, including
those for travel, incurred by the representative or an employee of a
representative in establishing the claimant's case. Any fee requested
under this paragraph shall also contain a description of any fee
requested, charged, or received for services rendered to the claimant
before any State or Federal court or agency in connection with a
related matter.
(b) Any fee approved under paragraph (a) of this section shall be
reasonably commensurate with the necessary work done and shall take
into account the quality of the representation, the qualifications of
the representative, the complexity of the legal issues involved, the
level of proceedings to which the claim was raised, the level at which
the representative entered the proceedings, and any other information
which may be relevant to the amount of fee requested. No fee approved
shall include payment for time spent in preparation of a fee
application. No fee shall be approved for work done on claims filed
between December 30, 1969, and June 30, 1973, under part B of title IV
of the Act, except for services rendered on behalf of the claimant in
regard to the review of the claim under section 435 of the Act and part
727 of this subchapter (see Sec. 725.4(d)).
(c) In awarding a fee, the appropriate adjudication officer shall
consider, and shall add to the fee, the amount of reasonable and
unreimbursed expenses incurred in establishing the claimant's case.
Reimbursement for travel expenses incurred by an attorney shall be
determined in accordance with the provisions of Sec. 725.459(a). No
reimbursement shall be permitted for expenses incurred in obtaining
medical or other evidence which has previously been submitted to the
Office in connection with the claim.
(d) Upon receipt of a request for approval of a fee, such request
shall be reviewed and evaluated by the appropriate adjudication officer
and a fee award issued. Any party may request reconsideration of a fee
awarded by the adjudication officer. A revised or modified fee award
may then be issued, if appropriate.
(e) Each request for reconsideration or review of a fee award shall
be in writing and shall contain supporting statements or information
pertinent to any increase or decrease requested. If a fee awarded by a
district director is disputed, such award shall be appealable directly
to the Benefits Review Board. In such a fee dispute case, the record
before the Board shall consist of the order of the district director
awarding or denying the fee, the application for a fee, any written
statement in opposition to the fee and the documentary evidence
contained in the file which verifies or refutes any item claimed in the
fee application.
Sec. 725.367 Payment of a claimant's attorney's fee by responsible
operator or fund.
(a) An attorney who represents a claimant in the successful
prosecution of a claim for benefits may be entitled to collect a
reasonable attorney's fee from the responsible operator that is
ultimately found liable for the payment of benefits, or, in a case in
which there is no operator who is liable for the payment of benefits,
from the fund. Generally, an attorney who represents a successful
claimant may obtain payment of his or her fee where the operator or
fund, as appropriate, took action, or acquiesced in action, that
created an adversarial relationship between itself and the claimant.
Circumstances in which a successful attorney's fees shall be payable by
the responsible operator or the fund include, but are not limited to,
the following:
(1) If the responsible operator initially found to be liable for
the payment of benefits by the district director (see Sec. 725.410(a))
contests the claimant's eligibility for benefits, either by filing a
response pursuant to Sec. 725.411(b)(1), or, in a case in which the
district director issues an initial finding that the claimant is not
eligible for benefits, by failing to file a response. The operator that
is ultimately determined to be liable for benefits shall be liable for
an attorney's fee with respect to all reasonable services performed by
the claimant's attorney after the date of the responsible operator's
response or the date on which it was due, whichever is earlier;
(2) If there is no operator that may be held liable for the payment
of benefits, and the district director issues an initial finding that
the claimant is not eligible for benefits. The fund shall be liable for
an attorney's fee with respect to all reasonable services performed by
the claimant's attorney after the date on which the district director
issued the initial finding;
(3) If the claimant submits a bill for medical treatment, and the
party liable for the payment of benefits declines to pay the bill on
the grounds that the treatment is unreasonable, or is for a condition
that is not compensable. The responsible operator or fund, as
appropriate, shall be liable for an attorney's fee with respect to all
reasonable services performed by the claimant's attorney after the date
on which the liable party declined to pay;
(4) If a beneficiary seeks an increase in the amount of benefits
payable, and the responsible operator or fund issues a notice of
controversion contesting the claimant's right to that increase. If the
beneficiary is successful in securing an increase in the amount of
benefits payable, the operator or fund shall be liable for an
attorney's fee with respect to all reasonable services performed by the
beneficiary's attorney after the date on which the operator or fund
contested the increase; and
(5) If the responsible operator or fund seeks a decrease in the
amount of benefits payable. If the beneficiary is successful in
resisting the request for a decrease in the amount of benefits payable,
the operator or fund shall be liable for an attorney's fee with respect
to all reasonable services performed by the beneficiary's attorney
after the date of the request by the operator or fund. A request for
information clarifying the amount of benefits payable shall not be
considered a request to decrease that amount.
(b) In no event shall an operator or the fund be liable for the
payment of attorney's fees with respect to any services performed prior
to the dates specified in this section.
(c) Any fee awarded under this section shall be in addition to the
award of benefits, and shall be awarded, in an order, by the district
director, administrative law judge, Board or court, before whom the
work was performed. The operator or fund shall pay such fee promptly
and directly to the claimant's attorney in a lump sum after the award
of benefits becomes final.
(d) Section 205(a) of the Black Lung Benefits Amendments of 1981,
Public Law 97-119, amended section 422 of the Act and relieved
operators and carriers from liability for the payment of benefits on
certain claims. Payment of benefits on those claims was made the
responsibility of the fund. The claims subject to this transfer of
liability are described in Sec. 725.496 of this part. On claims subject
to the transfer of liability described in this paragraph the fund will
pay all fees and costs which have been or will be awarded to claimant's
attorneys which were or would have become the liability of an operator
or carrier but for the enactment of the 1981 Amendments and which have
not already been paid by such operator or carrier. Section 9501(d)(7)
of the Internal Revenue Code, which was also enacted as a part of the
1981 Amendments to the Act, expressly prohibits the fund from
reimbursing an
[[Page 3400]]
operator or carrier for any attorney fees or costs which it has paid on
cases subject to the transfer of liability provisions.
Subpart E--Adjudication of Claims by the District Director
Sec. 725.401 Claims development--general.
After a claim has been received by the district director, the
district director shall take such action as is necessary to develop,
process, and make determinations with respect to the claim as provided
in this subpart.
Sec. 725.402 Approved State workers' compensation law.
If a district director determines that any claim filed under this
part is one subject to adjudication under a workers' compensation law
approved under part 722 of this subchapter, he or she shall advise the
claimant of this determination and of the Act's requirement that the
claim must be filed under the applicable State workers' compensation
law. The district director shall then prepare a proposed decision and
order dismissing the claim for lack of jurisdiction pursuant to
Sec. 725.418 and proceed as appropriate.
Sec. 725.403 Requirement to file under State workers' compensation
law--section 415 claims.
(a) No benefits shall be payable to or on behalf of a claimant who
has filed a claim under section 415 of part B of title IV of the Act,
for any period of eligibility occurring between July 1, and December
31, 1973, unless the claimant has filed and diligently pursued a claim
for benefits under an applicable State workers' compensation law. A
State workers' compensation claim need not be filed where filing would
be futile. It shall be determined that the filing of a State claim
would be futile when:
(1) The period within which the claim may be filed under such law
has expired; or
(2) Pneumoconiosis as defined in part 718 of this subchapter is not
compensable under such law; or
(3) The maximum amount of compensation or the maximum number of
compensation payments allowable under such law has already been paid;
or
(4) The claimant does not meet one or more conditions of
eligibility for workers' compensation payments under applicable State
law; or
(5) The claimant otherwise establishes to the satisfaction of the
Office that the filing of a claim under State law would be futile.
(b) Where the Office determines that a claimant is required to file
a State claim under this section, the Office shall so notify the
claimant. Such notice shall instruct the claimant to file a State claim
within 30 days of such notice. If no such State claim is filed within
the 30-day period, no benefits shall be payable under this part to the
claimant for any period between July 1, and December 31, 1973.
(c) The failure of a claimant to comply with paragraph (a) of this
section shall not absolve any operator of its liability for the payment
of benefits to a claimant for periods of eligibility occurring on or
after January 1, 1974.
(d) The district director may determine that a claimant is
ineligible for benefits under section 415 of part B of title IV of the
Act without requiring the claimant to file a claim under a State
workers' compensation law.
Sec. 725.404 Development of evidence--general.
(a) Employment history. Each claimant shall furnish the district
director with a complete and detailed history of the coal miner's
employment and, upon request, supporting documentation.
(b) Matters of record. Where it is necessary to obtain proof of
age, marriage or termination of marriage, death, family relationship,
dependency (see subpart B of this part), or any other fact which may be
proven as a matter of public record, the claimant shall furnish such
proof to the district director upon request.
(c) Documentary evidence. If a claimant is required to submit
documents to the district director, the claimant shall submit either
the original, a certified copy or a clear readable copy thereof. The
district director or administrative law judge may require the
submission of an original document or certified copy thereof, if
necessary.
(d) Submission of insufficient evidence. In the event a claimant
submits insufficient evidence regarding any matter, the district
director shall inform the claimant of what further evidence is
necessary and request that such evidence be submitted within a
specified reasonable time which may, upon request, be extended for good
cause.
Sec. 725.405 Development of medical evidence; scheduling of medical
examinations and tests.
(a) Upon receipt of a claim, the district director shall ascertain
whether the claim was filed by or on account of a miner as defined in
Sec. 725.202, and in the case of a claim filed on account of a deceased
miner, whether the claim was filed by an eligible survivor of such
miner as defined in subpart B of this part.
(b) In the case of a claim filed by or on behalf of a miner, the
district director shall, where necessary, schedule the miner for a
medical examination and testing under Sec. 725.406.
(c) In the case of a claim filed by or on behalf of a survivor of a
miner, the district director shall obtain whatever medical evidence is
necessary and available for the development and evaluation of the
claim.
(d) The district director shall, where appropriate, collect other
evidence necessary to establish:
(1) The nature and duration of the miner's employment; and
(2) All other matters relevant to the determination of the claim.
(e) If at any time during the processing of the claim by the
district director, the evidence establishes that the claimant is not
entitled to benefits under the Act, the district director may terminate
evidentiary development of the claim and proceed as appropriate.
Sec. 725.406 Medical examinations and tests.
(a) The Act requires the Department to provide each miner who
applies for benefits with the opportunity to undergo a complete
pulmonary evaluation at no expense to the miner. A complete pulmonary
evaluation includes a report of physical examination, a pulmonary
function study, a chest roentgenogram and, unless medically
contraindicated, a blood gas study.
(b) The district director will arrange for each miner to be given a
complete pulmonary evaluation by a physician or medical facility
selected by the Office. The evaluation shall be conducted, if possible,
in the vicinity of the miner's residence. The district director will
notify the miner of these arrangements, and inform the miner that he
may select an alternate physician or facility. The district director
will also inform the miner of the consequences of selecting an
alternate physician or facility, as provided by paragraphs (c) and (d)
of this section.
(c) If the miner selects an alternate physician or facility, the
complete pulmonary evaluation performed under this section shall count
as one of the two evaluations which the claimant may submit in support
of his claim (see Sec. 725.414). If the physician or facility selected
by the miner cannot perform one or more of the tests which make up a
complete pulmonary evaluation, the district director will arrange for
the miner to have these tests performed at a facility selected by the
Office prior to
[[Page 3401]]
his examination by the physician or facility he has selected. A copy of
any such tests shall be provided to the physician or facility selected
by the miner.
(d) If any medical examination or test conducted under paragraph
(a) of this section is not administered or reported in substantial
compliance with the provisions of part 718 of this subchapter, or does
not provide sufficient information to allow the district director to
decide whether the miner is eligible for benefits, the district
director shall schedule the miner for further examination and testing
where necessary and appropriate, provided that the deficiencies in the
report are not the result of any lack of effort on the part of the
miner. In order to determine whether any medical examination or test
was administered and reported in substantial compliance with the
provisions of part 718 of this subchapter, the district director may
have any component of such examination or test reviewed by a physician
selected by the district director. If the miner selected the physician
or facility that performed the test, the district director shall notify
the miner, and the physician or facility, of the reasons why the report
is not in substantial compliance with the provisions of part 718, or
does not provide sufficient information, and shall allow the miner
reasonable additional time within which to correct any deficiency.
(e) If, at any time after the completion of the initial complete
pulmonary evaluation, unresolved medical questions remain, the district
director may cause the claimant to be examined by a physician or
medical facility selected by the district director. If additional
medical evidence is obtained in accordance with this paragraph, the
district director may order the physician selected to retest or
reexamine the miner to do so without the presence or participation of
any other physician who previously examined the miner, and without
benefit of the conclusions of any other physician who has examined the
miner.
(f) The cost of any medical examination or test authorized under
this section, including the cost of travel to and from the examination,
shall be paid by the fund. No reimbursement for overnight
accommodations shall be authorized unless the district director
determines that an adequate testing facility is unavailable within one
day's round trip travel by automobile from the miner's residence. The
fund shall be reimbursed for such payments by an operator, if any,
found liable for the payment of benefits to the claimant. If an
operator fails to repay such expenses, with interest, upon request of
the Office, the entire amount may be collected in an action brought
under section 424 of the Act and Sec. 725.603 of this part.
Sec. 725.407 Identification and notification of responsible operator.
(a) Upon receipt of the miner's employment history, the district
director shall investigate whether any operator may be held liable for
the payment of benefits as a responsible operator in accordance with
the criteria contained in subpart G of this part.
(b) Prior to issuing an initial finding pursuant to Sec. 725.410,
the district director may identify one or more operators potentially
liable for the payment of benefits in accordance with the criteria set
forth in Sec. 725.495 of this part. The district director shall notify
each such operator of the existence of the claim. Where the records
maintained by the Office pursuant to part 726 of this subchapter
indicate that the operator had obtained a policy of insurance, and the
claim falls within such policy, the notice provided pursuant to this
section shall also be sent to the operator's carrier. Any operator or
carrier notified of the claim shall thereafter be considered a party to
the claim in accordance with Sec. 725.360 of this part unless it is
dismissed by an adjudication officer and is not thereafter notified
again of its potential liability.
(c) The notification issued pursuant to this section shall include
a copy of the claimant's application and a copy of all evidence
obtained by the district director relating to the miner's employment.
The district director may request the operator to answer specific
questions, including, but not limited to, questions related to the
nature of its operations, its relationship with the miner, its
financial status, including any insurance obtained to secure its
obligations under the Act, and its relationship with other potentially
liable operators. A copy of any notification issued pursuant to this
section shall be sent to the claimant by regular mail.
(d) If at any time before a case is referred to the Office of
Administrative Law Judges, the district director determines that an
operator which may be liable for the payment of benefits has not been
notified under this section or has been incorrectly dismissed pursuant
to Sec. 725.413(c)(1), the district director shall give such operator
notice of its potential liability in accordance with this section. The
adjudication officer shall then take such further action on the claim
as may be appropriate. There shall be no time limit applicable to a
later identification of an operator under this paragraph if the
operator fraudulently concealed its identity as an employer of the
miner.
Sec. 725.408 Operator's response to notification.
(a)(1) An operator which receives notification under Sec. 725.407
shall, within 30 days of receipt, file a response, and shall indicate
its intent to accept or contest its identification as a potentially
liable operator. The operator's response shall also be sent to the
claimant by regular mail.
(2) If the operator contests its identification, it shall, on a
form supplied by the district director, state the precise nature of its
disagreement by admitting or denying each of the following assertions.
In answering these assertions, the term ``operator'' shall include any
operator for which the identified operator may be considered a
successor operator pursuant to Sec. 725.492.
(i) That the named operator was an operator for any period after
June 30, 1973;
(ii) That the operator employed the miner as a miner for a
cumulative period of not less than one year;
(iii) That the miner was exposed to coal mine dust while working
for the operator;
(iv) That the miner's employment with the operator included at
least one working day after December 31, 1969; and
(v) That the operator is capable of assuming liability for the
payment of benefits.
(3) An operator which receives notification under Sec. 725.407, and
which fails to file a response within the time limit provided by this
section, shall not be allowed to contest its liability for the payment
of benefits on the grounds set forth in paragraph (a)(2).
(b)(1) Within 60 days of the date on which it receives notification
under Sec. 725.407, an operator may submit documentary evidence in
support of its position.
(2) No documentary evidence relevant to the grounds set forth in
paragraph (a)(2) may be admitted in any further proceedings unless it
is submitted within the time limits set forth in this section.
Sec. 725.409 Denial of a claim by reason of abandonment.
(a) A claim may be denied at any time by the district director by
reason of abandonment where the claimant fails:
(1) To undergo a required medical examination without good cause;
or,
[[Page 3402]]
(2) To submit evidence sufficient to make a determination of the
claim; or,
(3) To pursue the claim with reasonable diligence; or,
(4) To attend an informal conference without good cause.
(b) If the district director determines that a denial by reason of
abandonment is appropriate, he or she shall notify the claimant of the
reasons for such denial and of the action which must be taken to avoid
a denial by reason of abandonment. If the claimant completes the action
requested within the time allowed, the claim shall be developed,
processed and adjudicated as specified in this part. If the claimant
does not fully comply with the action requested by the district
director, the district director shall notify the claimant that the
claim has been denied by reason of abandonment. Any request for a
hearing prior to the issuance of such notification shall be considered
invalid and of no effect. Such notification shall be served on the
claimant and all other parties to the claim by certified mail. The
denial shall become effective and final unless, within 30 days after
the denial is issued, the claimant requests a hearing. If the claimant
timely requests a hearing, the district director shall refer the case
to the Office of Administrative Law Judges in accordance with
Sec. 725.421. The hearing will be limited to the issue of whether the
claim was properly denied by reason of abandonment. Following the
expiration of the 30-day period, a new claim may be filed at any time
pursuant to Sec. 725.309.
Sec. 725.410 Initial findings by the district director.
(a) Based upon the evidence developed, the district director shall
make an initial finding with respect to the claim. The initial finding
shall include a determination with respect to the claimant's
eligibility and a determination with respect to whether any of the
operators notified of potential liability under Sec. 725.407 of this
part is the responsible operator in accordance with Sec. 725.495 of
this part.
(b) The district director shall serve the initial finding, together
with a copy of all of the evidence developed, on the claimant, the
responsible operator, and all other operators which received
notification pursuant to Sec. 725.407 of this part. The initial finding
shall be served on each party by certified mail.
(c) If the evidence submitted does not support a finding of
eligibility, the initial finding shall specify the reasons why the
claim cannot be approved and the additional evidence necessary to
establish entitlement. The initial finding shall notify the claimant
that he has the right to obtain further adjudication of his eligibility
in accordance with this subpart, that he has the right to submit
additional evidence in accordance with this subpart, and that he has
the right to obtain counsel, under the terms set forth in subpart D, in
order to assist him. The initial finding shall further notify the
claimant that, if he establishes his entitlement to benefits, the cost
of obtaining additional evidence, along with a reasonable attorney's
fee, shall be reimbursed by the responsible operator, or, if no
operator can be held liable, the fund.
Sec. 725.411 Initial finding--eligibility.
(a) Claimant response--(1) Finding that the claimant is not
eligible for benefits. (i) Within one year after the district director
issues an initial finding that the claimant is not eligible for
benefits, the claimant may request further adjudication of the claim.
Any statement filed during the applicable time period demonstrating the
claimant's intention to pursue his or her claim shall be considered a
request for further adjudication in accordance with this section. The
claimant may not request a hearing at this point. Any request for a
hearing prior to the issuance of a proposed decision and order shall be
considered invalid and of no effect.
(ii) If the claimant does not request further adjudication of the
claim within the time limits set forth in this section, the claim shall
be deemed to have been denied, effective as of the date of the issuance
of the initial finding. Any submission by the claimant after the time
limits set forth in this section will be treated as an intent to file a
new claim for benefits in accordance with Sec. 725.305. Such a claim
may be approved only if it meets the conditions of Sec. 725.309.
(2) Finding that the claimant is eligible for benefits. If the
district director issues an initial finding that the evidence submitted
supports a finding of eligibility, the claimant may, within 30 days of
the issuance of the initial finding, request revision of any of the
terms of the initial finding. If the claimant does not file a timely
request pursuant to this paragraph, he shall be deemed to have accepted
the district director's initial finding.
(b) Operator response. (1) Within 30 days of the issuance of an
initial finding, the responsible operator initially found liable for
the payment of benefits shall file a response with regard to the
claimant's eligibility for benefits. The response shall specifically
indicate whether the operator agrees or disagrees with the initial
finding of eligibility. A response that the operator is not liable for
benefits shall not be sufficient to contest the claimant's eligibility
under this section. A response to the initial finding of eligibility
shall be filed regardless of whether the district director finds the
claimant eligible for benefits.
(2) If the operator initially found liable for the payment of
benefits does not file a timely response, it shall be deemed to have
accepted the district director's initial finding with respect to the
claimant's eligibility, and shall not, except as provided in
Sec. 725.463, be permitted to raise issues or present evidence with
respect to issues inconsistent with the initial findings in any further
proceeding conducted with respect to the claim.
Sec. 725.412 Initial finding-liability.
(a) Within 30 days of the issuance of an initial finding, the
responsible operator initially found liable for the payment of benefits
shall file a response with regard to its liability for benefits. The
response shall specifically indicate whether the operator agrees or
disagrees with the initial finding of liability. A response that the
operator is not liable for benefits under this section shall not be
sufficient to contest the claimant's eligibility. A response to the
initial finding of liability shall be filed regardless of whether or
not the district director finds the claimant eligible for benefits.
(b) If the responsible operator initially found liable for the
payment of benefits does not file a timely response, it shall be deemed
to have accepted the district director's initial finding with respect
to its liability, and to have waived its right to contest its liability
in any further proceeding conducted with respect to the claim.
Sec. 725.413 Initial adjudication by the district director.
(a) If the district director issues an initial finding that the
evidence submitted supports a finding of eligibility, and
(1) The responsible operator does not file a timely response under
either Sec. 725.411 or Sec. 725.412, or
(2) There is no operator responsible for the payment of benefits,
the district director shall, after considering any request filed by the
claimant pursuant to Sec. 725.411(a)(2), issue a proposed decision and
order in accordance with Sec. 725.418.
(b) If the district director issues an initial finding that the
evidence submitted does not support a finding of eligibility, and the
claimant does not file a timely response pursuant to Sec. 725.411,
[[Page 3403]]
the claim shall be considered to have been denied, effective as of the
date of the issuance of the initial finding. Any later submission by
the claimant will be treated as an intent to file a claim for benefits
in accordance with Sec. 725.305. Such a claim may be approved only if
it meets the conditions of Sec. 725.309.
(c)(1) In all other cases, the district director shall, following
the expiration of all applicable time periods for filing responses, or
the receipt of responses, notify all parties of any responses received
from the claimant and the responsible operator. The district director
may, in his discretion, dismiss as parties any of the operators
notified of their potential liability pursuant to Sec. 725.407. If the
district director thereafter determines that the participation of a
party dismissed pursuant to this section is required, he may once again
notify the operator in accordance with Sec. 725.407(d).
(2) The district director shall notify the parties of a schedule
for submitting documentary evidence. Such schedule shall allow the
parties not less than 60 days within which to submit evidence in
support of their contentions, and shall provide not less than an
additional 30 days within which the parties may respond to evidence
submitted by other parties. Any such evidence must meet the
requirements set forth in Sec. 725.414 in order to be admitted into the
record.
Sec. 725.414 Development of evidence.
(a) Medical evidence--(1)(i) Pulmonary evaluation. For purposes of
this section, a pulmonary evaluation shall consist of one chest
roentgenogram, one pulmonary function study, one report of physical
examination, and the results of such other testing, including arterial
blood gas testing, as the physician who prepares the report of physical
examination deems necessary to fully evaluate the claimant's
respiratory and pulmonary condition. The tests need not be performed at
the same facility, nor be administered or supervised by the same
physician.
(ii) Consultative report. For purposes of this section, a
consultative report shall consist of the opinion of a physician based
on a review of any medical evidence relevant to the miner's respiratory
or pulmonary condition.
(2) The claimant shall be entitled to submit the results of up to
two pulmonary evaluations or consultative reports. If the claimant
selected the physician who prepared the report of physical examination
pursuant to Sec. 725.406 of this part, the complete pulmonary
evaluation obtained pursuant to that section shall be considered one of
the two evaluations or reports that the claimant may submit.
(3) The Department intends that all parties to a claim, including
all operators notified of their potential liability under Sec. 725.407
that have not been dismissed, shall be bound by a final adjudication of
the claimant's eligibility. Accordingly, any operator notified of its
potential liability in accordance with Sec. 725.407 shall not be
entitled to require the claimant to re-adjudicate his eligibility in
the event the district director's initial finding with respect to the
responsible operator is determined to have been erroneous.
(i) The responsible operator and any other operators that remain
parties to the case shall collectively be entitled to obtain and submit
the results of no more than two pulmonary evaluations or consultative
reports. In obtaining such evaluations, no miner shall be required to
travel more than 100 miles from his or her place of residence for the
purpose of submitting to a pulmonary evaluation requested by an
operator, unless a trip of greater distance is authorized in writing by
the district director. If a miner unreasonably refuses--
(A) To provide the Office or a coal mine operator with a complete
statement of his or her medical history and/or to authorize access to
his or her medical records, or
(B) To submit to an evaluation or test requested by the district
director or a potentially liable operator, the miner's claim may be
denied by reason of abandonment (See Sec. 725.409 of this part).
(ii) In a case in which the district director has not identified
any potentially liable operators, the district director shall be
entitled to exercise the rights of a responsible operator under this
section, except that in any case where the complete pulmonary
evaluation performed pursuant to Sec. 725.406 was performed by a
physician selected by the district director, the evaluation shall be
admitted into evidence, and shall be considered one of the two
evaluations or reports that the district director may submit.
(iii) Except for the responsible operator, any operator notified of
its potential liability pursuant to Sec. 725.407, and which has not
been dismissed as a party by the district director, must request
permission of the district director to obtain an independent pulmonary
evaluation of the miner, or to submit a consultative report. Such
permission shall be granted only upon a showing that the responsible
operator has not undertaken a full development of the evidence, and
that without such permission, the potentially liable operator will be
unable to secure a full and fair litigation of the claimant's
eligibility. In granting such permission, the district director may
take such action as is necessary to prevent the miner from undergoing
unnecessary testing, and shall ensure that the record contains no more
than two pulmonary evaluations or consultative reports submitted by the
parties opposing the claimant's eligibility.
(4) Notwithstanding the limitations in paragraph (a)(3) of this
section, any record of a miner's hospitalization for a pulmonary or
related disease, medical treatment for a pulmonary or related disease,
or a biopsy or autopsy may be received into evidence.
(5) A copy of any documentary evidence submitted by a party must be
served on all other parties to the claim. If the claimant is not
represented by an attorney, the district director shall mail a copy of
all documentary evidence submitted by the claimant to all other parties
to the claim. Following the development and submission of affirmative
medical evidence, the parties may submit rebuttal evidence in
accordance with the schedule issued by the district director. Such
rebuttal evidence shall include no more than one interpretive opinion
with respect to the results of each component of the pulmonary
evaluations submitted by the opposing party, and may not include a
third pulmonary evaluation of the miner.
(6) The district director shall admit into the record all evidence
submitted in accordance with this section, and shall also admit the
results of any medical evaluation or review conducted by a physician
selected by the district director pursuant to Sec. 725.406.
(b) Evidence pertaining to liability. (1) Except as provided by
Sec. 725.408(b)(2), the potential responsible operator may submit
evidence to demonstrate that it is not the potentially liable operator
that most recently employed the claimant. Failure to submit such
evidence shall be deemed an acceptance of the district director's
initial finding of liability.
(2) Any other party may submit evidence regarding the liability of
the potential responsible operator or any other operator.
(3) A copy of any documentary evidence submitted under this
paragraph must be mailed to all other parties to the claim. Following
the submission of affirmative evidence, the parties may submit rebuttal
evidence in accordance with the schedule issued by the district
director.
(c) Testimony. The claimant, and any person who prepared
documentary evidence submitted pursuant to this
[[Page 3404]]
section, may testify at any formal hearing conducted in accordance with
subpart F of this part with respect to the claim. In accordance with
the schedule issued by the district director, all parties shall notify
the district director of the name and current address of any other
witness that the party intends to call at such hearing. No testimony by
any witness who is not identified as a witness in accordance with this
section shall be admitted in any hearing conducted with respect to the
claim.
(d) Except to the extent permitted by Sec. 725.456, no documentary
evidence shall be admitted in any further proceeding conducted with
respect to a claim unless it is submitted to the district director in
accordance with this section.
Sec. 725.415 Action by the district director after development of
operator's evidence.
(a) At the end of the period permitted under Sec. 725.413(c)(2) for
the submission of evidence, the district director shall review the
claim on the basis of all evidence submitted in accordance with
Sec. 725.414.
(b) After review of all evidence submitted, the district director
may schedule a conference in accordance with Sec. 725.416, issue a
proposed decision and order in accordance with Sec. 725.418, or take
such other action as the district director considers appropriate.
Sec. 725.416 Conferences.
(a) At the conclusion of the period permitted by Sec. 725.413(c)(2)
for the submission of evidence, the district director may conduct an
informal conference in any claim where it appears that such conference
will assist in the voluntary resolution of any issue raised with
respect to the claim. The conference proceedings shall not be
stenographically reported and sworn testimony shall not be taken.
(b) The district director shall notify the parties of a definite
time and place for the conference and may in his or her discretion, or
on the motion of any party, cancel or reschedule a conference.
(c) The unexcused failure of any party to appear at an informal
conference shall be grounds for the imposition of sanctions. If the
claimant fails to appear, the district director may take such steps as
are authorized by Sec. 725.409 to deny the claim by reason of
abandonment. If the responsible operator fails to appear, it shall be
deemed to have waived its right to contest its potential liability for
an award of benefits and, in the discretion of the district director,
its right to contest any issue related to the claimant's eligibility.
(d) Any representative of an operator, of an operator's insurance
carrier, or of a claimant, authorized to represent such party in
accordance with Sec. 725.362, shall be deemed to have sufficient
authority to stipulate facts or issues or agree to a final disposition
of the claim.
(e) Procedures to be followed at a conference shall be within the
discretion of the district director. In the case of a conference
involving an unrepresented claimant, the district director shall fully
inform the claimant of the consequences of any agreement the claimant
is asked to sign. If it is apparent that the unrepresented claimant
does not understand the nature or effect of the proceedings, the
district director shall not permit the execution of any stipulation or
agreement in the claim unless it is clear that the best interests of
the claimant are served thereby.
Sec. 725.417 Action at the conclusion of conference.
(a) At the conclusion of a conference, the district director shall
prepare a stipulation of contested and uncontested issues which shall
be signed by the parties and the district director. If a hearing is
conducted with respect to the claim, this stipulation shall be
submitted to the Office of Administrative Law Judges and placed in the
claim record.
(b) In any case, where appropriate, the district director may
permit a reasonable time for the submission of additional evidence
following a conference, provided that such evidence does not exceed the
limits set forth in Sec. 725.414.
(c) Within 20 days after the termination of all conference
proceedings, the district director shall prepare and send to the
parties by certified mail a memorandum of conference, on a form
prescribed by the Office, summarizing the conference and including the
following:
(1) Date, time and place of conference;
(2) Names, addresses, telephone numbers, and status (i.e.,
claimant, attorney, operator, carrier's representative, etc.);
(3) Issues discussed at conference;
(4) Additional material presented (i.e., medical reports,
employment reports, marriage certificates, birth certificates, etc.);
(5) Issues resolved at conference; and
(6) District director's recommendation.
(d) Each party shall, in writing, either accept or reject, in whole
or in part, the district director's recommendation, stating the reasons
for such rejection. If no reply is received within 30 days from the
date on which the recommendation was sent to parties, the
recommendation shall be deemed accepted.
Sec. 725.418 Proposed decision and order.
(a) After evaluating the parties' responses to the district
director's recommendation pursuant to Sec. 725.417, or, if no informal
conference is to be held, at the conclusion of the period permitted by
Sec. 725.413(c)(2) for the submission of evidence, the district
director shall issue a proposed decision and order. A proposed decision
and order is a document, issued by the district director after the
evidentiary development of the claim is completed and all contested
issues, if any, are joined, which purports to resolve a claim on the
basis of the evidence submitted to or obtained by the district
director. A proposed decision and order shall be considered a final
adjudication of a claim only as provided in Sec. 725.419. A proposed
decision and order may be issued by the district director in any claim
and at any time during the adjudication of a claim if:
(1) Issuance is authorized or required by this part; or,
(2) The district director determines that its issuance will
expedite the adjudication of the claim.
(b) A proposed decision and order shall contain findings of fact
and conclusions of law and an appropriate order shall be served on all
parties to the claim by certified mail.
Sec. 725.419 Response to proposed decision and order.
(a) Within 30 days after the date of issuance of a proposed
decision and order, any party may, in writing, request a revision of
the proposed decision and order or a hearing. If a hearing is
requested, the district director shall refer the claim to the Office of
Administrative Law Judges (see Sec. 725.421).
(b) Any response made by a party to a proposed decision and order
shall specify the findings and conclusions with which the responding
party disagrees, and shall be served on the district director and all
other parties to the claim.
(c) If a timely request for revision of a proposed decision and
order is made, the district director may amend the proposed decision
and order, as circumstances require, and serve the revised proposed
decision and order on all parties or take such other action as is
appropriate. If a revised proposed decision and order is issued, each
party to the claim shall have 30 days from the date of issuance of that
revised
[[Page 3405]]
proposed decision and order within which to request a hearing.
(d) If no response to a proposed decision and order is sent to the
district director within the period described in paragraph (a) of this
section, or if no response to a revised proposed decision and order is
sent to the district director within the period described in paragraph
(c) of this section, the proposed decision and order shall become a
final decision and order, which is effective upon the expiration of the
applicable 30-day period. Once a proposed decision and order or revised
proposed decision and order becomes final and effective, all rights to
further proceedings with respect to the claim shall be considered
waived, except as provided in Sec. 725.310.
Sec. 725.420 Initial determinations.
(a) Section 9501(d)(1)(A)(1) of the Internal Revenue Code provides
that the Black Lung Disability Trust Fund shall begin the payment of
benefits on behalf of an operator in any case in which the operator
liable for such payments has not commenced payment of such benefits
within 30 days after the date of an initial determination of
eligibility by the Secretary. For claims filed on or after January 1,
1982, the payment of such interim benefits from the fund is limited to
benefits accruing after the date of such initial determination.
(b) Except as provided in Sec. 725.415 of this subpart, after the
district director has determined that a claimant is eligible for
benefits, on the basis of all evidence submitted by a claimant and
operator, and has determined that a hearing will be necessary to
resolve the claim, the district director shall in writing so inform the
parties and direct the operator to begin the payment of benefits to the
claimant in accordance with Sec. 725.522. The date on which this
writing is sent to the parties shall be considered the date of initial
determination of the claim.
(c) If a notified operator refuses to commence payment of a claim
within 30 days from the date on which an initial determination is made
under this section, benefits shall be paid by the fund to the claimant
in accordance with Sec. 725.522, and the operator shall be liable to
the fund, if such operator is determined liable for the claim, for all
benefits paid by the fund on behalf of such operator, and, in addition,
such penalties and interest as are appropriate.
Sec. 725.421 Referral of a claim to the Office of Administrative Law
Judges.
(a) In any claim for which a formal hearing is requested or
ordered, and with respect to which the district director has completed
development and adjudication without having resolved all contested
issues in the claim, the district director shall refer the claim to the
Office of Administrative Law Judges for a hearing.
(b) In any case referred to the Office of Administrative Law Judges
under this section, the district director shall transmit to that office
the following documents, which shall be placed in the record at the
hearing subject to the objection of any party:
(1) Copies of the claim form or forms;
(2) Any statement, document, or pleading submitted by a party to
the claim;
(3) A copy of the notification to an operator of its possible
liability for the claim;
(4) All evidence submitted to the district director under this
part;
(5) Any written stipulation of law or fact or stipulation of
contested and uncontested issues entered into by the parties;
(6) Any pertinent forms submitted to the district director;
(7) The statement by the district director of contested and
uncontested issues in the claim; and
(8) The district director's initial determination of eligibility or
other documents necessary to establish the right of the fund to
reimbursement, if appropriate. Copies of the transmittal notice shall
also be sent to all parties to the claim by regular mail.
(c) A party may at any time request and obtain from the district
director copies of documents transmitted to the Office of
Administrative Law Judges under paragraph (b) of this section. If the
party has previously been provided with such documents, additional
copies may be sent to the party upon the payment of a copying fee to be
determined by the district director.
Sec. 725.422 Legal assistance.
The Secretary or his or her designee may, upon request, provide a
claimant with legal assistance in processing a claim under the Act.
Such assistance may be made available to a claimant in the discretion
of the Solicitor of Labor or his or her designee at any time prior to
or during the time in which the claim is being adjudicated and shall be
furnished without charge to the claimant. Representation of a claimant
in adjudicatory proceedings shall not be provided by the Department of
Labor unless it is determined by the Solicitor of Labor that such
representation is in the best interests of the black lung benefits
program. In no event shall representation be provided to a claimant in
a claim with respect to which the claimant's interests are adverse to
those of the Secretary of Labor or the fund.
Sec. 725.423 Extensions of time.
Except for the one-year time limit set forth in
Sec. 725.411(a)(1)(i) and the 30-day time limit set forth in
Sec. 725.419, any of the time periods set forth in this subpart may be
extended, for good cause shown, by filing a request for an extension
with the district director prior to the expiration of the time period.
Subpart F--Hearings
Sec. 725.450 Right to a hearing.
Any party to a claim (see Sec. 725.360) shall have a right to a
hearing concerning any contested issue of fact or law unresolved by the
district director. There shall be no right to a hearing until the
processing and adjudication of the claim by the district director has
been completed. There shall be no right to a hearing in a claim with
respect to which a determination of the claim made by the district
director has become final and effective in accordance with this part.
Sec. 725.451 Request for hearing.
After the completion of proceedings before the district director,
or as is otherwise indicated in this part, any party may in writing
request a hearing on any contested issue of fact or law (see
Sec. 725.419). A district director may on his or her own initiative
refer a case for hearing. If a hearing is requested, or if a district
director determines that a hearing is necessary to the resolution of
any issue, the claim shall be referred to the Chief Administrative Law
Judge for a hearing under Sec. 725.421.
Sec. 725.452 Type of hearing; parties.
(a) A hearing held under this part shall be conducted by an
administrative law judge designated by the Chief Administrative Law
Judge. Except as otherwise provided by this part, all hearings shall be
conducted in accordance with the provisions of 5 U.S.C. 554 et seq.
(b) All parties to a claim shall be permitted to participate fully
at a hearing held in connection with such claim.
(c) A full evidentiary hearing need not be conducted if a party
moves for summary judgment and the administrative law judge determines
that there is no genuine issue as to any material fact and that the
moving party is entitled to the relief requested as a matter of law.
All parties shall be entitled to respond to the motion for summary
judgment prior to decision thereon.
[[Page 3406]]
(d) If the administrative law judge believes that an oral hearing
is not necessary (for any reason other than on motion for summary
judgment), the judge shall notify the parties by written order and
allow at least 30 days for the parties to respond. The administrative
law judge shall hold the oral hearing if any party makes a timely
request in response to the order.
Sec. 725.453 Notice of hearing.
All parties shall be given at least 30 days written notice of the
date and place of a hearing and the issues to be resolved at the
hearing. Such notice shall be sent to each party or representative by
certified mail.
Sec. 725.454 Time and place of hearing; transfer of cases.
(a) The Chief Administrative Law Judge shall assign a definite time
and place for a formal hearing, and shall, where possible, schedule the
hearing to be held at a place within 75 miles of the claimant's
residence unless an alternate location is requested by the claimant.
(b) If the claimant's residence is not in any State, the Chief
Administrative Law Judge may, in his or her discretion, schedule the
hearing in the country of the claimant's residence.
(c) The Chief Administrative Law Judge or the administrative law
judge assigned the case may in his or her discretion direct that a
hearing with respect to a claim shall begin at one location and then
later be reconvened at another date and place.
(d) The Chief Administrative Law Judge or administrative law judge
assigned the case may change the time and place for a hearing, either
on his or her own motion or for good cause shown by a party. The
administrative law judge may adjourn or postpone the hearing for good
cause shown, at any time prior to the mailing to the parties of the
decision in the case. Unless otherwise agreed, at least 10 days notice
shall be given to the parties of any change in the time or place of
hearing.
(e) The Chief Administrative Law Judge may for good cause shown
transfer a case from one administrative law judge to another.
Sec. 725.455 Hearing procedures; generally.
(a) General. The purpose of any hearing conducted under this
subpart shall be to resolve contested issues of fact or law. Except as
provided in Sec. 725.421(b)(8), any findings or determinations made
with respect to a claim by a district director shall not be considered
by the administrative law judge.
(b) Evidence. The administrative law judge shall at the hearing
inquire fully into all matters at issue, and shall not be bound by
common law or statutory rules of evidence, or by technical or formal
rules of procedure, except as provided by 5 U.S.C. 554 and this
subpart. The administrative law judge shall receive into evidence the
testimony of the witnesses and parties, the evidence submitted to the
Office of Administrative Law Judges by the district director under
Sec. 725.421, and such additional evidence as may be submitted in
accordance with the provisions of this subpart. The administrative law
judge may entertain the objections of any party to the evidence
submitted under this section.
(c) Procedure. The conduct of the hearing and the order in which
allegations and evidence shall be presented shall be within the
discretion of the administrative law judge and shall afford the parties
an opportunity for a fair hearing.
(d) Oral argument and written allegations. The parties, upon
request, may be allowed a reasonable time for the presentation of oral
argument at the hearing. Briefs or other written statements or
allegations as to facts or law may be filed by any party with the
permission of the administrative law judge. Copies of any brief or
other written statement shall be filed with the administrative law
judge and served on all parties by the submitting party.
Sec. 725.456 Introduction of documentary evidence.
(a) All documents transmitted to the Office of Administrative Law
Judges under Sec. 725.421 shall be placed into evidence by the
administrative law judge, subject to objection by any party.
(b) Documentary evidence which is obtained by any party either
after the district director forwards the claim to the Office of
Administrative Law Judges or in excess of the limitations contained in
Sec. 725.414 shall not be admitted into the hearing record in the
absence of extraordinary circumstances (see Sec. 725.414(d)).
(c) Subject to paragraph (b) of this section, documentary evidence
which the district director excludes from the record, and the
objections to such evidence, may be submitted by the parties to the
administrative law judge, who shall independently determine whether the
evidence shall be admitted.
(1) If the evidence is admitted, the administrative law judge may,
in his or her discretion, remand the claim to the district director for
further consideration.
(2) If the evidence is admitted, the administrative law judge shall
afford the opposing party or parties the opportunity to develop such
additional documentary evidence as is necessary to protect the right of
cross-examination.
(d) All medical records and reports submitted by any party shall be
considered by the administrative law judge in accordance with the
quality standards contained in part 718 of this subchapter.
(e) If the administrative law judge concludes that the complete
pulmonary evaluation provided pursuant to Sec. 725.406, or any part
thereof, fails to comply with the applicable quality standards, or
fails to address the relevant conditions of entitlement (see
Sec. 725.202(d)(2) (i) through (iv)) in a manner which permits
resolution of the claim, and such evaluation or part thereof was
performed by a physician or facility selected by the Office, the
administrative law judge shall, in his or her discretion, remand the
claim to the district director with instructions to develop only such
additional evidence as is required, or allow the parties a reasonable
time to obtain and submit such evidence, before the termination of the
hearing.
Sec. 725.457 Witnesses.
(a) Witnesses at the hearing shall testify under oath or
affirmation. The administrative law judge and the parties may question
witnesses with respect to any matters relevant and material to any
contested issue. Any party who intends to present the testimony of an
expert witness at a hearing shall so notify all other parties to the
claim at least 10 days before the hearing. The failure to give notice
of the appearance of an expert witness in accordance with this
paragraph, unless notice is waived by all parties, shall preclude the
presentation of testimony by such expert witness.
(b) No person shall be required to appear as a witness in any
proceeding before an administrative law judge at a place more than 100
miles from his or her place of residence, unless the lawful mileage and
witness fee for 1 day's attendance is paid in advance of the hearing
date.
(c) No person shall be permitted to testify as a witness at the
hearing unless that person:
(1) Prepared documentary evidence which was submitted to the
district director pursuant to Sec. 725.414 (a) or (b), or
(2) Was identified as a potential hearing witness while the claim
was pending before the district director in accordance with
Sec. 725.414(c), or
(3) Prepared documentary evidence which was admitted by the
[[Page 3407]]
administrative law judge pursuant to Sec. 725.456.
(d) Notwithstanding paragraph (c)(2) of this section, no physician
shall be permitted to testify as a witness at the hearing unless he has
prepared a medical report which is entered into evidence. A physician
shall be permitted to testify only with respect to the contents of the
report or reports he has prepared.
Sec. 725.458 Depositions; interrogatories.
The testimony of any witness or party may be taken by deposition or
interrogatory according to the rules of practice of the Federal
district court for the judicial district in which the case is pending
(or of the U.S. District Court for the District of Columbia if the case
is pending in the District or outside the United States), except that
at least 30 days prior notice of any deposition shall be given to all
parties unless such notice is waived. No post-hearing deposition or
interrogatory shall be permitted unless authorized by the
administrative law judge upon the motion of a party to the claim. The
testimony of any physician which is taken by deposition shall be
subject to the limitations on the scope of the testimony contained in
Sec. 725.457(d).
Sec. 725.459 Witness fees.
(a) A witness testifying at a hearing before an administrative law
judge, or whose deposition is taken, shall receive the same fees and
mileage as witnesses in courts of the United States. If the witness is
an expert, he or she shall be entitled to an expert witness fee. Except
as provided in paragraphs (b) and (c) of this section, such fees shall
be paid by the proponent of the witness.
(b) If the witness' proponent does not intend to call the witness
to appear at hearing or deposition, any other party may subpoena the
witness for cross-examination. If such witness is required to attend
the hearing, give a deposition or respond to interrogatories for cross-
examination purposes, the subpoenaing party shall pay the witness' fee.
If the witness' proponent does call the witness to testify as part of
its case, then cross-examination of that witness by any other party
will not shift liability for fees and costs from the proponent to the
other party or parties.
(c) If a claimant is determined entitled to benefits, there may be
assessed as costs against a responsible operator, if any, or the fund,
fees and mileage for necessary witnesses attending the hearing at the
request of the claimant. Both the necessity for the witness and the
reasonableness of the fees of any expert witness shall be approved by
the administrative law judge. The amounts awarded against a responsible
operator or the fund as attorney's fees, or costs, fees and mileage for
witnesses, shall not in any respect affect or diminish benefits payable
under the Act.
Sec. 725.460 Consolidated hearings.
When two or more hearings are to be held, and the same or
substantially similar evidence is relevant and material to the matters
at issue at each such hearing, the Chief Administrative Law Judge may,
upon motion by any party or on his or her own motion, order that a
consolidated hearing be conducted. Where consolidated hearings are
held, a single record of the proceedings shall be made and the evidence
introduced in one claim may be considered as introduced in the others,
and a separate or joint decision shall be made, as appropriate.
Sec. 725.461 Waiver of right to appear and present evidence.
(a) If all parties waive their right to appear before the
administrative law judge, it shall not be necessary for the
administrative law judge to give notice of, or conduct, an oral
hearing. A waiver of the right to appear shall be made in writing and
filed with the Chief Administrative Law Judge or the administrative law
judge assigned to hear the case. Such waiver may be withdrawn by a
party for good cause shown at any time prior to the mailing of the
decision in the claim. Even though all of the parties have filed a
waiver of the right to appear, the administrative law judge may,
nevertheless, after giving notice of the time and place, conduct a
hearing if he or she believes that the personal appearance and
testimony of the party or parties would assist in ascertaining the
facts in issue in the claim. Where a waiver has been filed by all
parties, and they do not appear before the administrative law judge
personally or by representative, the administrative law judge shall
make a record of the relevant documentary evidence submitted in
accordance with this part and any further written stipulations of the
parties. Such documents and stipulations shall be considered the
evidence of record in the case and the decision shall be based upon
such evidence.
(b) Except as provided in Sec. 725.456(a), the unexcused failure of
any party to attend a hearing shall constitute a waiver of such party's
right to present evidence at the hearing, and may result in a dismissal
of the claim (see Sec. 725.465).
Sec. 725.462 Withdrawal of controversion of issues set for formal
hearing; effect.
A party may, on the record, withdraw his or her controversion of
any or all issues set for hearing. If a party withdraws his or her
controversion of all issues, the administrative law judge shall remand
the case to the district director for the issuance of an appropriate
order.
Sec. 725.463 Issues to be resolved at hearing; new issues.
(a) Except as otherwise provided in this section, the hearing shall
be confined to those contested issues which have been identified by the
district director (see Sec. 725.421) or any other issue raised in
writing before the district director.
(b) An administrative law judge may consider a new issue only if
such issue was not reasonably ascertainable by the parties at the time
the claim was before the district director. Such new issue may be
raised upon application of any party, or upon an administrative law
judge's own motion, with notice to all parties, at any time after a
claim has been transmitted by the district director to the Office of
Administrative Law Judges and prior to decision by an administrative
law judge. If a new issue is raised, the administrative law judge may,
in his or her discretion, either remand the case to the district
director with instructions for further proceedings, hear and resolve
the new issue, or refuse to consider such new issue.
(c) If a new issue is to be considered by the administrative law
judge, a party may, upon request, be granted an appropriate
continuance.
Sec. 725.464 Record of hearing.
All hearings shall be open to the public and shall be mechanically
or stenographically reported. All evidence upon which the
administrative law judge relies for decision shall be contained in the
transcript of testimony, either directly or by appropriate reference.
All medical reports, exhibits, and any other pertinent document or
record, either in whole or in material part, introduced as evidence,
shall be marked for identification and incorporated into the record.
Sec. 725.465 Dismissals for cause.
(a) The administrative law judge may, at the request of any party,
or on his or her own motion, dismiss a claim:
(1) Upon the failure of the claimant or his or her representative
to attend a hearing without good cause;
(2) Upon the failure of the claimant to comply with a lawful order
of the administrative law judge; or
[[Page 3408]]
(3) Where there has been a prior final adjudication of the claim or
defense to the claim under the provisions of this subchapter and no new
evidence is submitted (except as provided in part 727 of this
subchapter; see Sec. 725.4(d)).
(b) A party who is not a proper party to the claim (see
Sec. 725.360) shall be dismissed by the administrative law judge.
(c) In any case where a dismissal of a claim, defense, or party is
sought, the administrative law judge shall issue an order to show cause
why the dismissal should not be granted and afford all parties a
reasonable time to respond to such order. After the time for response
has expired, the administrative law judge shall take such action as is
appropriate to rule on the dismissal, which may include an order
dismissing the claim, defense or party.
(d) No claim shall be dismissed in a case with respect to which
payments prior to final adjudication have been made to the claimant in
accordance with Sec. 725.522, except upon the motion or written
agreement of the Director.
Sec. 725.466 Order of dismissal.
(a) An order dismissing a claim shall be served on the parties in
accordance with Sec. 725.478. The dismissal of a claim shall have the
same effect as a decision and order disposing of the claim on its
merits, except as provided in paragraph (b) of this section. Such order
shall advise the parties of their right to request review by the
Benefits Review Board.
(b) Where the Chief Administrative Law Judge or the presiding
administrative law judge issues a decision and order dismissing the
claim after a show cause proceeding, the district director shall
terminate any payments being made to the claimant under Sec. 725.522,
and the order of dismissal shall, if appropriate, order the claimant to
reimburse the fund for all benefits paid to the claimant.
Sec. 725.475 Termination of hearings.
Hearings are officially terminated when all the evidence has been
received, witnesses heard, pleadings and briefs submitted to the
administrative law judge, and the transcript of the proceedings has
been printed and delivered to the administrative law judge.
Sec. 725.476 Issuance of decision and order.
Within 20 days after the official termination of the hearing (see
Sec. 725.475), the administrative law judge shall issue a decision and
order with respect to the claim making an award to the claimant,
rejecting the claim, or taking such other action as is appropriate.
Sec. 725.477 Form and contents of decision and order.
(a) Orders adjudicating claims for benefits shall be designated by
the term ``decision and order'' or ``supplemental decision and order''
as appropriate, followed by a descriptive phrase designating the
particular type of order, such as ``award of benefits,'' ``rejection of
claim,'' ``suspension of benefits,'' ``modification of award.''
(b) A decision and order shall contain a statement of the basis of
the order, the names of the parties, findings of fact, conclusions of
law, and an award, rejection or other appropriate paragraph containing
the action of the administrative law judge, his or her signature and
the date of issuance. A decision and order shall be based upon the
record made before the administrative law judge.
Sec. 725.478 Filing and service of decision and order.
On the date of issuance of a decision and order under Sec. 725.477,
the administrative law judge shall serve the decision and order on all
parties to the claim by certified mail. On the same date, the original
record of the claim shall be sent to the DCMWC in Washington, D.C. Upon
receipt by the DCMWC, the decision and order shall be considered to be
filed in the office of the district director, and shall become
effective on that date.
Sec. 725.479 Finality of decisions and orders.
(a) A decision and order shall become effective when filed in the
office of the district director (see Sec. 725.478), and unless
proceedings for suspension or setting aside of such order are
instituted within 30 days of such filing, the order shall become final
at the expiration of the 30th day after such filing (see Sec. 725.481).
(b) Any party may, within 30 days after the filing of a decision
and order under Sec. 725.478, request a reconsideration of such
decision and order by the administrative law judge. The procedures to
be followed in the reconsideration of a decision and order shall be
determined by the administrative law judge.
(c) The time for appeal to the Benefits Review Board shall be
suspended during the consideration of a request for reconsideration.
After the administrative law judge has issued and filed a denial of the
request for reconsideration, or a revised decision and order in
accordance with this part, any dissatisfied party shall have 30 days
within which to institute proceedings to set aside the decision and
order on reconsideration.
(d) Regardless of any defect in service, actual receipt of the
decision is sufficient to commence the 30-day period for requesting
reconsideration or appealing the decision.
Sec. 725.480 Modification of decisions and orders.
A party who is dissatisfied with a decision and order which has
become final in accordance with Sec. 725.479 may request a modification
of the decision and order if the conditions set forth in Sec. 725.310
are met.
Sec. 725.481 Right to appeal to the Benefits Review Board.
Any party dissatisfied with a decision and order issued by an
administrative law judge may, before the decision and order becomes
final (see Sec. 725.479), appeal the decision and order to the Benefits
Review Board. A notice of appeal shall be filed with the Board.
Proceedings before the Board shall be conducted in accordance with part
802 of this title.
Sec. 725.482 Judicial review.
(a) Any person adversely affected or aggrieved by a final order of
the Benefits Review Board may obtain a review of that order in the U.S.
court of appeals for the circuit in which the injury occurred by filing
in such court within 60 days following the issuance of such Board order
a written petition praying that the order be modified or set aside. The
payment of the amounts required by an award shall not be stayed pending
final decision in any such proceeding unless ordered by the court. No
stay shall be issued unless the court finds that irreparable injury
would otherwise ensue to an operator or carrier.
(b) The Director, Office of Workers' Compensation Program, as
designee of the Secretary of Labor responsible for the administration
and enforcement of the Act, shall be considered the proper party to
appear and present argument on behalf of the Secretary of Labor in all
review proceedings conducted pursuant to this part and the Act, either
as petitioner or respondent.
Sec. 725.483 Costs in proceedings brought without reasonable grounds.
If a United States court having jurisdiction of proceedings
regarding any claim or final decision and order, determines that the
proceedings have been instituted or continued before such court without
reasonable ground, the costs of such proceedings shall be assessed
against the party who has so
[[Page 3409]]
instituted or continued such proceedings.
Subpart G--Responsible Coal Mine Operators
General Provisions
Sec. 725.490 Statutory provisions and scope.
(a) One of the major purposes of the black lung benefits amendments
of 1977 was to provide a more effective means of transferring the
responsibility for the payment of benefits from the Federal government
to the coal industry with respect to claims filed under this part. In
furtherance of this goal, a Black Lung Disability Trust Fund financed
by the coal industry was established by the Black Lung Benefits Revenue
Act of 1977. The primary purpose of the Fund is to pay benefits with
respect to all claims in which the last coal mine employment of the
miner on whose account the claim was filed occurred before January 1,
1970. With respect to most claims in which the miner's last coal mine
employment occurred after January 1, 1970, individual coal mine
operators will be liable for the payment of benefits. The 1981
amendments to the Act relieved individual coal mine operators from the
liability for payment of certain special claims involving coal mine
employment on or after January 1, 1970, where the claim was previously
denied and subsequently approved under section 435 of the Act. See
Sec. 725.496 for a detailed description of these special claims. Where
no such operator exists or the operator determined to be liable is in
default in any case, the fund shall pay the benefits due and seek
reimbursement as is appropriate. See also Sec. 725.420 for the fund's
role in the payment of interim benefits in certain contested cases. In
addition, the Black Lung Benefits Reform Act of 1977 amended certain
provisions affecting the scope of coverage under the Act and describing
the effects of particular corporate transactions on the liability of
operators.
(b) The provisions of this subpart define the term ``operator'' and
prescribe the manner in which the identity of an operator which may be
liable for the payment of benefits--referred to herein as a
``responsible operator''--will be determined.
Sec. 725.491 Operator defined.
(a) For purposes of this part, the term ``operator'' shall include:
(1) Any owner, lessee, or other person who operates, controls, or
supervises a coal mine, or any independent contractor performing
services or construction at such mine; or
(2) Any other person who:
(i) Employs an individual in the transportation of coal or in coal
mine construction in or around a coal mine, to the extent such
individual was exposed to coal dust as a result of such employment (see
Sec. 725.202);
(ii) In accordance with the provisions of Sec. 725.492, may be
considered a successor operator; or
(iii) Paid wages or a salary, or provided other benefits, to an
individual in exchange for work as a miner (see Sec. 725.202).
(b) The terms ``owner,'' ``lessee,'' and ``person'' shall include
any individual, partnership, association, corporation, firm, subsidiary
of a corporation, or other organization, as appropriate, except that an
officer of a corporation shall not be considered an ``operator'' for
purposes of this part. Following the issuance of an order awarding
benefits against a corporation that has not secured its liability for
benefits in accordance with section 423 of the Act and Sec. 726.4, such
order may be enforced against the president, secretary, or treasurer of
the corporation in accordance with subpart I of this part.
(c) The term ``independent contractor'' shall include any person
who contracts to perform services. Such contractor's status as an
operator shall not be contingent upon the amount or percentage of its
work or business related to activities in or around a mine, nor upon
the number or percentage of its employees engaged in such activities.
(d) For the purposes of determining whether a person is or was an
operator that may be found liable for the payment of benefits under
this part, there shall be a rebuttable presumption that during the
course of an individual's employment with such employer, such
individual was regularly and continuously exposed to coal dust during
the course of employment. The presumption may be rebutted by a showing
that the employee was not exposed to coal dust for significant periods
during such employment.
(e) The operation, control, or supervision referred to in paragraph
(a)(1) of this section may be exercised directly or indirectly. Thus,
for example, where a coal mine is leased, and the lease empowers the
lessor to make decisions with respect to the terms and conditions under
which coal is to be extracted or prepared, such as, but not limited to,
the manner of extraction or preparation or the amount of coal to be
produced, the lessor may be considered an operator. Similarly, any
parent entity or other controlling business entity may be considered an
operator for purposes of this part, regardless of the nature of its
business activities.
(f) Neither the United States, nor any State, nor any
instrumentality or agency of the United States or any State, shall be
considered an operator.
Sec. 725.492 Successor operator defined.
(a) Any person who, on or after January 1, 1970, acquired a mine or
mines, or substantially all of the assets thereof, from a prior
operator, or acquired the coal mining business of such prior operator,
or substantially all of the assets thereof, shall be considered a
``successor operator'' with respect to any miners previously employed
by such prior operator.
(b) The following transactions shall also be deemed to create
successor operator liability:
(1) If an operator ceases to exist by reason of a reorganization
which involves a change in identity, form, or place of business or
organization, however effected;
(2) If an operator ceases to exist by reason of a liquidation into
a parent or successor corporation; or
(3) If an operator ceases to exist by reason of a sale of
substantially all its assets, or as a result of merger, consolidation,
or division.
(c) In any case in which a transaction specified in paragraph (b),
or substantially similar to a transaction specified in paragraph (b)
took place, the resulting entity shall be considered a ``successor
operator'' with respect to any miners previously employed by such prior
operator.
(d) This section shall not be construed to relieve a prior operator
of any liability if such prior operator meets the conditions set forth
in Sec. 725.494. If the prior operator does not meet the conditions set
forth in Sec. 725.494, the following provisions shall apply:
(1) In any case in which a prior operator transferred a mine or
mines, or substantially all of the assets thereof, to a successor
operator, or sold its coal mining business or substantially all of the
assets thereof, to a successor operator, and then ceased to exist,
within the terms of paragraph (b), the successor operator as identified
in paragraph (a) shall be primarily liable for the payment of benefits
to any miners previously employed by such prior operator.
(2) In any case in which a prior operator transferred mines, or
substantially all of the assets thereof, to more than one successor
operator, the successor operator that most recently acquired a mine or
mines or assets from the prior operator shall be primarily liable for
the payment of benefits to any
[[Page 3410]]
miners previously employed by such prior operator.
(3) In any case in which a mine or mines, or substantially all the
assets thereof, have been transferred more than once, the successor
operator that most recently acquired such mine or mines or assets shall
be primarily liable for the payment of benefits to any miners
previously employed by the original prior operator. If the most recent
successor operator does not meet the criteria for a potentially liable
operator set forth in Sec. 725.494, the next most recent successor
operator shall be liable.
(e) An ``acquisition,'' for purposes of this section, shall include
any transaction by which title to the mine or mines, or substantially
all of the assets thereof, or the right to extract or prepare coal at
such mine or mines, becomes vested in a person other than the prior
operator.
Sec. 725.493 Employment relationship defined.
(a)(1) In determining the identity of a responsible operator under
this part, the terms ``employ'' and ``employment'' shall be construed
as broadly as possible, and shall include any relationship under which
an operator retains the right to direct, control, or supervise the work
performed by a miner, or any other relationship under which an operator
derives a benefit from the work performed by a miner. Any individuals
who participate with one or more persons in the mining of coal, such as
owners, proprietors, partners, and joint venturers, whether they are
compensated by wages, salaries, piece rates, shares, profits, or by any
other means, shall be deemed employees.
(2) The payment of wages or salary shall be prima facie evidence of
the right to direct, control, or supervise an individual's work, and
the Department intends that where the operator who paid a miner's wages
or salary meets the criteria for a potentially liable operator set
forth in Sec. 725.494, that operator shall be primarily liable for the
payment of any benefits due the miner as a result of such employment.
The absence of such payment, however, will not negate the existence of
an employment relationship. Thus, the Department also intends that
where the person who paid a miner's wages may not be considered a
potentially liable operator, any other operator who retained the right
to direct, control or supervise the work performed by the miner, or who
benefitted from such work, may be considered a potentially liable
operator.
(b) This paragraph contains examples of relationships that shall be
considered employment relationships for purposes of this part. The list
is not intended to be exclusive.
(1) In any case in which an operator may be considered a successor
operator, as determined in accordance with Sec. 725.492, any employment
with a prior operator shall also be deemed to be employment with the
successor operator. In a case in which the miner was not independently
employed by the successor operator, the prior operator shall remain
primarily liable for the payment of any benefits based on the miner's
employment with the prior operator. In a case in which the miner was
independently employed by the successor operator after the transaction
giving rise to successor operator liability, the successor operator
shall be primarily liable for the payment of any benefits.
(2) In any case in which the operator which directed, controlled or
supervised the miner is no longer in business and such operator was a
subsidiary of a parent company, a member of a joint venture, a partner
in a partnership, or was substantially owned or controlled by another
business entity, such parent entity or other member of a joint venture
or partner or controlling business entity may be considered the
employer of any employees of such operator.
(3) In any claim in which the operator which directed, controlled
or supervised the miner is a lessee, the lessee shall be considered
primarily liable for the claim. The liability of the lessor may be
established only after it has been determined that the lessee is unable
to provide for the payment of benefits to a successful claimant. In any
case involving the liability of a lessor for a claim arising out of
employment with a lessee, any determination of lessor liability shall
be made on the basis of the facts present in the case in accordance
with the following considerations:
(i) Where a coal mine is leased, and the lease empowers the lessor
to make decisions with respect to the terms and conditions under which
coal is to be extracted or prepared, such as, but not limited to, the
manner of extraction or preparation or the amount of coal to be
produced, the lessor shall be considered the employer of any employees
of the lessee.
(ii) Where a coal mine is leased to a self-employed operator, the
lessor shall be considered the employer of such self-employed operator
and its employees if the lease or agreement is executed or renewed
after August 18, 1978 and such lease or agreement does not require the
lessee to guarantee the payment of benefits which may be required under
this part and part 726 of this subchapter.
(iii) Where a lessor previously operated a coal mine, it may be
considered an operator with respect to employees of any lessee of such
mine, particularly where the leasing arrangement was executed or
renewed after August 18, 1978 and does not require the lessee to secure
benefits provided by the Act.
(4) A self-employed operator, depending upon the facts of the case,
may be considered an employee of any other operator, person, or
business entity which substantially controls, supervises, or is
financially responsible for the activities of the self-employed
operator.
Sec. 725.494 Potentially liable operators.
An operator may be considered a ``potentially liable operator''
with respect to a claim for benefits under this part if each of the
following conditions is met:
(a) The miner's disability or death shall have arisen at least in
part out of employment in or around a mine or other facility during a
period when the mine or facility was operated by such operator, or by a
person with respect to which the operator may be considered a successor
operator. For purposes of this section, there shall be a rebuttable
presumption that the miner's disability or death arose in whole or in
part out of his or her employment with such operator. Unless this
presumption is rebutted, the responsible operator shall be liable to
pay benefits to the claimant on account of the disability or death of
the miner in accordance with this part. A miner's pneumoconiosis, or
disability or death therefrom, shall be considered to have arisen in
whole or in part out of work in or around a mine if such work caused,
contributed to or aggravated the progression or advancement of a
miner's loss of ability to perform his or her regular coal mine
employment or comparable employment.
(b) The operator, or any person with respect to which the operator
may be considered a successor operator, shall have been an operator for
any period after June 30, 1973.
(c) The miner shall have been employed by the operator, or any
person with respect to which the operator may be considered a successor
operator, for a cumulative period of not less than one year
(Sec. 725.101(a)(32)).
(d) The miner's employment with the operator, or any person with
respect to which the operator may be considered a successor operator,
shall have included at least one working day
[[Page 3411]]
(Sec. 725.101(a)(32)) after December 31, 1969.
(e) The operator shall be capable of assuming its liability for the
payment of continuing benefits under this part. An operator will be
deemed capable of assuming its liability for a claim if one of the
following three conditions is met:
(1) The operator obtained a policy or contract of insurance under
section 423 of the Act and part 726 of this subchapter that covers the
claim, except that such policy shall not be considered sufficient to
establish the operator's capability of assuming liability if the
insurance company has been declared insolvent and its obligations for
the claim are not otherwise guaranteed;
(2) The operator qualified as a self-insurer under section 423 of
the Act and part 726 of this subchapter during the period in which the
miner was last employed by the operator, provided that the operator
still qualifies as a self-insurer or the security given by the operator
pursuant to Sec. 726.104(b) is sufficient to secure the payment of
benefits in the event the claim is awarded; or
(3) The operator possesses sufficient assets to secure the payment
of benefits in the event the claim is awarded in accordance with
Sec. 725.606 of this part.
Sec. 725.495 Criteria for determining a responsible operator.
(a)(1) The operator responsible for the payment of benefits in a
claim adjudicated under this part (the ``responsible operator'') shall
be the potentially liable operator, as determined in accordance with
Sec. 725.494, that most recently employed the miner.
(2) If more than one potentially liable operator may be deemed to
have employed the miner most recently, then the liability for any
benefits payable as a result of such employment shall be assigned as
follows:
(i) First, to the potentially liable operator that directed,
controlled, or supervised the miner;
(ii) Second, to any potentially liable operator that may be
considered a successor operator with respect to miners employed by the
operator identified in paragraph (a)(2)(i); and
(iii) Third, to any other potentially liable operator which may be
deemed to have been the miner's most recent employer pursuant to
Sec. 725.493 of this part.
(3) If the operator that most recently employed the miner may not
be considered a potentially liable operator, as determined in
accordance with Sec. 725.494, the responsible operator shall be the
potentially liable operator that next most recently employed the miner.
Any potentially liable operator that employed the miner for at least
one day after December 31, 1969 may be deemed the responsible operator
if no more recent employer may be considered a potentially liable
operator.
(b) Except as provided in this section and Sec. 725.408(a)(3) of
this part, with respect to the adjudication of the identity of a
responsible operator, the Director shall bear the burden of proving
that the responsible operator initially found liable for the payment of
benefits pursuant to Sec. 725.410 of this part (the ``designated
responsible operator'') is a potentially liable operator. It shall be
presumed, in the absence of evidence to the contrary, that the
designated responsible operator is capable of assuming liability for
the payment of benefits in accordance with Sec. 725.494(e) of this
part.
(c) The designated responsible operator shall bear the burden of
proving either:
(1) that it does not possess sufficient assets to secure the
payment of benefits in accordance with Sec. 725.606 of this part; or
(2) that it is not the potentially liable operator that most
recently employed the miner. Such proof must include evidence that the
miner was employed as a miner after he or she stopped working for the
designated responsible operator and that the person by whom he or she
was employed is a potentially liable operator within the meaning of
Sec. 725.494. In order to establish that a more recent employer is a
potentially liable operator, the designated responsible operator must
demonstrate that the more recent employer possesses sufficient assets
to secure the payment of benefits in accordance with Sec. 725.606 of
this part. The designated responsible operator may satisfy its burden
by presenting evidence that the owner, if the more recent employer is a
sole proprietorship; the partners, if the more recent employer is a
partnership; or the president, secretary, and treasurer, if the more
recent employer is a corporation that failed to secure the payment of
benefits pursuant to part 726 of this subchapter, possess assets
sufficient to secure the payment of benefits, provided such assets may
be reached in a proceeding brought under subpart I of this part.
(d) In any case referred to the Office of Administrative Law Judges
pursuant to Sec. 725.421 in which the responsible operator initially
found liable for the payment of benefits pursuant to Sec. 725.410 is
not the operator that most recently employed the miner, the record
shall contain a statement from the district director explaining the
reasons for such initial finding. If the reasons include the most
recent employer's failure to meet the conditions of Sec. 725.494(e),
the record shall also contain a statement that the Office has searched
the files it maintains pursuant to part 726, and that the Office has no
record of insurance coverage for that employer, or of authorization to
self-insure, that meets the conditions of Sec. 725.494(e)(1) or (e)(2).
Such a statement shall be prima facie evidence that the most recent
employer is not financially capable of assuming its liability for a
claim. In the absence of such a statement, it shall be presumed that
the most recent employer is financially capable of assuming its
liability for a claim.
Sec. 725.496 Special claims transferred to the fund.
(a) The 1981 amendments to the Act amended section 422 of the Act
and transferred liability for payment of certain special claims from
operators and carriers to the fund. These provisions apply to claims
which were denied before March 1, 1978, and which have been or will be
approved in accordance with section 435 of the Act.
(b) Section 402(i) of the Act defines three classes of denied
claims subject to the transfer provisions:
(1) Claims filed with and denied by the Social Security
Administration before March 1, 1978;
(2) Claims filed with the Department of Labor in which the claimant
was notified by the Department of an administrative or informal denial
before March 1, 1977, and in which the claimant did not within one year
of such notification either:
(i) Request a hearing; or
(ii) Present additional evidence; or
(iii) Indicate an intention to present additional evidence; or
(iv) Request a modification or reconsideration of the denial on the
ground of a change in conditions or because of a mistake in a
determination of fact.
(3) Claims filed with the Department of Labor and denied under the
law in effect prior to the enactment of the Black Lung Benefits Reform
Act of 1977, that is, before March 1, 1978, following a formal hearing
before an administrative law judge or administrative review before the
Benefits Review Board or review before a United States Court of
Appeals.
(c) Where more than one claim was filed with the Social Security
Administration and/or the Department of Labor prior to March 1, 1978,
by or on behalf of a miner or a surviving
[[Page 3412]]
dependent of a miner, unless such claims were required to be merged by
the agency's regulations, the procedural history of each such claim
must be considered separately to determine whether the claim is subject
to the transfer of liability provisions.
(d) For a claim filed with and denied by the Social Security
Administration prior to March 1, 1978, to come within the transfer
provisions, such claim must have been or must be approved under the
provisions of section 435 of the Act. No claim filed with and denied by
the Social Security Administration is subject to the transfer of
liability provisions unless a request was made by or on behalf of the
claimant for review of such denied claim under section 435. Such review
must have been requested by the filing of a valid election card or
other equivalent document with the Social Security Administration in
accordance with section 435(a) and its implementing regulations at 20
CFR 410.700 through 410.707.
(e) Where a claim filed with the Department of Labor prior to March
1, 1977, was subjected to repeated administrative or informal denials,
the last such denial issued during the pendency of the claim determines
whether the claim is subject to the transfer of liability provisions.
(f) Where a miner's claim comes within the transfer of liability
provisions of the 1981 amendments the fund is also liable for the
payment of any benefits to which the miner's dependent survivors are
entitled after the miner's death. However, if the survivor's
entitlement was established on a separate claim not subject to the
transfer of liability provisions prior to approval of the miner's claim
under section 435, the party responsible for the payment of such
survivors' benefits shall not be relieved of that responsibility
because the miner's claim was ultimately approved and found subject to
the transfer of liability provisions.
Sec. 725.497 Procedures in special claims transferred to the fund.
(a) General. It is the purpose of this section to define procedures
to expedite the handling and disposition of claims affected by the
benefit liability transfer provisions of Section 205 of the Black Lung
Benefits Amendments of 1981.
(b) Action by the Department. The OWCP shall, in accordance with
the criteria contained in Sec. 725.496, review each claim which is or
may be affected by the provisions of Section 205 of the Black Lung
Benefits Amendments of 1981. Any party to a claim, adjudication
officer, or adjudicative body may request that such a review be
conducted and that the record be supplemented with any additional
documentation necessary for an informed consideration of the
transferability of the claim. Where the issue of the transferability of
the claim can not be resolved by agreement of the parties and the
evidence of record is not sufficient for a resolution of the issue, the
hearing record may be reopened or the case remanded for the development
of the additional evidence concerning the procedural history of the
claim necessary to such resolution. Such determinations shall be made
on an expedited basis.
(c) Dismissal of operators. If it is determined that a coal mine
operator or insurance carrier which previously participated in the
consideration or adjudication of any claim, may no longer be found
liable for the payment of benefits to the claimant by reason of section
205 of the Black Lung Benefits Amendments of 1981, such operator or
carrier shall be promptly dismissed as a party to the claim. The
dismissal of an operator or carrier shall be concluded at the earliest
possible time and in no event shall an operator or carrier participate
as a necessary party in any claim for which only the fund may be
liable.
(d) Procedure following dismissal of an operator. After it has been
determined that an operator or carrier must be dismissed as a party in
any claim in accordance with this section, the Director shall take such
action as is authorized by the Act to bring about the proper and
expeditious resolution of the claim in light of all relevant medical
and other evidence. Action to be taken in this regard by the Director
may include, but is not limited to, the assignment of the claim to the
Black Lung Disability Trust Fund for the payment of benefits, the
reimbursement of benefits previously paid by an operator or carrier if
appropriate, the defense of the claim on behalf of the fund, or
proceedings authorized by Sec. 725.310.
(e) Any claimant whose claim has been subsequently denied in a
modification proceeding will be entitled to expedited review of the
modification decision. Where a formal hearing was previously held, the
claimant may waive his right to a further hearing and ask that a
decision be made on the record of the prior hearing, as supplemented by
any additional documentary evidence which the parties wish to introduce
and briefs of the parties, if desired. In any case in which the
claimant waives his right to a second hearing, a decision and order
must be issued within 30 days of the date upon which the parties agree
the record has been completed.
Subpart H--Payment of Benefits
General Provisions
Sec. 725.501 Payment provisions generally.
The provisions of this subpart govern the payment of benefits to
claimants whose claims are approved for payment under section 415 and
part C of title IV of the Act or approved after review under section
435 of the Act and part 727 of this subchapter (see Sec. 725.4(d)).
Sec. 725.502 When benefit payments are due; manner of payment.
(a)(1) Except with respect to benefits paid by the fund pursuant to
an initial determination issued in accordance with Sec. 725.418 (see
Sec. 725.522), benefits under the Act shall be paid when they become
due. Benefits shall be considered due after the issuance of an
effective order requiring the payment of benefits by a district
director, administrative law judge, Benefits Review Board, or court,
notwithstanding the pendency of a motion for reconsideration before an
administrative law judge or an appeal to the Board or court, except
that benefits shall not be considered due where the payment of such
benefits has been stayed by the Benefits Review Board or appropriate
court. An effective order shall remain in effect unless it is vacated
by an administrative law judge on reconsideration, or, upon review
under section 21 of the LHWCA, by the Benefits Review Board or an
appropriate court, or is superseded by an effective order issued
pursuant to Sec. 725.310.
(2) A proposed order issued by a district director pursuant to
Sec. 725.418 becomes effective at the expiration of the thirtieth day
thereafter if no party timely requests revision of the proposed
decision and order or a hearing (see Sec. 725.419). An order issued by
an administrative law judge becomes effective when it is filed in the
office of the district director (see Sec. 725.479). An order issued by
the Benefits Review Board shall become effective when it is issued. An
order issued by a court shall become effective in accordance with the
rules of the court.
(b)(1) While an effective order requiring the payment of benefits
remains in effect, monthly benefits, at the rates set forth in
Sec. 725.520, shall be due on the first business day of the month
following the month for which the benefits are payable. For example,
benefits payable for the month of January shall be due on the first
business day in February.
[[Page 3413]]
(2) Within 30 days after the issuance of an effective order
requiring the payment of benefits, the district director shall compute
the amount of benefits payable for periods prior to the effective date
of the order, in addition to any interest payable for such periods (see
Sec. 725.608), and shall so notify the parties. Any computation made by
the district director under this paragraph shall strictly observe the
terms of the order. Benefits and interest payable for such periods
shall be due on the thirtieth day following issuance of the district
director's computation. A copy of the current table of applicable
interest rates shall be attached.
(c) Benefits are payable for monthly periods and shall be paid
directly to an eligible claimant or his or her representative payee
(see Sec. 725.510) beginning with the month during which eligibility
begins. Benefit payments shall terminate with the month before the
month during which eligibility terminates. If a claimant dies in the
first month during which all requirements for eligibility are met,
benefits shall be paid for that month.
Sec. 725.503 Date from which benefits are payable.
(a) In accordance with the provisions of section 6(a) of the
Longshore Act as incorporated by section 422(a) of the Act, and except
as provided in Sec. 725.504, the provisions of this section shall be
applicable in determining the date from which benefits are payable to
an eligible claimant for any claim filed after March 31, 1980. Except
as provided in paragraph (d), the date from which benefits are payable
for any claim approved under part 727 shall be determined in accordance
with Sec. 727.302 (see Sec. 725.4(d)).
(b) Miner's claim. In the case of a miner who is entitled to
benefits, benefits are payable to such miner beginning with the month
of onset of total disability due to pneumoconiosis arising out of coal
mine employment. Where the evidence does not establish the month of
onset, benefits shall be payable to such miner beginning with the month
during which the claim was filed. In the case of a miner who filed a
claim before January 1, 1982, benefits shall be payable to the miner's
eligible survivor (if any) beginning with the month in which the miner
died.
(c) Survivor's claim. In the case of an eligible survivor, benefits
shall be payable beginning with the month of the miner's death, or
January 1, 1974, whichever is later.
(d) If a claim is awarded pursuant to section 22 of the Longshore
Act and Sec. 725.310, then the date from which benefits are payable
shall be determined as follows:
(1) Mistake in fact. The provisions of paragraphs (b) or (c) of
this section, as applicable, shall govern the determination of the date
from which benefits are payable.
(2) Change in conditions. Benefits are payable to a miner beginning
with the month of onset of total disability due to pneumoconiosis
arising out of coal mine employment, provided that no benefits shall be
payable for any month prior to the effective date of the most recent
denial of the claim by a district director or administrative law judge.
Where the evidence does not establish the month of onset, benefits
shall be payable to such miner from the month of the earliest evidence
the adjudication officer finds supportive of a condition of entitlement
(see Sec. 725.202(d)) not previously resolved in favor of the claimant
in the denial of benefits the claimant seeks to modify, provided that
such evidence was developed after the date upon which the most recent
denial by a district director or administrative law judge became
effective.
(e) In the case of a claim filed between July 1, 1973, and December
31, 1973, benefits shall be payable as provided by this section, except
to the extent prohibited by Sec. 727.303 (see Sec. 725.4(d)).
(f) No benefits shall be payable with respect to a claim filed
after December 31, 1973 (a part C claim), for any period of eligibility
occurring before January 1, 1974.
(g) Each decision and order awarding benefits shall indicate the
month from which benefits are payable to the eligible claimant.
Sec. 725.504 Payments to a claimant employed as a miner.
(a) In the case of a claimant who is employed as a miner (see
Sec. 725.202) at the time of a final determination of such miner's
eligibility for benefits, no benefits shall be payable unless:
(1) The miner's eligibility is established under section 411(c)(3)
of the Act; or
(2) The miner terminates his or her coal mine employment within 1
year from the date of the final determination of the claim.
(b) If the eligibility of a working miner is established under
section 411(c)(3) of the Act, benefits shall be payable as is otherwise
provided in this part. If eligibility cannot be established under
section 411(c)(3), and the miner continues to be employed as a miner in
any capacity for a period of less than 1 year after a final
determination of the claim, benefits shall be payable beginning with
the month during which the miner ends his or her coal mine employment.
If the miner's employment continues for more than 1 year after a final
determination of eligibility, such determination shall be considered a
denial of benefits on the basis of the miner's continued employment,
and the miner may seek benefits only as provided in Sec. 725.310, if
applicable, or by filing a new claim under this part. The provisions of
Subparts E and F of this part shall be applicable to claims considered
under this section as is appropriate.
(c) In any case where the miner returns to coal mine or comparable
and gainful work, the payments to such miner shall be suspended and no
benefits shall be payable (except as provided in section 411(c)(3) of
the Act) for the period during which the miner continues to work. If
the miner again terminates employment, the district director may
require the miner to submit to further medical examination before
authorizing the payment of benefits.
Sec. 725.505 Payees.
Benefits may be paid, as appropriate, to a beneficiary, to a
qualified dependent, or to a representative authorized under this
subpart to receive payments on behalf of such beneficiary or dependent.
Sec. 725.506 Payment on behalf of another; ``legal guardian'' defined.
Benefits are paid only to the beneficiary, his or her
representative payee (see Sec. 725.510) or his or her legal guardian.
As used in this section, ``legal guardian'' means an individual who has
been appointed by a court of competent jurisdiction or otherwise
appointed pursuant to law to assume control of and responsibility for
the care of the beneficiary, the management of his or her estate, or
both.
Sec. 725.507 Guardian for minor or incompetent.
An adjudication officer may require that a legal guardian or
representative be appointed to receive benefit payments payable to any
person who is mentally incompetent or a minor and to exercise the
powers granted to, or to perform the duties otherwise required of such
person under the Act.
Sec. 725.510 Representative payee.
(a) If the district director determines that the best interests of
a beneficiary are served thereby, the district director may certify the
payment of such beneficiary's benefits to a representative payee.
(b) Before any amount shall be certified for payment to any
[[Page 3414]]
representative payee for or on behalf of a beneficiary, such
representative payee shall submit to the district director such
evidence as may be required of his or her relationship to, or his or
her responsibility for the care of, the beneficiary on whose behalf
payment is to be made, or of his or her authority to receive such a
payment. The district director may, at any time thereafter, require
evidence of the continued existence of such relationship,
responsibility, or authority. If a person requesting representative
payee status fails to submit the required evidence within a reasonable
period of time after it is requested, no further payments shall be
certified to him or her on behalf of the beneficiary unless the
required evidence is thereafter submitted.
(c) All benefit payments made to a representative payee shall be
available only for the use and benefit of the beneficiary, as defined
in Sec. 725.511.
Sec. 725.511 Use and benefit defined.
(a) Payments certified to a representative payee shall be
considered as having been applied for the use and benefit of the
beneficiary when they are used for the beneficiary's current
maintenance--i.e., to replace current income lost because of the
disability of the beneficiary. Where a beneficiary is receiving care in
an institution, current maintenance shall include the customary charges
made by the institution and charges made for the current and
foreseeable needs of the beneficiary which are not met by the
institution.
(b) Payments certified to a representative payee which are not
needed for the current maintenance of the beneficiary, except as they
may be used under Sec. 725.512, shall be conserved or invested on the
beneficiary's behalf. Preferred investments are U.S. savings bonds
which shall be purchased in accordance with applicable regulations of
the U.S. Treasury Department (31 CFR part 315). Surplus funds may also
be invested in accordance with the rules applicable to investment of
trust estates by trustees. For example, surplus funds may be deposited
in an interest or dividend bearing account in a bank or trust company
or in a savings and loan association if the account is either federally
insured or is otherwise insured in accordance with State law
requirements. Surplus funds deposited in an interest or dividend
bearing account in a bank or trust company or in a savings and loan
association must be in a form of account which clearly shows that the
representative payee has only a fiduciary, and not a personal, interest
in the funds. The preferred forms of such accounts are as follows:
Name of beneficiary----------------------------------------------------
by (Name of representative payee) representative payee,
or (Name of beneficiary)
by (Name of representative payee) trustee,
U.S. savings bonds purchased with surplus funds by a
representative payee for an incapacitated adult beneficiary should
be registered as follows: (Name of beneficiary) (Social Security
No.), for whom (Name of payee) is representative payee for black
lung benefits.
Sec. 725.512 Support of legally dependent spouse, child, or parent.
If current maintenance needs of a beneficiary are being reasonably
met, a relative or other person to whom payments are certified as
representative payee on behalf of the beneficiary may use part of the
payments so certified for the support of the legally dependent spouse,
a legally dependent child, or a legally dependent parent of the
beneficiary.
Sec. 725.513 Accountability; transfer.
(a) The district director may require a representative payee to
submit periodic reports including a full accounting of the use of all
benefit payments certified to a representative payee. If a requested
report or accounting is not submitted within the time allowed, the
district director shall terminate the certification of the
representative payee and thereafter payments shall be made directly to
the beneficiary. A certification which is terminated under this section
may be reinstated for good cause, provided that all required reports
are supplied to the district director.
(b) A representative payee who has conserved or invested funds from
payments under this part shall, upon the direction of the district
director, transfer any such funds (including interest) to a successor
payee appointed by the district director or, at the option of the
district director, shall transfer such funds to the Office for
recertification to a successor payee or the beneficiary.
Sec. 725.514 Certification to dependent of augmentation portion of
benefit.
(a) If the basic benefit of a miner or of a surviving spouse is
augmented because of one or more dependents, and it appears to the
district director that the best interests of such dependent would be
served thereby, or that the augmented benefit is not being used for the
use and benefit (as defined in this subpart) of the augmentee, the
district director may certify payment of the amount of such
augmentation (to the extent attributable to such dependent) to such
dependent directly, or to a legal guardian or a representative payee
for the use and benefit of such dependent.
(b) Any request to the district director to certify separate
payment of the amount of an augmentation in accordance with paragraph
(a) of this section shall be in writing on such form and in accordance
with such instructions as are prescribed by the Office.
(c) The district director shall specify the terms and conditions of
any certification authorized under this section and may terminate any
such certification where appropriate.
(d) Any payment made under this section, if otherwise valid under
the Act, is a complete settlement and satisfaction of all claims,
rights, and interests in and to such payment, except that such payment
shall not be construed to abridge the rights of any party to recoup any
overpayment made.
Sec. 725.515 Assignment and exemption from claims of creditors.
Except as provided by the Act and this part, no assignment,
release, or commutation of benefits due or payable under this part
shall be valid, and all benefits shall be exempt from claims of
creditors and from levy, execution, and attachment or other remedy or
recovery or collection of a debt, which exemption may not be waived.
Benefit Rates
Sec. 725.520 Computation of benefits.
(a) Basic rate. The amount of benefits payable to a beneficiary for
a month is determined, in the first instance, by computing the ``basic
rate.'' The basic rate is equal to 37\1/2\ percent of the monthly pay
rate for Federal employees in GS-2, step 1. That rate for a month is
determined by:
(1) Ascertaining the lowest annual rate of pay (step 1) for Grade
GS-2 of the General Schedule applicable to such month (see 5 U.S.C.
5332);
(2) Ascertaining the monthly rate thereof by dividing the amount
determined in paragraph (a)(1) of this section by 12; and
(3) Ascertaining the basic rate under the Act by multiplying the
amount determined in paragraph (a)(2) of this section by 0.375 (that
is, by 37\1/2\ percent).
(b) Basic benefit. When a miner or surviving spouse is entitled to
benefits for a month for which he or she has no dependents who qualify
under this part and when a surviving child of a miner or spouse, or a
parent, brother, or sister of a miner, is entitled to benefits for a
month for which he or she is the only beneficiary entitled to benefits,
the
[[Page 3415]]
amount of benefits to which such beneficiary is entitled is equal to
the basic rate as computed in accordance with this section (raised, if
not a multiple of 10 cents, to the next high multiple of 10 cents).
This amount is referred to as the ``basic benefit.''
(c) Augmented benefit. (1) When a miner or surviving spouse is
entitled to benefits for a month for which he or she has one or more
dependents who qualify under this part, the amount of benefits to which
such miner or surviving spouse is entitled is increased. This increase
is referred to as an ``augmentation.''
(2) The benefits of a miner or surviving spouse are augmented to
take account of a particular dependent beginning with the first month
in which such dependent satisfies the conditions set forth in this
part, and continues to be augmented through the month before the month
in which such dependent ceases to satisfy the conditions set forth in
this part, except in the case of a child who qualifies as a dependent
because he or she is a student. In the latter case, such benefits
continue to be augmented through the month before the first month
during no part of which he or she qualifies as a student.
(3) The basic rate is augmented by 50 percent for one such
dependent, 75 percent for two such dependents, and 100 percent for
three or more such dependents.
(d) Survivor benefits. As used in this section, ``survivor'' means
a surviving child of a miner or surviving spouse, or a surviving
parent, brother, or sister of a miner, who establishes entitlement to
benefits under this part.
(e) Computation and rounding. (1) Any computation prescribed by
this section is made to the third decimal place.
(2) Monthly benefits are payable in multiples of 10 cents.
Therefore, a monthly payment of amounts derived under paragraph (c)(3)
of this section which is not a multiple of 10 cents is increased to the
next higher multiple of 10 cents.
(3) Since a fraction of a cent is not a multiple of 10 cents, such
an amount which contains a fraction in the third decimal place is
raised to the next higher multiple of 10 cents.
(f) Eligibility based on the coal mine employment of more than one
miner. Where an individual, for any month, is entitled (and/or
qualifies as a dependent for purposes of augmentation of benefits)
based on the disability or death due to pneumoconiosis arising out of
the coal mine employment of more than one miner, the benefit payable to
or on behalf of such individual shall be at a rate equal to the highest
rate of benefits for which entitlement is established by reason of
eligibility as a beneficiary, or by reason of his or her qualification
as a dependent for augmentation of benefit purposes.
Sec. 725.521 Commutation of payments; lump sum awards.
(a) Whenever the district director determines that it is in the
interest of justice, the liability for benefits or any part thereof as
determined by a final adjudication, may, with the approval of the
Director, be discharged by the payment of a lump sum equal to the
present value of future benefit payments commuted, computed at 4
percent true discount compounded annually.
(b) Applications for commutation of future payments of benefits
shall be made to the district director in the manner prescribed by the
district director. If the district director determines that an award of
a lump sum payment of such benefits would be in the interest of
justice, he or she shall refer such application, together with the
reasons in support of such determination, to the Director for
consideration.
(c) The Director shall, in his or her discretion, grant or deny the
application for commutation of payments. Such decision may be appealed
to the Benefits Review Board.
(d) The computation of all commutations of such benefits shall be
made by the OWCP. For this purpose the file shall contain the date of
birth of the person on whose behalf commutation is sought, as well as
the date upon which such commutation shall be effective.
(e) For purposes of determining the amount of any lump sum award,
the probability of the death of the disabled miner and/or other persons
entitled to benefits before the expiration of the period during which
he or she is entitled to benefits, shall be determined in accordance
with the most current United States Life Tables, as developed by the
Department of Health, Education, and Welfare, and the probability of
the remarriage of a surviving spouse shall be determined in accordance
with the remarriage tables of the Dutch Royal Insurance Institution.
The probability of the happening of any other contingency affecting the
amount or duration of the compensation shall be disregarded.
(f) In the event that an operator or carrier is adjudicated liable
for the payment of benefits, such operator or carrier shall be notified
of and given an opportunity to participate in the proceedings to
determine whether a lump sum award shall be made. Such operator or
carrier shall, in the event a lump sum award is made, tender full and
prompt payment of such award to the claimant as though such award were
a final payment of monthly benefits. Except as provided in paragraph
(g) of this section, such lump sum award shall forever discharge such
operator or carrier from its responsibility to make monthly benefit
payments under the Act to the person who has requested such lump-sum
award. In the event that an operator or carrier is adjudicated liable
for the payment of benefits, such operator or carrier shall not be
liable for any portion of a commuted or lump sum award predicated upon
benefits due any claimant prior to January 1, 1974.
(g) In the event a lump-sum award is approved under this section,
such award shall not operate to discharge an operator carrier, or the
fund from any responsibility imposed by the Act for the payment of
medical benefits to an eligible miner.
Sec. 725.522 Payments prior to final adjudication.
(a) If an operator or carrier fails or refuses to commence the
payment of benefits within 30 days of issuance of an initial
determination of eligibility by the district director (see
Sec. 725.420), or fails or refuses to commence the payment of any
benefits due pursuant to an effective order by a district director,
administrative law judge, Benefits Review Board, or court, the fund
shall commence the payment of such benefits and shall continue such
payments as appropriate. In the event that the fund undertakes the
payment of benefits on behalf of an operator or carrier, the provisions
of Secs. 725.601 through 725.609 shall be applicable to such operator
or carrier.
(b) If benefit payments are commenced prior to the final
adjudication of the claim and it is later determined by an
administrative law judge, the Board, or court that the claimant was
ineligible to receive such payments, such payments shall be considered
overpayments pursuant to Sec. 725.540 of this subpart and may be
recovered in accordance with the provisions of this subpart.
Special Provisions for Operator Payments
Sec. 725.530 Operator payments; generally.
(a) Benefits payable by an operator or carrier pursuant to an
effective order issued by a district director, administrative law
judge, Benefits Review Board, or court, or by an operator that has
agreed that it is liable for the payment of benefits to a claimant,
shall be paid by the operator
[[Page 3416]]
or carrier immediately when they become due (see Sec. 725.502(b)). An
operator that fails to pay any benefits that are due, with interest,
shall be considered in default with respect to those benefits, and the
provisions of Sec. 725.605 of this part shall be applicable. In
addition, a claimant who does not receive any benefits within 10 days
of the date they become due is entitled to additional compensation
equal to twenty percent of those benefits (see Sec. 725.607).
Arrangements for the payment of medical costs shall be made by such
operator or carrier in accordance with the provisions of subpart J of
this part.
(b) Benefit payments made by an operator or carrier shall be made
directly to the person entitled thereto or a representative payee if
authorized by the district director. The payment of a claimant's
attorney's fee, if any is awarded, shall be made directly to such
attorney. Reimbursement of the fund, including interest, shall be paid
directly to the Secretary on behalf of the fund.
Sec. 725.531 Receipt for payment.
Any individual receiving benefits under the Act in his or her own
right, or as a representative payee, or as the duly appointed agent for
the estate of a deceased beneficiary, shall execute receipts for
benefits paid by any operator which shall be produced by such operator
for inspection whenever the district director requires. A canceled
check shall be considered adequate receipt of payment for purposes of
this section. No operator or carrier shall be required to retain
receipts for payments made for more than 5 years after the date on
which such receipt was executed.
(Approved by the Office of Management and Budget under control
number 1215-0124)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
Sec. 725.532 Suspension, reduction, or termination of payments.
(a) No suspension, reduction, or termination in the payment of
benefits is permitted unless authorized by the district director,
administrative law judge, Board, or court. No suspension, reduction, or
termination shall be authorized except upon the occurrence of an event
which terminates a claimant's eligibility for benefits (see subpart B
of this part) or as is otherwise provided in subpart C of this part,
Secs. 725.306 and 725.310, or this subpart (see also Secs. 725.533
through 725.546).
(b) Any unauthorized suspension in the payment of benefits by an
operator or carrier shall be treated as provided in subpart I.
(c) Unless suspension, reduction, or termination of benefits
payments is required by an administrative law judge, the Benefits
Review Board or a court, the district director, after receiving
notification of the occurrence of an event that would require the
suspension, reduction, or termination of benefits, shall follow the
procedures for the determination of claims set forth in subparts E and
F.
Increases and Reductions of Benefits
Sec. 725.533 Modification of benefits amounts; general.
(a) Under certain circumstances the amount of monthly benefits as
computed in Sec. 725.520 or lump-sum award (Sec. 725.521) shall be
modified to determine the amount actually to be paid to a beneficiary.
With respect to any benefits payable for all periods of eligibility
after January 1, 1974, a reduction of the amount of benefits payable
shall be required on account of:
(1) Any compensation or benefits received under any State workers'
compensation law because of death or partial or total disability due to
pneumoconiosis; or
(2) Any compensation or benefits received under or pursuant to any
Federal law including part B of title IV of the Act because of death or
partial or total disability due to pneumoconiosis; or
(3) In the case of benefits to a parent, brother, or sister as a
result of a claim filed at any time or benefits payable on a miner's
claim which was filed on or after January 1, 1982, the excess earnings
from wages and from net earnings from self-employment (see Sec. 410.530
of this title) of such parent, brother, sister, or miner, respectively;
or
(4) The fact that a claim for benefits from an additional
beneficiary is filed, or that such claim is effective for a payment
during the month of filing, or a dependent qualifies under this part
for an augmentation portion of a benefit of a miner or widow for a
period in which another dependent has previously qualified for an
augmentation.
(b) With respect to periods of eligibility occurring after June 30,
1973, but before January 1, 1974, benefits shall be reduced in months
of eligibility occurring during such period only:
(1) By an amount equal to any payment received under the workers'
compensation, unemployment compensation, or disability insurance laws
of any State on account of the disability or death of the miner due to
pneumoconiosis; and
(2) On account of excess earnings under section 203 (b) through (l)
of the Social Security Act; and
(3) For failure to report earnings from work in employment and
self-employment within the prescribed period of time; and
(4) By reason of the fact that a claim for benefits from an
additional beneficiary is filed, or that such a claim is effective for
a month prior to the month of filing, or a dependent qualifies under
this part or this chapter for an augmentation portion of a benefit of a
miner or surviving spouse for a month for which another dependent has
previously qualified for an augmentation.
(c) With respect to claims filed between July 1 and December 31,
1973, and paid for periods of eligibility occurring during such period,
there shall be no retroactive adjustment of benefits paid in light of
the amendments enacted by the Black Lung Benefits Reform Act of 1977
insofar as such amendments affect events which cause a reduction in
benefits.
(d) An adjustment in a beneficiary's monthly benefit may be
required because an overpayment or underpayment has been made to such
beneficiary (see Secs. 725.540 through 725.546).
(e) A suspension of a beneficiary's monthly benefits may be
required when the Office has information indicating that reductions on
account of excess earnings may reasonably be expected.
(f) Monthly benefit rates are payable in multiples of 10 cents. Any
monthly benefit rate which, after the applicable computations,
augmentations, and reductions is not a multiple of 10 cents, is
increased to the next higher multiple of 10 cents. Since a fraction of
a cent is not a multiple of 10 cents, a benefit rate which contains
such a fraction in the third decimal is raised to the next higher
multiple of 10 cents.
(g) Any individual entitled to a benefit, who is aware of any
circumstances which could affect entitlement to benefits, eligibility
for payment, or the amount of benefits, or result in the termination,
suspension, or reduction of benefits, shall promptly report these
circumstances to the Office. The Office may at any time require an
individual receiving, or claiming entitlement to, benefits, either on
his or her own behalf or on behalf of another, to submit a written
statement giving pertinent information bearing upon the issue of
whether or not an event has occurred which would cause such benefit to
be terminated, or which would subject such benefit to reductions or
suspension under the provisions of the Act. The failure of an
individual to submit any such report or statement, properly executed,
to the Office shall
[[Page 3417]]
subject such benefit to reductions, suspension, or termination as the
case may be.
Sec. 725.534 Reduction of State benefits.
No benefits under section 415 of part B of title IV of the Act
shall be payable to the residents of a State which, after December 31,
1969, reduces the benefits payable to persons eligible to receive
benefits under section 415 of the Act under State laws applicable to
its general work force with regard to workers' compensation (including
compensation for occupational disease), unemployment compensation, or
disability insurance benefits which are funded in whole or in part out
of employer contributions.
Sec. 725.535 Reductions; receipt of State or Federal benefit.
(a) As used in this section the term ``State or Federal benefit''
means a payment to an individual on account of total or partial
disability or death due to pneumoconiosis only under State or Federal
laws relating to workers' compensation. With respect to a claim for
which benefits are payable for any month between July 1 and December
31, 1973, ``State benefit'' means a payment to a beneficiary made on
account of disability or death due to pneumoconiosis under State laws
relating to workers' compensation (including compensation for
occupational disease), unemployment compensation, or disability
insurance.
(b) Benefit payments to a beneficiary for any month are reduced
(but not below zero) by an amount equal to any payments of State or
Federal benefits received by such beneficiary for such month.
(c) Where a State or Federal benefit is paid periodically but not
monthly, or in a lump sum as a commutation of or a substitution for
periodic benefits, the reduction under this section is made at such
time or times and in such amounts as the Office determines will
approximate as nearly as practicable the reduction required under
paragraph (b) of this section. In making such a determination, a weekly
State or Federal benefit is multiplied by 4\1/3\ and a biweekly benefit
is multiplied by 2\1/6\ to ascertain the monthly equivalent for
reduction purposes.
(d) Amounts paid or incurred or to be incurred by the individual
for medical, legal, or related expenses in connection with this claim
for State or Federal benefits (defined in paragraph (a) of this
section) are excluded in computing the reduction under paragraph (b) of
this section, to the extent that they are consistent with State or
Federal Law. Such medical, legal, or related expenses may be evidenced
by the State or Federal benefit awards, compromise agreement, or court
order in the State or Federal benefit proceedings, or by such other
evidence as the Office may require. Such other evidence may consist of:
(1) A detailed statement by the individual's attorney, physician,
or the employer's insurance carrier; or
(2) Bills, receipts, or canceled checks; or
(3) Other evidence indicating the amount of such expenses; or
(4) Any combination of the foregoing evidence from which the amount
of such expenses may be determinable. Such expenses shall not be
excluded unless established by evidence as required by the Office.
Sec. 725.536 Reductions; excess earnings.
In the case of a surviving parent, brother, or sister, whose claim
was filed at any time, or of a miner whose claim was filed on or after
January 1, 1982, benefit payments are reduced as appropriate by an
amount equal to the deduction which would be made with respect to
excess earnings under the provisions of sections 203 (b), (f), (g),
(h), (j), and (l) of the Social Security Act (42 U.S.C. 403 (b), (f),
(g), (h), (j), and (l)), as if such benefit payments were benefits
payable under section 202 of the Social Security Act (42 U.S.C. 402)
(see Secs. 404.428 through 404.456 of this title).
Sec. 725.537 Reductions; retroactive effect of an additional claim for
benefits.
Except as provided in Sec. 725.212(b), beginning with the month in
which a person other than a miner files a claim and becomes entitled to
benefits, the benefits of other persons entitled to benefits with
respect to the same miner, are adjusted downward, if necessary, so that
no more than the permissible amount of benefits (the maximum amount for
the number of beneficiaries involved) will be paid.
Sec. 725.538 Reductions; effect of augmentation of benefits based on
subsequent qualification of individual.
(a) Ordinarily, a written request that the benefits of a miner or
surviving spouse be augmented on account of a qualified dependent is
made as part of the claim for benefits. However, it may also be made
thereafter.
(b) In the latter case, beginning with the month in which such a
request is filed on account of a particular dependent and in which such
dependent qualifies for augmentation purposes under this part, the
augmented benefits attributable to other qualified dependents (with
respect to the same miner or surviving spouse), if any, are adjusted
downward, if necessary, so that the permissible amount of augmented
benefits (the maximum amount for the number of dependents involved)
will not be exceeded.
(c) Where, based on the entitlement to benefits of a miner or
surviving spouse, a dependent would have qualified for augmentation
purposes for a prior month of such miner's or surviving spouse's
entitlement had such request been filed in such prior month, such
request is effective for such prior month. For any month before the
month of filing such request, however, otherwise correct benefits
previously certified by the Office may not be changed. Rather the
amount of the augmented benefit attributable to the dependent filing
such request in the later month is reduced for each month of the
retroactive period to the extent that may be necessary. This means that
for each month of the retroactive period, the amount payable to the
dependent filing the later augmentation request is the difference, if
any, between:
(1) The total amount of augmented benefits certified for payment
for other dependents for that month, and
(2) The permissible amount of augmented benefits (the maximum
amount for the number of dependents involved) payable for the month for
all dependents, including the dependent filing later.
Sec. 725.539 More than one reduction event.
If a reduction for receipt of State or Federal benefits and a
reduction on account of excess earnings are chargeable to the same
month, the benefit for such month is first reduced (but not below zero)
by the amount of the State or Federal benefits, and the remainder of
the benefit for such month, if any, is then reduced (but not below
zero) by the amount of excess earnings chargeable to such month.
Overpayments; Underpayments
Sec. 725.540 Overpayments.
(a) General. As used in this subpart, the term ``overpayment''
includes:
(1) Payment where no amount is payable under this part;
(2) Payment in excess of the amount payable under this part;
(3) A payment under this part which has not been reduced by the
amounts required by the Act (see Sec. 725.533);
(4) A payment under this part made to a resident of a State whose
residents are not entitled to benefits (see Secs. 725.402 and 725.403);
[[Page 3418]]
(5) Payment resulting from failure to terminate benefits to an
individual no longer entitled thereto;
(6) Duplicate benefits paid to a claimant on account of concurrent
eligibility under this part and parts 410 or 727 (see Sec. 725.4(d)) of
this title or as provided in Sec. 725.309.
(b) Overpaid beneficiary is living. If the beneficiary to whom an
overpayment was made is living at the time of a determination of such
overpayment, is entitled to benefits at the time of the overpayment, or
at any time thereafter becomes so entitled, no benefit for any month is
payable to such individual, except as provided in paragraph (c) of this
section, until an amount equal to the amount of the overpayment has
been withheld or refunded.
(c) Adjustment by withholding part of a monthly benefit. Adjustment
under paragraph (b) of this section may be effected by withholding a
part of the monthly benefit payable to a beneficiary where it is
determined that:
(1) Withholding the full amount each month would deprive the
beneficiary of income required for ordinary and necessary living
expenses;
(2) The overpayment was not caused by the beneficiary's
intentionally false statement or representation, or willful concealment
of, or deliberate failure to furnish, material information; and
(3) Recoupment can be effected in an amount of not less than $10 a
month and at a rate which would not unreasonably extend the period of
adjustment.
(d) Overpaid beneficiary dies before adjustment. If an overpaid
beneficiary dies before adjustment is completed under the provisions of
paragraph (b) of this section, recovery of the overpayment shall be
effected through repayment by the estate of the deceased overpaid
beneficiary, or by withholding of amounts due the estate of such
deceased beneficiary, or both.
Sec. 725.541 Notice of waiver of adjustment or recovery of
overpayment.
Whenever a determination is made that more than the correct amount
of payment has been made, notice of the provisions of section 204(b) of
the Social Security Act regarding waiver of adjustment or recovery
shall be sent to the overpaid individual, to any other individual
against whom adjustment or recovery of the overpayment is to be
effected, and to any operator or carrier which may be liable to such
overpaid individual.
Sec. 725.542 When waiver of adjustment or recovery may be applied.
There shall be no adjustment or recovery of an overpayment in any
case where an incorrect payment has been made with respect to an
individual:
(a) Who is without fault, and where
(b) Adjustment or recovery would either:
(1) Defeat the purpose of title IV of the Act, or
(2) Be against equity and good conscience.
Sec. 725.543 Standards for waiver of adjustment or recovery.
The standards for determining the applicability of the criteria
listed in Sec. 725.542 shall be the same as those applied by the Social
Security Administration under Secs. 410.561 through 410.561h of this
title.
Sec. 725.544 Collection and compromise of claims for overpayment.
(a) General effect of the Federal Claims Collection Act of 1966. In
accordance with the Federal Claims Collection Act of 1966 and
applicable regulations, claims by the Office against an individual for
recovery of an overpayment under this part not exceeding the sum of $
20,000, exclusive of interest, may be compromised, or collection
suspended or terminated, where such individual or his or her estate
does not have the present or prospective ability to pay the full amount
of the claim within a reasonable time (see paragraph (c) of this
section), or the cost of collection is likely to exceed the amount of
recovery (see paragraph (d) of this section), except as provided under
paragraph (b) of this section.
(b) When there will be no compromise, suspension, or termination of
collection of a claim for overpayment. (1) In any case where the
overpaid individual is alive, a claim for overpayment will not be
compromised, nor will there be suspension or termination of collection
of the claim by the Office, if there is an indication of fraud, the
filing of a false claim, or misrepresentation on the part of such
individual or on the part of any other party having any interest in the
claim.
(2) In any case where the overpaid individual is deceased:
(i) A claim for overpayment in excess of $5,000 will not be
compromised, nor will there be suspension or termination of collection
of the claim by the Office if there is an indication of fraud, the
filing of a false claim, or misrepresentation on the part of such
deceased individual; and
(ii) A claim for overpayment, regardless of the amount, will not be
compromised, nor will there be suspension or termination of collection
of the claim by the Office if there is an indication that any person
other than the deceased overpaid individual had a part in the
fraudulent action which resulted in the overpayment.
(c) Inability to pay claim for recovery of overpayment. In
determining whether the overpaid individual is unable to pay a claim
for recovery of an overpayment under this part, the Office shall
consider the individual's age, health, present and potential income
(including inheritance prospects), assets (e.g., real property, savings
account), possible concealment or improper transfer of assets, and
assets or income of such individual which may be available in enforced
collection proceedings. The Office will also consider exemptions
available to such individual under the pertinent State or Federal law
in such proceedings. In the event the overpaid individual is deceased,
the Office shall consider the available assets of the estate, taking
into account any liens or superior claims against the estate.
(d) Cost of collection or litigative probabilities. Where the
probable costs of recovering an overpayment under this part would not
justify enforced collection proceedings for the full amount of the
claim, or where there is doubt concerning the Office's ability to
establish its claim as well as the time which it will take to effect
such collection, a compromise or settlement for less than the full
amount may be considered.
(e) Amount of compromise. The amount to be accepted in compromise
of a claim for overpayment under this part shall bear a reasonable
relationship to the amount which can be recovered by enforced
collection proceedings, giving due consideration to the exemption
available to the overpaid individual under State or Federal law and the
time which collection will take.
(f) Payment. Payment of the amount the Office has agreed to accept
as a compromise in full settlement of a claim for recovery of an
overpayment under this part shall be made within the time and in the
manner set by the Office. A claim for the overpayment shall not be
considered compromised or settled until the full payment of the
compromised amount has been made within the time and manner set by the
Office. Failure of the overpaid individual or his or her estate to make
such payment as provided shall result in reinstatement of the full
amount of the overpayment less any amounts paid prior to such default.
(Approved by the Office of Management and Budget under control
number 1215-0144)
[[Page 3419]]
(Pub. L. No. 96-511)
Sec. 725.545 Underpayments.
(a) General. As used in this subpart, the term ``underpayment''
includes a payment in an amount less than the amount of the benefit due
for such month, and nonpayment where some amount of such benefits is
payable.
(b) Underpaid individual is living. If an individual to whom an
underpayment was made is living, the deficit represented by such
underpayment shall be paid to such individual either in a single
payment (if he or she is not entitled to a monthly benefit or if a
single payment is requested by the claimant in writing) or by
increasing one or more monthly benefit payments to which such
individual becomes entitled.
(c) Underpaid individual dies before adjustment of underpayment. If
an individual to whom an underpayment was made dies before receiving
payment of the deficit or negotiating the check or checks representing
payment of the deficit, such payment shall be distributed to the living
person (or persons) in the highest order of priority as follows:
(1) The deceased individual's surviving spouse who was either:
(i) Living in the same household with the deceased individual at
the time of such individual's death; or
(ii) In the case of a deceased miner, entitled for the month of
death to black lung benefits as his or her surviving spouse or
surviving divorced spouse.
(2) In the case of a deceased miner or spouse his or her child
entitled to benefits as the surviving child of such miner or surviving
spouse for the month in which such miner or spouse died (if more than
one such child, in equal shares to each such child).
(3) In the case of a deceased miner, his parent entitled to
benefits as the surviving parent of such miner for the month in which
such miner died (if more than one such parent, in equal shares to each
such parent).
(4) The surviving spouse of the deceased individual who does not
qualify under paragraph (c)(1) of this section.
(5) The child or children of the deceased individual who do not
qualify under paragraph (c)(2) of this section (if more than one such
child, in equal shares to each such child).
(6) The parent or parents of the deceased individual who do not
qualify under paragraph (c)(3) of this section (if more than one such
parent, in equal shares to each such parent).
(7) The legal representative of the estate of the deceased
individual as defined in paragraph (e) of this section.
(d) Deceased beneficiary. In the event that a person, who is
otherwise qualified to receive payments as the result of a deficit
caused by an underpayment under the provisions of paragraph (c) of this
section, dies before receiving payment or before negotiating the check
or checks representing such payment, his or her share of the
underpayment shall be divided among the remaining living person(s) in
the same order or priority. In the event that there is (are) no other
such person(s), the underpayment shall be paid to the living person(s)
in the next lower order of priority under paragraph (c) of this
section.
(e) Definition of legal representative. The term ``legal
representative,'' for the purpose of qualifying for receipt of an
underpayment, generally means the executor or the administrator of the
estate of the deceased beneficiary. However, it may also include an
individual, institution or organization acting on behalf of an
unadministered estate, provided the person can give the Office good
acquittance (as defined in paragraph (f) of this section). The
following persons may qualify as legal representative for purposes of
this section, provided they can give the Office good acquittance:
(1) A person who qualifies under a State's ``small estate''
statute; or
(2) A person resident in a foreign country who under the laws and
customs of that country, has the right to receive assets of the estate;
or
(3) A public administrator; or
(4) A person who has the authority under applicable law to collect
the assets of the estate of the deceased beneficiary.
(f) Definition of ``good acquittance.'' A person is considered to
give the Office ``good acquittance'' when payment to that person will
release the Office from further liability for such payment.
Sec. 725.546 Relation to provisions for reductions or increases.
The amount of an overpayment or an underpayment is the difference
between the amount to which the beneficiary was actually entitled and
the amount paid. Overpayment and underpayment simultaneously
outstanding against the same beneficiary shall first be adjusted
against one another before adjustment pursuant to the other provisions
of this subpart.
Sec. 725.547 Applicability of overpayment and underpayment provisions
to operator or carrier.
(a) The provisions of this subpart relating to overpayments and
underpayments shall be applicable to overpayments and underpayments
made by responsible operators or their insurance carriers, as
appropriate.
(b) No operator or carrier may recover, or make an adjustment of,
an overpayment without prior application to, and approval by, the
Office which shall exercise full supervisory authority over the
recovery or adjustment of all overpayments.
(c) In any case involving either overpayments or underpayments, the
Office may take any necessary action, and district directors may issue
appropriate orders to protect the rights of the parties.
(d) Disputes arising out of orders so issued shall be resolved by
the procedures set out in subpart F of this part.
Subpart I--Enforcement of Liability; Reports
Sec. 725.601 Enforcement generally.
(a) The Act, together with certain incorporated provisions from the
Longshoremen's and Harbor Workers' Compensation Act, contains a number
of provisions which subject an operator or other employer, claimants
and others to penalties for failure to comply with certain provisions
of the Act, or failure to commence and continue prompt periodic
payments to a beneficiary.
(b) It is the policy and intent of the Department to vigorously
enforce the provisions of this part through the use of the remedies
provided by the Act. Accordingly, if an operator refuses to pay
benefits with respect to a claim for which the operator has been
adjudicated liable, the Director shall invoke and execute the lien on
the property of the operator as described in Sec. 725.603. Enforcement
of this lien shall be pursued in an appropriate U.S. district court. If
the Director determines that the remedy provided by Sec. 725.603 may
not be sufficient to guarantee the continued compliance with the terms
of an award or awards against the operator, the Director shall in
addition seek an injunction in the U.S. district court to prohibit
future noncompliance by the operator and such other relief as the court
considers appropriate (see Sec. 725.604). If an operator unlawfully
suspends or terminates the payment of benefits to a claimant, the
district director shall declare the award in default and proceed in
accordance with Sec. 725.605. In all cases payments in
[[Page 3420]]
addition to compensation (see Sec. 725.607) and interest (see
Sec. 725.608) shall be sought by the Director or awarded by the
district director.
(c) In certain instances the remedies provided by the Act are
concurrent; that is, more than one remedy might be appropriate in any
given case. In such a case, the Director shall select the remedy or
remedies appropriate for the enforcement action. In making this
selection, the Director shall consider the best interests of the
claimant as well as those of the fund.
Sec. 725.602 Reimbursement of the fund.
(a) In any case in which the fund has paid benefits, including
medical benefits, on behalf of an operator or other employer which is
determined liable therefore, or liable for a part thereof, such
operator or other employer shall simultaneously with the first payment
of benefits made to the beneficiary, reimburse the fund (with interest)
for the full amount of all benefit payments made by the fund with
respect to the claim.
(b) In any case where benefit payments have been made by the fund,
the fund shall be subrogated to the rights of the beneficiary. The
Secretary of Labor may, as appropriate, exercise such subrogation
rights.
Sec. 725.603 Payments by the fund on behalf of an operator; liens.
(a) If an amount is paid out of the fund to an individual entitled
to benefits under this part or part 727 of this subchapter (see
Sec. 725.4(d)) on behalf of an operator or other employer which is or
was required to pay or secure the payment of all or a portion of such
amount (see Sec. 725.522), the operator or other employer shall be
liable to the United States for repayment to the fund of the amount of
benefits properly attributable to such operator or other employer.
(b) If an operator or other employer liable to the fund refuses to
pay, after demand, the amount of such liability, there shall be a lien
in favor of the United States upon all property and rights to property,
whether real or personal, belonging to such operator or other employer.
The lien arises on the date on which such liability is finally
determined, and continues until it is satisfied or becomes
unenforceable by reason of lapse of time.
(c)(1) Except as otherwise provided under this section, the
priority of the lien shall be determined in the same manner as under
section 6323 of the Internal Revenue Code of 1954.
(2) In the case of a bankruptcy or insolvency proceeding, the lien
imposed under this section shall be treated in the same manner as a
lien for taxes due and owing to the United States for purposes of the
Bankruptcy Act or section 3466 of the Revised Statutes (31 U.S.C. 191).
(3) For purposes of applying section 6323(a) of the Internal
Revenue Code of 1954 to determine the priority between the lien imposed
under this section and the Federal tax lien, each lien shall be treated
as a judgment lien arising as of the time notice of such lien is filed.
(4) For purposes of the section, notice of the lien imposed
hereunder shall be filed in the same manner as under section 6323(f)
(disregarding paragraph (4) thereof) and (g) of the Internal Revenue
Code of 1954.
(5) In any case where there has been a refusal or neglect to pay
the liability imposed under this section, the Secretary of Labor may
bring a civil action in a district court of the United States to
enforce the lien of the United States under this section with respect
to such liability or to subject any property, of whatever nature, of
the operator, or in which it has any right, title, or interest, to the
payment of such liability.
(6) The liability imposed by this paragraph may be collected at a
proceeding in court if the proceeding is commenced within 6 years after
the date upon which the liability was finally determined, or prior to
the expiration of any period for collection agreed upon in writing by
the operator and the United States before the expiration of such 6-year
period. This period of limitation shall be suspended for any period
during which the assets of the operator are in the custody or control
of any court of the United States, or of any State, or the District of
Columbia, and for 6 months thereafter, and for any period during which
the operator is outside the United States if such period of absence is
for a continuous period of at least 6 months.
Sec. 725.604 Enforcement of final awards.
Notwithstanding the provisions of Sec. 725.603, if an operator or
other employer or its officers or agents fails to comply with an order
awarding benefits that has become final, any beneficiary of such award
or the district director may apply for the enforcement of the order to
the Federal district court for the judicial district in which the
injury occurred (or to the U.S. District Court for the District of
Columbia if the injury occurred in the District). If the court
determines that the order was made and served in accordance with law,
and that such operator or other employer or its officers or agents have
failed to comply therewith, the court shall enforce obedience to the
order by writ of injunction or by other proper process, mandatory or
otherwise, to enjoin upon such operator or other employer and its
officers or agents compliance with the order.
Sec. 725.605 Defaults.
(a) Except as is otherwise provided in this part, no suspension,
termination or other failure to pay benefits awarded to a claimant is
permitted. If an employer found liable for the payment of such benefits
fails to make such payments within 30 days after any date on which such
benefits are due and payable, the person to whom such benefits are
payable may, within one year after such default, make application to
the district director for a supplementary order declaring the amount of
the default.
(b) If after investigation, notice and hearing as provided in
subparts E and F of this part, a default is found, the district
director or the administrative law judge, if a hearing is requested,
shall issue a supplementary order declaring the amount of the default,
if any. In cases where a lump-sum award has been made, if the payment
in default is an installment, the district director or administrative
law judge, may, in his or her discretion, declare the whole of the
award as the amount in default. The applicant may file a certified copy
of such supplementary order with the clerk of the Federal district
court for the judicial district in which the operator has its principal
place of business or maintains an office or for the judicial district
in which the injury occurred. In case such principal place of business
or office is in the District of Columbia, a copy of such supplementary
order may be filed with the clerk of the U.S. District Court for the
District of Columbia. Such supplementary order shall be final and the
court shall, upon the filing of the copy, enter judgment for the amount
declared in default by the supplementary order if such supplementary
order is in accordance with law. Review of the judgment may be had as
in civil suits for damages at common law. Final proceedings to execute
the judgment may be had by writ of execution in the form used by the
court in suits at common law in actions of assumpsit. No fee shall be
required for filing the supplementary order nor for entry of judgment
thereon, and the applicant shall not be liable for costs in a
proceeding for review of the judgment unless the court shall otherwise
direct. The court shall modify such judgment to conform to any later
benefits order upon presentation of a certified copy thereof to the
court.
[[Page 3421]]
(c) In cases where judgment cannot be satisfied by reason of the
employer's insolvency or other circumstances precluding payment, the
district director shall make payment from the fund, and in addition,
provide any necessary medical, surgical, and other treatment required
by subpart J of this part. A defaulting employer shall be liable to the
fund for payment of the amounts paid by the fund under this section;
and for the purpose of enforcing this liability, the fund shall be
subrogated to all the rights of the person receiving such payments or
benefits.
Sec. 725.606 Security for the payment of benefits.
(a) Following the issuance of an effective order by a district
director (see Sec. 725.418), administrative law judge (see
Sec. 725.479), Benefits Review Board, or court that requires the
payment of benefits by an operator that has failed to secure the
payment of benefits in accordance with section 423 of the Act and
Sec. 726.4 of this subchapter, or by a coal mine construction or
transportation employer, the Director may request that the operator
secure the payment of all benefits ultimately payable on the claim.
Such operator or other employer shall thereafter immediately secure the
payment of benefits in accordance with the provisions of this section,
and provide proof of such security to the Director. Such security may
take the form of an indemnity bond, a deposit of cash or negotiable
securities in compliance with Secs. 726.106(c) and 726.107 of this
subchapter, or any other form acceptable to the Director.
(b) The amount of security initially required by this section shall
be determined as follows:
(1) In a case involving an operator subject to section 423 of the
Act and Sec. 726.4 of this subchapter, the amount of the security shall
not be less than $175,000, and may be a higher amount as determined by
the Director, taking into account the life expectancies of the claimant
and any dependents using the most recent life expectancy tables
published by the Social Security Administration; or
(2) In a case involving a coal mine construction or transportation
employer, the amount of the security shall be determined by the
Director, taking into account the life expectancies of the claimant and
any dependents using the most recent life expectancy tables published
by the Social Security Administration.
(c) If the operator or other employer fails to provide proof of
such security to the Director within 30 days of its receipt of the
Director's request to secure the payment of benefits issued under
paragraph (a), the appropriate adjudication officer shall issue an
order requiring the operator or other employer to make a deposit of
negotiable securities with a Federal Reserve Bank in the amount
required by paragraph (a). Such securities shall comply with the
requirements of Secs. 726.106(c) and 726.107 of this subchapter. In a
case in which the effective order was issued by a district director,
the district director shall be considered the appropriate adjudication
officer. In any other case, the administrative law judge who issued the
most recent decision in the case, or such other administrative law
judge as the Chief Administrative Law Judge shall designate, shall be
considered the appropriate adjudication officer, and shall issue an
order under this paragraph on motion of the Director. The
administrative law judge shall have jurisdiction to issue an order
under this paragraph notwithstanding the pendency of an appeal of the
award of benefits with the Benefits Review Board or court.
(d) An order issued under this section shall be considered
effective when issued. Disputes regarding such orders shall be resolved
in accordance with subpart F of this part.
(e) Notwithstanding any further review of the order in accordance
with subpart F of this part, if an operator or other employer subject
to an order issued under this section fails to comply with such order,
the appropriate adjudication officer shall certify such non-compliance
to the appropriate United States district court in accordance with
Sec. 725.351(c).
(f) Security posted in accordance with this section may be used to
make payment of benefits that become due with respect to the claim in
accordance with Sec. 725.502. In the event that either the order
awarding compensation or the order issued under this section is vacated
or reversed, the operator or other employer may apply to the
appropriate adjudication officer for an order authorizing the return of
any amounts deposited with the United States Treasurer and not yet
disbursed, and such application shall be granted. If at any time the
Director determines that additional security is required beyond that
initially required by paragraph (b), he may request the operator or
other employer to increase the amount. Such request shall be treated as
if it were issued under paragraph (a) of this section.
(g) If a coal mine construction or transportation employer fails to
comply with an order issued under paragraph (c), and such employer is a
corporation, the provisions of Sec. 725.609 shall be applicable to the
president, secretary, and treasurer of such employer.
Sec. 725.607 Payments in addition to compensation.
(a) If any benefits payable under the terms of an award by a
district director (Sec. 725.419(d)), a decision and order filed and
served by an administrative law judge (Sec. 725.478), or a decision
filed by the Board or a U.S. court of appeals, are not paid by an
operator or other employer ordered to make such payments within 10 days
after such payments become due, there shall be added to such unpaid
benefits an amount equal to 20 percent thereof, which shall be paid to
the claimant at the same time as, but in addition to, such benefits,
unless review of the order making such award is sought as provided in
section 21 of the LHWCA and an order staying payments has been issued.
(b) If, on account of an operator's or other employer's failure to
pay benefits as provided in paragraph (a) of this section, benefit
payments are made by the fund, the eligible claimant shall nevertheless
be entitled to receive such additional compensation to which he or she
may be eligible under paragraph (a) of this section, with respect to
all amounts paid by the fund on behalf of such operator or other
employer.
(c) The fund shall not be liable for payments in addition to
compensation under any circumstances.
Sec. 725.608 Interest.
(a)(1) In any case in which an operator fails to pay benefits that
are due (Sec. 725.502), the beneficiary shall also be entitled to
simple annual interest, computed from the date on which the benefits
were due. The interest shall be computed through the date on which the
operator paid the benefits, except that the beneficiary shall not be
entitled to interest for any period following the date on which the
beneficiary received payment of any benefits from the fund pursuant to
Sec. 725.522.
(2) In any case in which an operator is liable for the payment of
retroactive benefits, the beneficiary shall also be entitled to simple
annual interest on such benefits, computed from 30 days after the date
of the first determination that such an award should be made. The first
determination that such an award should be made may be a district
director's initial determination of entitlement, an award made by an
administrative law judge or a decision by the Board or a court,
whichever is the first such determination of entitlement made upon the
claim.
[[Page 3422]]
(3) In any case in which an operator is liable for the payment of
additional compensation (Sec. 725.607), the beneficiary shall also be
entitled to simple annual interest computed from the date upon which
the beneficiary's right to additional compensation first arose.
(4) In any case in which an operator is liable for the payment of
medical benefits, the beneficiary or medical provider to whom such
benefits are owed shall also be entitled to simple annual interest,
computed from the date upon which the services were rendered, or from
30 days after the date of the first determination that the miner is
generally entitled to medical benefits, whichever is later. The first
determination that the miner is generally entitled to medical benefits
may be a district director's initial determination of entitlement, an
award made by an administrative law judge or a decision by the Board or
a court, whichever is the first such determination of general
entitlement made upon the claim. The interest shall be computed through
the date on which the operator paid the benefits, except that the
beneficiary shall not be entitled to interest for any period following
the date on which the beneficiary received payment of any benefits from
the fund pursuant to Sec. 725.522 or subpart I of this part.
(b) If an operator or other employer fails or refuses to pay any or
all benefits due pursuant to an award of benefits or an initial
determination of eligibility made by the district director and the fund
undertakes such payments, such operator or other employer shall be
liable to the fund for simple annual interest on all payments made by
the fund for which such operator is determined liable, computed from
the first date on which such benefits are paid by the fund, in addition
to such operator's liability to the fund, as is otherwise provided in
this part. Interest payments owed pursuant to this paragraph shall be
paid directly to the fund.
(c) In any case in which an operator is liable for the payment of
an attorney's fee pursuant to Sec. 725.367, and the attorney's fee is
payable because the award of benefits has become final, the attorney
shall also be entitled to simple annual interest, computed from the
date on which the attorney's fee was awarded. The interest shall be
computed through the date on which the operator paid the attorney's
fee.
(d) The rates of interest applicable to paragraphs (a), (b), and
(c) of this section shall be computed as follows:
(1) For all amounts outstanding prior to January 1, 1982, the rate
shall be 6% simple annual interest;
(2) For all amounts outstanding for any period during calendar year
1982, the rate shall be 15% simple annual interest; and
(3) For all amounts outstanding during any period after calendar
year 1982, the rate shall be simple annual interest at the rate
established by section 6621 of the Internal Revenue Code of 1954 which
is in effect for such period.
(e) The fund shall not be liable for the payment of interest under
any circumstances, other than the payment of interest on advances from
the United States Treasury as provided by section 9501(c) of the
Internal Revenue Code of 1954.
Sec. 725.609 Enforcement against other persons.
In any case in which an award of benefits creates obligations on
the part of an operator or insurer that may be enforced under the
provisions of this subpart, such obligations may also be enforced, in
the discretion of the Secretary or district director, as follows:
(a) In a case in which the operator is a sole proprietorship or
partnership, against any person who owned, or was a partner in, such
operator during any period commencing on or after the date on which the
miner was last employed by the operator;
(b) In a case in which the operator is a corporation that failed to
secure its liability for benefits in accordance with section 423 of the
Act and Sec. 726.4, and the operator has not secured its liability for
the claim in accordance with Sec. 725.606, against any person who
served as the president, secretary, or treasurer of such corporation
during any period commencing on or after the date on which the miner
was last employed by the operator;
(c) In a case in which the operator is no longer capable of
assuming its liability for the payment of benefits (Sec. 725.494(e)),
against any operator which became a successor operator with respect to
the liable operator (Sec. 725.492) after the date on which the claim
was filed, beginning with the most recent such successor operator;
(d) In a case in which the operator is no longer capable of
assuming its liability for the payment of benefits (Sec. 725.494(e)),
and such operator was a subsidiary of a parent company or a product of
a joint venture, or was substantially owned or controlled by another
business entity, against such parent entity, any member of such joint
venture, or such controlling business entity; or
(e) Against any other person who has assumed or succeeded to the
obligations of the operator or insurer by operation of any state or
federal law, or by any other means.
Sec. 725.620 Failure to secure benefits; other penalties.
(a) If an operator fails to discharge its insurance obligations
under the Act, the provisions of subpart D of part 726 shall apply.
(b) Any employer who knowingly transfers, sells, encumbers,
assigns, or in any manner disposes of, conceals, secrets, or destroys
any property belonging to such employer, after one of its employees has
been injured within the purview of the Act, and with intent to avoid
the payment of benefits under the Act to such miner or his or her
dependents, shall be guilty of a misdemeanor and, upon conviction
thereof, shall be punished by a fine of not more than $1,000, or by
imprisonment for not more than one year, or by both. In any case where
such employer is a corporation, the president, secretary, and treasurer
thereof shall be also severally liable for such penalty or imprisonment
as well as jointly liable with such corporation for such fine.
(c) No agreement by a miner to pay any portion of a premium paid to
a carrier by such miner's employer or to contribute to a benefit fund
or department maintained by such employer for the purpose of providing
benefits or medical services and supplies as required by this part
shall be valid; and any employer who makes a deduction for such purpose
from the pay of a miner entitled to benefits under the Act shall be
guilty of a misdemeanor and upon conviction thereof shall be punished
by a fine of not more than $1,000.
(d) No agreement by a miner to waive his or her right to benefits
under the Act and the provisions of this part shall be valid.
(e) This section shall not affect any other liability of the
employer under this part.
Sec. 725.621 Reports.
(a) Upon making the first payment of benefits and upon suspension,
reduction, or increase of payments, the operator or other employer
responsible for making payments shall immediately notify the district
director of the action taken, in accordance with a form prescribed by
the Office.
(b) Within 16 days after final payment of benefits has been made by
an employer, such employer shall so notify the district director, in
accordance with a form prescribed by the Office, stating
[[Page 3423]]
that such final payment, has been made, the total amount of benefits
paid, the name of the beneficiary, and such other information as the
Office deems pertinent.
(c) The Director may from time to time prescribe such additional
reports to be made by operators, other employers, or carriers as the
Director may consider necessary for the efficient administration of the
Act.
(d) Any employer who fails or refuses to file any report required
of such employer under this section shall be subject to a civil penalty
not to exceed $500 for each failure or refusal, which penalty shall be
determined in accordance with the procedures set forth in subpart D of
part 726, as appropriate. The maximum penalty applicable to any
violation of this paragraph that takes place after [effective date of
the final rule] shall be $550.
(e) No request for information or response to such request shall be
considered a report for purposes of this section or the Act, unless it
is so designated by the Director or by this section.
(Approved by the Office of Management and Budget under control
number 1215-0064)
(Pub. L. No. 96-511)
Subpart J--Medical Benefits and Vocational Rehabilitation
Sec. 725.701 Availability of medical benefits.
(a) A miner who is determined to be eligible for benefits under
this part or part 727 of this subchapter (see Sec. 725.4(d)) is
entitled to medical benefits as set forth in this subpart as of the
date of his or her claim, but in no event before January 1, 1974. No
medical benefits shall be provided to the survivor or dependent of a
miner under this part.
(b) A responsible operator, other employer, or where there is
neither, the fund, shall furnish a miner entitled to benefits under
this part with such medical, surgical, and other attendance and
treatment, nursing and hospital services, medicine and apparatus, and
any other medical service or supply, for such periods as the nature of
the miner's pneumoconiosis and ancillary pulmonary conditions and
disability require.
(c) The medical benefits referred to in paragraphs (a) and (b) of
this section shall include palliative measures useful only to prevent
pain or discomfort associated with the miner's pneumoconiosis or
attendant disability.
(d) The costs recoverable under this subpart shall include the
reasonable cost of travel necessary for medical treatment (to be
determined in accordance with prevailing United States government
mileage rates) and the reasonable documented cost to the miner or
medical provider incurred in communicating with the employer, carrier,
or district director on matters connected with medical benefits.
(e) If a miner receives treatment, as described in this section,
for any pulmonary disorder, there shall be a rebuttable presumption
that the disorder is caused or aggravated by the miner's
pneumoconiosis. The presumption may be rebutted by evidence that the
specific disorder being treated is neither related to, nor aggravated
by, the miner's pneumoconiosis. The party liable for the payment of
benefits shall bear the burden to rebut the presumption (see
Sec. 725.103).
(f) Evidence that the miner does not have pneumoconiosis or is not
totally disabled by pneumoconiosis arising out of coal mine employment
is insufficient to establish any fact concerning a miner's entitlement
to medical benefits under this subpart.
Sec. 725.702 Claims for medical benefits only under section 11 of the
Reform Act.
(a) Section 11 of the Reform Act directs the Secretary of Health,
Education and Welfare to notify each miner receiving benefits under
part B of title IV of the Act that he or she may file a claim for
medical treatment benefits described in this subpart. Section
725.308(b) of this subpart provides that a claim for medical treatment
benefits shall be filed on or before December 31, 1980, unless the
period is enlarged for good cause shown. This section sets forth the
rules governing the processing, adjudication, and payment of claims
filed under section 11.
(b) (1) A claim filed pursuant to the notice described in paragraph
(a) of this section shall be considered a claim for medical benefits
only, and shall be filed, processed, and adjudicated in accordance with
the provisions of this part, except as provided in this section. While
a claim for medical benefits must be treated as any other claim filed
under part C of title IV of the Act, the Department shall accept the
Social Security Administration's finding of entitlement as its initial
determination.
(2) In the case of a part B beneficiary whose coal mine employment
terminated before January 1, 1970, the Secretary shall make an
immediate award of medical benefits. Where the part B beneficiary's
coal mine employment terminated on or after January 1, 1970, the
Secretary shall immediately authorize the payment of medical benefits
and thereafter inform the responsible operator, if any, of the
operator's right to contest the claimant's entitlement for medical
benefits.
(c) A miner on whose behalf a claim is filed under this section
(see Sec. 725.301) must have been alive on March 1, 1978, in order for
the claim to be considered.
(d) The criteria contained in subpart C of part 727 of this
subchapter (see Sec. 725.4(d)) are applicable to claims for medical
benefits filed under this section.
(e) No determination made with respect to a claim filed under this
section shall affect any determination previously made by the Social
Security Administration. The Social Security Administration may,
however, reopen a previously approved claim if the conditions set forth
in Sec. 410.672(c) of this chapter are present. These conditions are
generally limited to fraud or concealment.
(f) If medical benefits are awarded under this section, such
benefits shall be payable by a responsible coal mine operator (see
subpart G of this part), if the miner's last employment occurred on or
after January 1, 1970, and in all other cases by the fund. An operator
which may be required to provide medical treatment benefits to a miner
under this section shall have the right to participate in the
adjudication of the claim as is otherwise provided in this part.
(g) Any miner whose coal mine employment terminated after January
1, 1970, may be required to submit to a medical examination requested
by an identified operator. The unreasonable refusal to submit to such
an examination shall have the same consequences as are provided under
Sec. 725.414.
(h) If a miner is determined eligible for medical benefits in
accordance with this section, such benefits shall be provided from the
date of filing, except that such benefits may also include payments for
any unreimbursed medical treatment costs incurred personally by such
miner during the period from January 1, 1974, to the date of filing
which are attributable to medical care required as a result of the
miner's total disability due to pneumoconiosis. No reimbursement for
health insurance premiums, taxes attributable to any public health
insurance coverage, or other deduction or payments made for the purpose
of securing third party liability for medical care costs is authorized
by this section. If a miner seeks reimbursement for medical care costs
personally incurred before the filing of a claim under this section,
the district director shall require
[[Page 3424]]
documented proof of the nature of the medical service provided, the
identity of the medical provider, the cost of the service, and the fact
that the cost was paid by the miner, before reimbursement for such cost
may be awarded.
Sec. 725.703 Physician defined.
The term ``physician'' includes only doctors of medicine (MD) and
osteopathic practitioners within the scope of their practices as
defined by State law. No treatment or medical services performed by any
other practitioner of the healing arts is authorized by this part,
unless such treatment or service is authorized and supervised both by a
physician as defined in this section and the district director.
Sec. 725.704 Notification of right to medical benefits; authorization
of treatment.
(a) Upon notification to a miner of such miner's entitlement to
benefits, the Office shall provide the miner with a list of authorized
treating physicians and medical facilities in the area of the miner's
residence. The miner may select a physician from this list or may
select another physician with approval of the Office. Where emergency
services are necessary and appropriate, authorization by the Office
shall not be required.
(b) The Office may, on its own initiative, or at the request of a
responsible operator, order a change of physicians or facilities, but
only where it has been determined that the change is desirable or
necessary in the best interest of the miner. The miner may change
physicians or facilities subject to the approval of the Office.
(c) If adequate treatment cannot be obtained in the area of the
claimant's residence, the Office may authorize the use of physicians or
medical facilities outside such area as well as reimbursement for
travel expenses and overnight accommodations.
Sec. 725.705 Arrangements for medical care.
(a) Operator liability. If an operator has been determined liable
for the payment of benefits to a miner, the Office shall notify such
operator or insurer of the names, addresses, and telephone numbers of
the authorized providers of medical benefits chosen by an entitled
miner, and shall require the operator or insurer to:
(1) Notify the miner and the providers chosen that such operator
will be responsible for the cost of medical services provided to the
miner on account of the miner's total disability due to pneumoconiosis;
(2) Designate a person or persons with decisionmaking authority
with whom the Office, the miner and authorized providers may
communicate on matters involving medical benefits provided under this
subpart and notify the Office, miner and providers of such designation;
(3) Make arrangements for the direct reimbursement of providers for
their services.
(b) Fund liability. If there is no operator found liable for the
payment of benefits, the Office shall make necessary arrangements to
provide medical care to the miner, notify the miner and medical care
facility selected of the liability of the fund, designate a person or
persons with whom the miner or provider may communicate on matters
relating to medical care, and make arrangements for the direct
reimbursement of the medical provider.
Sec. 725.706 Authorization to provide medical services.
(a) Except as provided in paragraph (b) of this section, medical
services from an authorized provider which are payable under
Sec. 725.701 shall not require prior approval of the Office or the
responsible operator.
(b) Except where emergency treatment is required, prior approval of
the Office or the responsible operator shall be obtained before any
hospitalization or surgery, or before ordering an apparatus for
treatment where the purchase price exceeds $300. A request for approval
of non-emergency hospitalization or surgery shall be acted upon
expeditiously, and approval or disapproval will be given by telephone
if a written response cannot be given within 7 days following the
request. No employee of the Department of Labor, other than a district
director or the Chief, Branch of Medical Analysis and Services, DCMWC,
is authorized to approve a request for hospitalization or surgery by
telephone.
(c) Payment for medical services, treatment, or an apparatus shall
be made at no more than the rate prevailing in the community in which
the providing physician, medical facility or supplier is located.
Sec. 725.707 Reports of physicians and supervision of medical care.
(a) Within 30 days following the first medical or surgical
treatment provided under Sec. 725.701, the treating physician or
facility shall furnish to the Office and the responsible operator, if
any, a report of such treatment.
(b) In order to permit continuing supervision of the medical care
provided to the miner with respect to the necessity, character and
sufficiency of any medical care furnished or to be furnished, the
treating physician, facility, employer or carrier shall provide such
reports in addition to those required by paragraph (a) of this section
as the Office may from time to time require. Within the discretion of
the district director, payment may be refused to any medical provider
who fails to submit any report required by this section.
Sec. 725.708 Disputes concerning medical benefits.
(a) Whenever a dispute develops concerning medical services under
this part, the district director shall attempt to informally resolve
such dispute. In this regard the district director may, on his or her
own initiative or at the request of the responsible operator order the
claimant to submit to an examination by a physician selected by the
district director.
(b) If no informal resolution is accomplished, the district
director shall refer the case to the Office of Administrative Law
Judges for hearing in accordance with this part. Any such hearing shall
be scheduled at the earliest possible time and shall take precedence
over all other requests for hearing except for prior requests for
hearing arising under this section and as provided by Sec. 727.405 of
this subchapter (see Sec. 725.4(d)). During the pendency of such
adjudication, the Director may order the payment of medical benefits
prior to final adjudication under the same conditions applicable to
benefits awarded under Sec. 725.522.
(c) In the development or adjudication of a dispute over medical
benefits, the adjudication officer is authorized to take whatever
action may be necessary to protect the health of a totally disabled
miner.
(d) Any interested medical provider may, if appropriate, be made a
party to a dispute over medical benefits.
Sec. 725.710 Objective of vocational rehabilitation.
The objective of vocational rehabilitation is the return of a miner
who is totally disabled for work in or around a coal mine and who is
unable to utilize those skills which were employed in the miner's coal
mine employment to gainful employment commensurate with such miner's
physical impairment. This objective may be achieved through a program
of re-evaluation and redirection of the miner's abilities, or
retraining in another occupation, and selective job placement
assistance.
[[Page 3425]]
Sec. 725.711 Requests for referral to vocational rehabilitation
assistance.
Each miner who has been determined entitled to receive benefits
under part C of title IV of the Act shall be informed by the OWCP of
the availability and advisability of vocational rehabilitation
services. If such miner chooses to avail himself or herself of
vocational rehabilitation, his or her request shall be processed and
referred by OWCP vocational rehabilitation advisors pursuant to the
provisions of Secs. 702.501 through 702.508 of this chapter as is
appropriate.
5. Part 726 is proposed to be revised as follows:
PART 726--BLACK LUNG BENEFITS; REQUIREMENTS FOR COAL MINE
OPERATOR'S INSURANCE
Subpart A--General
Sec.
726.1 Statutory insurance requirements for coal mine operators.
726.2 Purpose and scope of this part.
726.3 Relationship of this part to other parts in this subchapter.
726.4 Who must obtain insurance coverage.
726.5 Effective date of insurance coverage.
726.6 The Office of Workers' Compensation Programs.
726.7 Forms, submission of information.
726.8 Definitions.
Subpart B--Authorization of Self-Insurers
726.101 Who may be authorized to self-insure.
726.102 Application for authority to become a self-insurer; how
filed; information to be submitted.
726.103 Application for authority to self-insure; effect of
regulations contained in this part.
726.104 Action by the Office upon application of operator.
726.105 Fixing the amount of security.
726.106 Type of security.
726.107 Deposits of negotiable securities with Federal Reserve
banks or the Treasurer of the United States; authority to sell such
securities; interest thereon.
726.108 Withdrawal of negotiable securities.
726.109 Increase or reduction in the amount of security.
726.110 Filing of agreement and undertaking.
726.111 Notice of authorization to self-insure.
726.112 Reports required of self-insurer; examination of accounts
of self-insurer.
726.113 Disclosure of confidential information.
726.114 Period of authorization as self-insurer; reauthorization.
726.115 Revocation of authorization to self-insure.
Subpart C--Insurance Contracts
726.201 Insurance contracts--generally.
726.202 Who may underwrite an operator's liability.
726.203 Federal Coal Mine Health and Safety Act endorsement.
726.204 Statutory policy provisions.
726.205 Other forms of endorsement and policies.
726.206 Terms of policies.
726.207 Discharge by the carrier of obligations and duties of
operator.
Reports by Carrier
726.208 Report by carrier of issuance of policy or endorsement.
726.209 Report; by whom sent.
726.210 Agreement to be bound by report.
726.211 Name of one employer only shall be given in each report.
726.212 Notice of cancellation.
726.213 Reports by carriers concerning the payment of benefits.
Subpart D--Civil Money Penalties
726.300 Purpose and Scope.
726.301 Definitions.
726.302 Determination of penalty.
726.303 Notification; Investigation.
726.304 Notice of initial assessment.
726.305 Contents of notice.
726.306 Finality of administrative assessment.
726.307 Form of notice of contest and request for hearing.
726.308 Service and computation of time.
726.309 Referral to the Office of Administrative Law Judges.
726.310 Appointment of Administrative Law Judge and notification of
hearing date.
726.311 Evidence.
726.312 Burdens of proof.
726.313 Decision and Order of Administrative Law Judge.
726.314 Review by the Secretary.
726.315 Contents.
726.316 Filing and Service.
726.317 Discretionary Review.
726.318 Final decision of the Secretary.
726.319 Retention of official record.
726.320 Collection and recovery of penalty.
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 902(f), 925, 932, 933, 934, 936,
945; 33 U.S.C. 901 et seq., Secretary's Order 7-87, 52 FR 48466,
Employment Standards Order No. 90-02.
Subpart A--General
Sec. 726.1 Statutory insurance requirements for coal mine operators.
Section 423 of title IV of the Federal Coal Mine Health and Safety
Act as amended (hereinafter the Act) requires each coal mine operator
who is operating or has operated a coal mine in a State which is not
included in the list published by the Secretary (see part 722 of this
chapter) to secure the payment of benefits for which he may be found
liable under section 422 of the Act and the provisions of this
subchapter by either:
(a) Qualifying as a self-insurer, or
(b) By subscribing to and maintaining in force a commercial
insurance contract (including a policy or contract procured from a
State agency).
Sec. 726.2 Purpose and scope of this part.
(a) This part provides rules directing and controlling the
circumstances under which a coal mine operator shall fulfill his
insurance obligations under the Act.
(b) This subpart A sets forth the scope and purpose of this part
and generally describes the statutory framework within which this part
is operative.
(c) Subpart B of this part sets forth the criteria a coal mine
operator must meet in order to qualify as a self-insurer.
(d) Subpart C of this part sets forth the rules and regulations of
the Secretary governing contracts of insurance entered into by coal
operators and commercial insurance sources for the payment of black
lung benefits under part C of the Act.
(e) Subpart D of this part sets forth the rules governing the
imposition of civil money penalties on coal mine operators that fail to
secure their liability under the Act.
Sec. 726.3 Relationship of this part to other parts in this
subchapter.
(a) This part 726 implements and effectuates responsibilities for
the payment of black lung benefits placed upon coal operators by
sections 415 and 422 of the Act and the regulations of the Secretary in
this subchapter, particularly those set forth in part 725 of this
subchapter. All definitions, usages, procedures, and other rules
affecting the responsibilities of coal operators prescribed in parts
715, 720, and 725 of this subchapter are hereby made applicable, as
appropriate, to this part 726.
(b) In the event that an apparent conflict arises between the
interpretation of any provision in this part 726 and the interpretation
of some provision appearing in a different part of this chapter, the
conflicting provisions shall be read harmoniously to the fullest extent
possible. In the event that a harmonious interpretation of the
provisions is impossible, the provision or provisions of this part
shall govern insofar as the question is one which arises out of a
dispute over the responsibilities and obligations of coal mine
operators to secure the payment of black lung benefits as prescribed by
the Act. No provision of this part shall be operative as to matters
falling outside the purview of this part.
Sec. 726.4 Who must obtain insurance coverage.
(a) Section 423 of part C of title IV of the Act requires each
operator of a coal mine or former operator in any State
[[Page 3426]]
which does meet the requirements prescribed by the Secretary pursuant
to section 411 of part C of title IV of the Act to self-insure or
obtain a policy or contract of insurance to guarantee the payment of
benefits for which such operator may be adjudicated liable under
section 422 of the Act. In enacting sections 422 and 423 of the Act
Congress has unambiguously expressed its intent that coal mine
operators bear the cost of providing the benefits established by part C
of title IV of the Act. Section 3 of the Act defines an ``operator'' as
any owner, lessee, or other person who operates, controls, or
supervises a coal mine.
(b) Section 422(i) of the Act clearly recognizes that any
individual or business entity who is or was a coal mine operator may be
found liable for the payment of pneumoconiosis benefits after December
31, 1973. Within this framework it is clear that the Secretary has wide
latitude for determining which operator shall be liable for the payment
of part C benefits. Comprehensive standards have been promulgated in
subpart G of part 725 of this subchapter for the purpose of guiding the
Secretary in making such determination. It must be noted that pursuant
to these standards any parent or subsidiary corporation, any individual
or corporate partner, or partnership, any lessee or lessor of a coal
mine, any joint venture or participant in a joint venture, any
transferee or transferor of a corporation or other business entity, any
former, current, or future operator or any other form of business
entity which has had or will have a substantial and reasonably direct
interest in the operation of a coal mine may be determined liable for
the payment of pneumoconiosis benefits after December 31, 1973. The
failure of any such business entity to self-insure or obtain a policy
or contract of insurance shall in no way relieve such business entity
of its obligation to pay pneumoconiosis benefits in respect of any case
in which such business entity's responsibility for such payments has
been properly adjudicated. Any business entity described in this
section shall take appropriate steps to insure that any liability
imposed by part C of the Act on such business entity shall be
dischargeable.
Sec. 726.5 Effective date of insurance coverage.
Pursuant to section 422(c) of part C of title IV of the Act, no
coal mine operator shall be responsible for the payment of any benefits
whatsoever for any period prior to January 1, 1974. However, coal mine
operators shall be liable as of January 1, 1974, for the payment of
benefits in respect of claims which were filed under section 415 of
part B of title IV of the Act after July 1, 1973. Section 415(a)(3)
requires the Secretary to notify any operator who may be liable for the
payment of benefits under part C of title IV beginning on January 1,
1974, of the pendency of a section 415 claim. Section 415(a)(5)
declares that any operator who has been notified of the pendency of a
section 415 claim shall be bound by the determination of the Secretary
as to such operator's liability and as to the claimant's entitlement to
benefits as if the claim were filed under part C of title IV of the Act
and section 422 thereof had been applicable to such operator.
Therefore, even though no benefit payments shall be required of an
operator prior to January 1, 1974, the liability for these payments may
be finally adjudicated at any time after July 1, 1973. Neither the
failure of an operator to exercise his right to participate in the
adjudication of such a claim nor the failure of an operator to obtain
insurance coverage in respect of claims filed after June 30, 1973, but
before January 1, 1974, shall excuse such operator from his liability
for the payment of benefits to such claimants under part C of title IV
of the Act.
Sec. 726.6 The Office of Workers' Compensation Programs.
The Office of Workers' Compensation Programs (hereinafter the
Office or OWCP) is that subdivision of the Employment Standards
Administration of the U.S. Department of Labor which has been empowered
by the Secretary of Labor to carry out his functions under section 415
and part C of title IV of the Act. As noted throughout this part 726
the Office shall perform a number of functions with respect to the
regulation of both the self-insurance and commercial insurance
programs. All correspondence with or submissions to the Office should
be addressed as follows:
Division of Coal Mine Workers' Compensation, Office of Workers'
Compensation Programs, Employment Standards Administration, U.S.
Department of Labor, Washington, D.C. 20210
Sec. 726.7 Forms, submission of information.
Any information required by this part 726 to be submitted to the
Office of Workmen's Compensation Programs or any other office or
official of the Department of Labor, shall be submitted on such forms
or in such manner as the Secretary deems appropriate and has authorized
from time to time for such purposes.
Sec. 726.8 Definitions.
In addition to the definitions provided in part 725 of this
chapter, the following definitions apply to this part:
(a) Director means the Director, Office of Workers' Compensation
Programs, and includes any official of the Office of Workers'
Compensation Programs authorized by the Director to perform any of the
functions of the Director under this part and part 725 of this chapter.
(b) Person includes any individual, partnership, corporation,
association, business trust, legal representative, or organized group
of persons.
(c) Secretary means the Secretary of Labor or such other official
as the Secretary shall designate to carry out any responsibility under
this part.
(d) The terms employ and employment shall be construed as broadly
as possible, and shall include any relationship under which an operator
retains the right to direct, control, or supervise the work performed
by a miner, or any other relationship under which an operator derives a
benefit from the work performed by a miner. Any individuals who
participate with one or more persons in the mining of coal, such as
owners, proprietors, partners, and joint venturers, whether they are
compensated by wages, salaries, piece rates, shares, profits, or by any
other means, shall be deemed employees.
Subpart B--Authorization of Self-Insurers
Sec. 726.101 Who may be authorized to self-insure.
(a) Pursuant to section 423 of part C of title IV of the Act,
authorization to self-insure against liability incurred by coal mine
operators on account of the total disability or death of miners due to
pneumoconiosis may be granted or denied in the discretion of the
Secretary. The provisions of this subpart describe the minimum
requirements established by the Secretary for determining whether any
particular coal mine operator shall be authorized as a self-insurer.
(b) The minimum requirements which must be met by any operator
seeking authorization to self-insure are as follows:
(1) Such operator must, at the time of application, have been in
the business of mining coal for at least the 3 consecutive years prior
to such application; and,
(2) Such operator must demonstrate the administrative capacity to
fully service such claims as may be filed against him; and,
[[Page 3427]]
(3) Such operator's average current assets over the preceding 3
years (in computing average current assets such operator shall not
include the amount of any negotiable securities which he may be
required to deposit to secure his obligations under the Act) must
exceed current liabilities by the sum of--
(i) The estimated aggregate amount of black lung benefits
(including medical benefits) which such operator may expect to be
required to pay during the ensuing year; and,
(ii) The annual premium cost for any indemnity bond purchased; and
(4) Such operator must obtain security, in a form approved by the
Office (see Sec. 726.104) and in an amount to be determined by the
Office (see Sec. 726.105); and
(5) No operator with fewer than 5 full-time employee-miners shall
be permitted to self-insure.
(c) No operator who is unable to meet the requirements of this
section should apply for authorization to self-insure and no
application for self-insurance shall be approved by the Office until
such time as the amount prescribed by the Office has been secured as
prescribed in this subpart.
Sec. 726.102 Application for authority to become a self-insurer; how
filed; information to be submitted.
(a) How filed. Application for authority to become a self-insurer
shall be addressed to the Office and be made on a form provided by the
Office. Such application shall be signed by the applicant over his
typewritten name and if the applicant is not an individual, by the
principal officer of the applicant duly authorized to make such
application over his typewritten name and official designation and
shall be sworn to by him. If the applicant is a corporation, the
corporate seal shall be affixed. The application shall be filed with
the Office in Washington, D.C.
(b) Information to be submitted. Each application for authority to
self-insure shall contain:
(1) A statement of the employer's payroll report for each of the
preceding 3 years;
(2) A statement of the average number of employees engaged in
employment within the purview of the Act for each of the preceding 3
years;
(3) A list of the mine or mines to be covered by any particular
self-insurance agreement. Each such mine or mines listed shall be
described by name and reference shall be made to the Federal
Identification Number assigned such mine by the Bureau of Mines, U.S.
Department of the Interior;
(4) A certified itemized statement of the gross and net assets and
liabilities of the operator for each of the 3 preceding years in such
manner as prescribed by the Office;
(5) A statement demonstrating the applicant's administrative
capacity to provide or procure adequate servicing for a claim including
both medical and dollar claims; and
(6) In addition to the aforementioned, the Office may in its
discretion, require the applicant to submit such further information or
such evidence as the Office may deem necessary to have in order to
enable it to give adequate consideration to such application.
(c) Who may file. An application for authorization to self-insure
may be filed by any parent or subsidiary corporation, partner or
partnership, party to a joint venture or joint venture, individual, or
other business entity which may be determined liable for the payment of
black lung benefits under part C of title IV of the Act, regardless of
whether such applicant is directly engaged in the business of mining
coal. However, in each case for which authorization to self-insure is
granted, the agreement and undertaking filed pursuant to Sec. 726.110
and the security deposit shall be respectively filed by and deposited
in the name of the applicant only.
Sec. 726.103 Application for authority to self-insure; effect of
regulations contained in this part.
As appropriate, each of the regulations, interpretations and
requirements contained in this part 726 including those described in
subpart C of this part shall be binding upon each applicant hereunder
and the applicant's consent to be bound by all requirements of the said
regulations shall be deemed to be included in and a part of the
application, as fully as though written therein.
Sec. 726.104 Action by the Office upon application of operator.
(a) Upon receipt of a completed application for authorization to
self-insure, the Office shall, after examination of the information
contained in the application deny the applicant's request for
authorization to self-insure or, determine the amount of security which
must be given by the applicant to guarantee the payment of benefits and
the discharge of all other obligations which may be required of such
applicant under the Act.
(b) The applicant shall thereafter be notified that he may give
security in the amount fixed by the Office (see Sec. 726.105):
(1) In the form of an indemnity bond with sureties satisfactory to
the Office;
(2) By a deposit of negotiable securities with a Federal Reserve
Bank in compliance with Secs. 726.106(c) and 726.107;
(3) In the form of a letter of credit issued by a financial
institution satisfactory to the Office (except that a letter of credit
shall not be sufficient by itself to satisfy a self-insurer's
obligations under this part); or
(4) By funding a trust pursuant to section 501(c)(21) of title 26
of the United States Code.
(c) Any applicant who cannot meet the security deposit requirements
imposed by the Office should proceed to obtain a commercial policy or
contract of insurance. Any applicant for authorization to self-insure
whose application has been rejected or who believes that the security
deposit requirements imposed by the Office are excessive may, in
writing, request that the Office review its determination. A request
for review should contain such information as may be necessary to
support the request that the amount of security required be reduced.
(d) Upon receipt of any such request the Office shall review its
previous determination in light of any new or additional information
submitted and inform the applicant whether or not a reduction in the
amount of security initially required is warranted.
Sec. 726.105 Fixing the amount of security.
The amount of security to be fixed and required by the Office shall
be such as the Office shall deem to be necessary and sufficient to
secure the performance by the applicant of all obligations imposed upon
him as an operator by the Act. In determining the amount of security
required, the factors that the Office will consider include, but are
not limited to, the operator's net worth, the existence of a guarantee
by a parent corporation, and the operator's existing liability for
benefits. Other factors such as the Office may deem relevant to any
particular case shall be considered. The amount of security which shall
be required may be increased or decreased when experience or changed
conditions so warrant.
Sec. 726.106 Type of security.
(a) The Office shall determine the type or types of security which
an applicant shall or may procure. (See Sec. 726.104(b).)
(b) In the event the indemnity bond option is selected such
indemnity bond shall be in such form and contain such provisions as the
Office may prescribe: Provided, That only corporations may act as
sureties on such indemnity bonds. In each case in which the surety on
any such bond is a surety company, such company must be one approved by
the
[[Page 3428]]
U.S. Treasury Department under the laws of the United States and the
applicable rules and regulations governing bonding companies (see
Department of Treasury's Circular-570).
(c) An applicant for authorization to self-insure authorized to
deposit negotiable securities to secure his obligations under the Act
in the amount fixed by the Office shall deposit any negotiable
securities acceptable as security for the deposit of public moneys of
the United States under regulations issued by the Secretary of the
Treasury. (See 31 CFR part 225.) The approval, valuation, acceptance,
and custody of such securities is hereby committed to the several
Federal Reserve Banks and the Treasurer of the United States.
Sec. 726.107 Deposits of negotiable securities with Federal Reserve
banks or the Treasurer of the United States; authority to sell such
securities; interest thereon.
Deposits of securities provided for by the regulations in this part
shall be made with any Federal Reserve bank or any branch of a Federal
Reserve bank designated by the Office, or the Treasurer of the United
States, and shall be held subject to the order of the Office with power
in the Office, in its discretion in the event of default by the said
self-insurer, to collect the interest as it may become due, to sell the
securities or any of them as may be required to discharge the
obligations of the self-insurer under the Act and to apply the proceeds
to the payment of any benefits or medical expenses for which the self-
insurer may be liable. The Office may, however, whenever it deems it
unnecessary to resort to such securities for the payment of benefits,
authorize the self-insurer to collect interest on the securities
deposited by him.
Sec. 726.108 Withdrawal of negotiable securities.
No withdrawal of negotiable securities deposited by a self-insurer,
shall be made except upon authorization by the Office. A self-insurer
discontinuing business, or discontinuing operations within the purview
of the Act, or providing security for the payment of benefits by
commercial insurance under the provisions of the Act may apply to the
Office for the withdrawal of securities deposited under the regulations
in this part. With such application shall be filed a sworn statement
setting forth:
(a) A list of all outstanding cases in which benefits are being
paid, with the names of the miners and other beneficiaries, giving a
statement of the amounts of benefits paid and the periods for which
such benefits have been paid; and
(b) A similar list of all pending cases in which no benefits have
as yet been paid. In such cases withdrawals may be authorized by the
Office of such securities as in the opinion of the Office may not be
necessary to provide adequate security for the payment of outstanding
and potential liabilities of such self-insurer under the Act.
Sec. 726.109 Increase or reduction in the amount of security.
Whenever in the opinion of the Office the amount of security given
by the self-insurer is insufficient to afford adequate security for the
payment of benefits and medical expenses under the Act, the self-
insurer shall, upon demand by the Office, file such additional security
as the Office may require. At any time upon application of a self-
insurer, or on the initiative of the Office, when in its opinion the
facts warrant, the amount of security may be reduced. A self-insurer
seeking such reduction shall furnish such information as the Office may
request relative to his current affairs, the nature and hazard of the
work of his employees, the amount of the payroll of his employees
engaged in coal mine employment within the purview of the Act, his
financial condition, and such other evidence as may be deemed material,
including a record of payment of benefits made by him.
Sec. 726.110 Filing of agreement and undertaking.
(a) In addition to the requirement that adequate security be
procured as set forth in this subpart, the applicant for the
authorization to self-insure shall as a condition precedent to
receiving authorization to act as a self-insurer, execute and file with
the Office an agreement and undertaking in a form prescribed and
provided by the Office in which the applicant shall agree:
(1) To pay when due, as required by the provisions of said Act, all
benefits payable on account of total disability or death of any of its
employee-miners within the purview of the Act;
(2) In such cases to furnish medical, surgical, hospital, and other
attendance, treatment, and care as required by the provisions of the
Act;
(3) To provide security in a form approved by the Office (see
Sec. 726.104) and in an amount established by the Office (see
Sec. 726.105), accordingly as elected in the application;
(4) To authorize the Office to sell any negotiable securities so
deposited or any part thereof and from the proceeds thereof to pay such
benefits, medical, and other expenses and any accrued penalties imposed
by law as it may find to be due and payable.
(b) At such time when an applicant has provided the requisite
security, such applicant shall send a completed agreement and
undertaking together with satisfactory proof that his obligations and
liabilities under the Act have been secured to the Office in
Washington, D.C.
Sec. 726.111 Notice of authorization to self-insure.
Upon receipt of a completed agreement and undertaking and
satisfactory proof that adequate security has been provided an
applicant for authorization to self-insure shall be notified by the
Office in writing, that he is authorized to self-insure to meet the
obligations imposed upon such applicant by section 415 and part C of
title IV of the Act.
Sec. 726.112 Reports required of self-insurer; examination of accounts
of self-insurer.
(a) Each operator who has been authorized to self-insure under this
part shall submit to the Office reports containing such information as
the Office may from time to time require or prescribe.
(b) Whenever it deems it to be necessary, the Office may inspect or
examine the books of account, records, and other papers of a self-
insurer for the purpose of verifying any financial statement submitted
to the Office by the self-insurer or verifying any information
furnished to the Office in any report required by this section, or any
other section of the regulations in this part, and such self-insurer
shall permit the Office or its duly authorized representative to make
such an inspection or examination as the Office shall require. In lieu
of this requirement the Office may in its discretion accept an adequate
report of a certified public accountant.
(c) Failure to submit or make available any report or information
requested by the Office from an authorized self-insurer pursuant to
this section may, in appropriate circumstances result in a revocation
of the authorization to self-insure.
Sec. 726.113 Disclosure of confidential information.
Any financial information or records, or other information relating
to the business of an authorized self-insurer or applicant for the
authorization of self-insurance obtained by the Office shall be exempt
from public disclosure to the extent provided in 5 U.S.C. 552(b) and
the applicable regulations of the
[[Page 3429]]
Department of Labor promulgated thereunder. (See 29 CFR part 70.)
Sec. 726.114 Period of authorization as self-insurer; reauthorization.
(a) No initial authorization as a self-insurer shall be granted for
a period in excess of 18 months. A self-insurer who has made an
adequate deposit of negotiable securities in compliance with
Secs. 726.106(c) and 726.107 will be reauthorized for the ensuing
fiscal year without additional security if the Office finds that his
experience as a self-insurer warrants such action. If it is determined
that such self-insurer's experience indicates a need for the deposit of
additional security, no reauthorization shall be issued for the ensuing
fiscal year until such time as the Office receives satisfactory proof
that the requisite amount of additional securities have been deposited.
A self-insurer who currently has on file an indemnity bond, will
receive from the Office each year a bond form for execution in
contemplation of reauthorization, and the submission of such bond duly
executed in the amount indicated by the Office will be deemed and
treated as such self-insurer's application for reauthorization for the
ensuing Federal fiscal year.
(b) In each case for which there is an approved change in the
amount of security provided, a new agreement and undertaking shall be
executed.
(c) Each operator authorized to self-insure under this part shall
apply for reauthorization for any period during which it engages in the
operation of a coal mine and for additional periods after it ceases
operating a coal mine. Upon application by the operator, accompanied by
proof that the security posted by the operator is sufficient to secure
all benefits potentially payable to miners formerly employed by the
operator, the Office shall issue a certification that the operator is
exempt from the requirements of this part based on its prior operation
of a coal mine. The provisions of subpart D of this part shall be
applicable to any operator that fails to apply for reauthorization in
accordance with the provisions of this section.
Sec. 726.115 Revocation of authorization to self-insure.
The Office may for good cause shown suspend or revoke the
authorization of any self-insurer. Failure by a self-insurer to comply
with any provision or requirement of law or of the regulations in this
part, or with any lawful order or communication of the Office, or the
failure or insolvency of the surety on his indemnity bond, or
impairment of financial responsibility of such self-insurer, may be
deemed good cause for such suspension or revocation.
Subpart C--Insurance Contracts
Sec. 726.201 Insurance contracts--generally.
Each operator of a coal mine who has not obtained authorization as
a self-insurer shall purchase a policy or enter into a contract with a
commercial insurance carrier or State agency. Pursuant to authority
contained in sections 422(a) and 423 (b) and (c) of part C of title IV
of the Act, this subpart describes a number of provisions which are
required to be incorporated in a policy or contract of insurance
obtained by a coal mine operator for the purpose of meeting the
responsibility imposed upon such operator by the Act in respect of the
total disability or death of miners due to pneumoconiosis.
Sec. 726.202 Who may underwrite an operator's liability.
Each coal mine operator who is not authorized to self-insure shall
insure and keep insured the payment of benefits as required by the Act
with any stock company or mutual company or association, or with any
other person, or fund, including any State fund while such company,
association, person, or fund is authorized under the law of any State
to insure workmen's compensation.
Sec. 726.203 Federal Coal Mine Health and Safety Act endorsement.
(a) The following form of endorsement shall be attached and
applicable to the standard workmen's compensation and employer's
liability policy prepared by the National Council on Compensation
Insurance affording coverage under the Federal Coal Mine Health and
Safety Act of 1969, as amended:
It is agreed that: (1) With respect to operations in a State
designated in item 3 of the declarations, the unqualified term
``workmen's compensation law'' includes part C of title IV of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. section
931-936, and any laws amendatory thereto, or supplementary thereto,
which may be or become effective while this policy is in force, and
definition (a) of Insuring Agreement III is amended accordingly; (2)
with respect to such insurance as is afforded by this endorsement,
(a) the States, if any, named below, shall be deemed to be
designated in item 3 of the declaration; (b) Insuring Agreement
IV(2) is amended to read ``by disease caused or aggravated by
exposure of which the last day of the last exposure, in the
employment of the insured, to conditions causing the disease occurs
during the policy period, or occurred prior to (effective date) and
claim based on such disease is first filed against the insured
during the policy period.''
(b) The term ``effective date'' as used in the enforcement
provisions contained in paragraph (a) of this section shall be
construed to mean the effective date of the first policy or contract of
insurance procured by an operator for purposes of meeting the
obligations imposed on such operator by section 423 of part C of title
IV of the Act.
(c) The Act contains a number of provisions and imposes a number of
requirements on operators which differ in varying degrees from
traditional workmen's compensation concepts. To avoid unnecessary
administrative delays and expense which might be occasioned by the
drafting of an entirely new standard workmen's compensation policy
specially tailored to the Act, the Office has determined that the
existing standard workmen's compensation policy subject to the
endorsement provisions contained in paragraph (a) of this section shall
be acceptable for purposes of writing commercial insurance coverage
under the Act. However, to avoid undue disputes over the meaning of
certain policy provisions and in accordance with the authority
contained in section 423(b)(3) of the Act, the Office has determined
that the following requirements shall be applicable to all commercial
insurance policies obtained by an operator for the purpose of insuring
any liability incurred pursuant to the Act:
(1) Operator liability. (i) Section 415 and part C of title IV of
the Act provide coverage for total disability or death due to
pneumoconiosis to all claimants who meet the eligibility requirements
imposed by the Act. Section 422 of the Act and the regulations duly
promulgated thereunder (part 725 of this chapter) set forth the
conditions under which a coal mine operator may be adjudicated liable
for the payment of benefits to an eligible claimant for any period
subsequent to December 31, 1973.
(ii) Section 422(c) of the Act prescribes that except as provided
in 422(i) (see paragraph (c)(2) of this section) an operator may be
adjudicated liable for the payment of benefits in any case if the total
disability or death due to pneumoconiosis upon which the claim is
predicated arose at least in part out of employment in a mine in any
period during which it was operated by such operator. The Act does not
require that such employment which contributed to or caused the total
disability or death due to pneumoconiosis occur subsequent to
[[Page 3430]]
any particular date in time. The Secretary in establishing a formula
for determining the operator liable for the payment of benefits (see
subpart D of part 725 of this chapter) in respect of any particular
claim, must therefore, within the framework and intent of title IV of
the Act find in appropriate cases that an operator is liable for the
payment of benefits for some period after December 31, 1973, even
though the employment upon which an operator's liability is based
occurred prior to July 1, 1973, or prior to the effective date of the
Act or the effective date of any amendments thereto, or prior to the
effective date of any policy or contract of insurance obtained by such
operator. The enforcement provisions contained in paragraph (a) of this
section shall be construed to incorporate these requirements in any
policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act.
(2) Successor liability. Section 422(i) of part C of title IV of
the Act requires that a coal mine operator who after December 30, 1969,
acquired his mine or substantially all of the assets thereof from a
person who was an operator of such mine on or after December 30, 1969,
shall be liable for and shall secure the payment of benefits which
would have been payable by the prior operator with respect to miners
previously employed in such mine if the acquisition had not occurred
and the prior operator had continued to operate such mine. In the case
of an operator who is determined liable for the payment of benefits
under section 422(i) of the Act and part 725 of this subchapter, such
liability shall accrue to such operator regardless of the fact that the
miner on whose total disability or death the claim is predicated was
never employed by such operator in any capacity. The enforcement
provisions contained in paragraph (a) of this section shall be
construed to incorporate this requirement in any policy or contract of
insurance obtained by an operator to meet the obligations imposed on
such operator by section 423 of the Act.
(3) Medical eligibility. Pursuant to section 422(h) of part C of
title IV of the Act and the regulations described therein (see subpart
D of part 410 of this title) benefits shall be paid to eligible
claimants on account of total disability or death due to pneumoconiosis
and in cases where the miner on whose death a claim is predicated was
totally disabled by pneumoconiosis at the time of his death regardless
of the cause of such death. The enforcement provisions contained in
paragraph (a) of this section shall be construed to incorporate these
requirements in any policy or contract of insurance obtained by an
operator to meet the obligations imposed on such operator by section
423 of the Act.
(4) Payment of benefits, rates. Section 422(c) of the Act by
incorporating section 412(a) of the Act requires the payment of
benefits at a rate equal to 50 per centum of the minimum monthly
payment to which a Federal employee in grade GS-2, who is totally
disabled is entitled at the time of payment under Chapter 81 of title
5, United States Code. These benefits are augmented on account of
eligible dependents as appropriate (see section 412(a) of part B of
title IV of the Act). Since the dollar amount of benefits payable to
any beneficiary is required to be computed at the time of payment such
amounts may be expected to increase from time to time as changes in the
GS-2 grade are enacted into law. The enforcement provisions contained
in paragraph (a) of this section shall be construed to incorporate in
any policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act, the
requirement that the payment of benefits to eligible beneficiaries
shall be made in such dollar amounts as are prescribed by section
412(a) of the Act computed at the time of payment.
(5) Compromise and waiver of benefits. Section 422(a) of part C of
title IV of the Act by incorporating sections 15(b) and 16 of the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 915(b)
and 916) prohibits the compromise and/or waiver of claims for benefits
filed or benefits payable under section 415 and part C of title IV of
the Act. The enforcement provisions contained in paragraph (a) of this
section shall be construed to incorporate these prohibitions in any
policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act.
(6) Additional requirements. In addition to the requirements
described in paragraphs (c) (1) through (5) of this section, the
enforcement provisions contained in paragraph (a) of this section
shall, to the fullest extent possible, be construed to bring any policy
or contract of insurance entered into by an operator for the purpose of
insuring such operator's liability under part C of title IV of the Act
into conformity with the legal requirements placed upon such operator
by section 415 and part C of title IV of the Act and parts 720 and 725
of this subchapter.
(d) Nothing in this section shall relieve any operator or carrier
of the duty to comply with any State workmen's compensation law, except
insofar as such State law is in conflict with the provisions of this
section.
Sec. 726.204 Statutory policy provisions.
Pursuant to section 423(b) of part C of title IV of the Act each
policy or contract of insurance obtained to comply with the
requirements of section 423(a) of the Act must contain or shall be
construed to contain--
(a) A provision to pay benefits required under section 422 of the
Act, notwithstanding the provisions of the State workmen's compensation
law which may provide for lesser payments; and,
(b) A provision that insolvency or bankruptcy of the operator or
discharge therein (or both) shall not relieve the carrier from
liability for such payments.
Sec. 726.205 Other forms of endorsement and policies.
Forms of endorsement or policies other than that described in
Sec. 726.203 may be entered into by operators to insure their liability
under the Act. However, any form of endorsement or policy which
materially alters or attempts to materially alter an operator's
liability for the payment of any benefits under the Act shall be deemed
insufficient to discharge such operator's duties and responsibilities
as prescribed in part C of title IV of the Act. In any event, the
failure of an operator to obtain an adequate policy or contract of
insurance shall not affect such operator's liability for the payment of
any benefits for which he is determined liable.
Sec. 726.206 Terms of policies.
A policy or contract of insurance shall be issued for the term of 1
year from the date that it becomes effective, but if such insurance be
not needed except for a particular contract or operation, the term of
the policy may be limited to the period of such contract or operation.
Sec. 726.207 Discharge by the carrier of obligations and duties of
operator.
Every obligation and duty in respect of payment of benefits, the
providing of medical and other treatment and care, the payment or
furnishing of any other benefit required by the Act and in respect of
the carrying out of the administrative procedure required or imposed by
the Act or the regulations in this part or 20 CFR part 725 upon an
operator shall be discharged and carried out by the carrier as
appropriate. Notice to or knowledge of an operator of the occurrence of
total disability or death
[[Page 3431]]
due to pneumoconiosis shall be notice to or knowledge of such carrier.
Jurisdiction of the operator by a district director, administrative law
judge, the Office, or appropriate appellate authority under the Act
shall be jurisdiction of such carrier. Any requirement under any
benefits order, finding, or decision shall be binding upon such carrier
in the same manner and to the same extent as upon the operator.
Reports by Carrier
Sec. 726.208 Report by carrier of issuance of policy or endorsement.
Each carrier shall report to the Office each policy and endorsement
issued, canceled, or renewed by it to an operator. The report shall be
made in such manner and on such form as the Office may require.
(Approved by the Office of Management and Budget under control
number 1215-0059)
(Pub. L. No. 96-511)
Sec. 726.209 Report; by whom sent.
The report of issuance, cancellation, or renewal of a policy and
endorsement provided for in Sec. 726.208 shall be sent by the home
office of the carrier, except that any carrier may authorize its agency
or agencies to make such reports to the Office.
(Approved by the Office of Management and Budget under control
number 1215-0059)
(Pub. L. No. 96-511)
Sec. 726.210 Agreement to be bound by report.
Every carrier seeking to write insurance under the provisions of
this Act shall be deemed to have agreed that the acceptance by the
Office of a report of the issuance or renewal of a policy of insurance,
as provided for by Sec. 726.208 shall bind the carrier to full
liability for the obligations under this Act of the operator named in
said report. It shall be no defense to this agreement that the carrier
failed or delayed to issue, cancel, or renew the policy to the operator
covered by this report.
(Approved by the Office of Management and Budget under control
number 1215-0059)
(Pub. L. No. 96-511)
Sec. 726.211 Name of one employer only shall be given in each report.
A separate report of the issuance or renewal of a policy and
endorsement, provided for by Sec. 726.208, shall be made for each
operator covered by a policy. If a policy is issued or renewed insuring
more than one operator, a separate report for each operator so covered
shall be sent to the Office with the name of only one operator on each
such report.
(Approved by the Office of Management and Budget under control
number 1215-0059)
(Pub. L. No. 96-511)
Sec. 726.212 Notice of cancellation.
Cancellation of a contract or policy of insurance issued under
authority of the Act shall not become effective otherwise than as
provided by 33 U.S.C. 936(b); and notice of a proposed cancellation
shall be given to the Office and to the operator in accordance with the
provisions of 33 U.S.C. 912(c), 30 days before such cancellation is
intended to be effective (see sec. 422(a) of part C of title IV of the
Act).
(Approved by the Office of Management and Budget under control
number 1215-0059)
(Pub. L. No. 96-511)
Sec. 726.213 Reports by carriers concerning the payment of benefits.
Pursuant to 33 U.S.C. 914(c) as incorporated by section 422(a) of
part C of title IV of the Act and Sec. 726.207 each carrier issuing a
policy or contract of insurance under the Act shall upon making the
first payment of benefits and upon the suspension of any payment in any
case, immediately notify the Office in accordance with a form
prescribed by the Office that payment of benefit has begun or has been
suspended as the case may be. In addition, each such carrier shall at
the request of the Office submit to the Office such additional
information concerning policies or contracts of insurance issued to
guarantee the payment of benefits under the Act and any benefits paid
thereunder, as the Office may from time to time require to carry out
its responsibilities under the Act.
(Approved by the Office of Management and Budget under control
number 1215-0059)
(Pub. L. No. 96-511)
Subpart D--Civil Money Penalties
Sec. 726.300 Purpose and Scope.
Any operator which is required to secure the payment of benefits
under section 423 of the Act and Sec. 726.4 and which fails to secure
such benefits shall be subject to a civil penalty of not more than
$1,000 for each day during which such failure occurs. If the operator
is a corporation, the president, secretary, and treasurer of the
operator shall also be severally liable for the penalty based on the
operator's failure to secure the payment of benefits. This subpart
defines those terms necessary for administration of the civil money
penalty provisions, describes the criteria for determining the amount
of penalty to be assessed, and sets forth applicable procedures for the
assessment and contest of penalties.
Sec. 726.301 Definitions.
In addition to the definitions provided in part 725 of this chapter
and Sec. 726.8, the following definitions apply to this subpart:
(a) Division Director means the Director, Division of Coal Mine
Workers' Compensation, Office of Workers' Compensation Programs,
Employment Standards Administration, or such other official authorized
by the Division Director to perform any of the functions of the
Division Director under this subpart.
(b) President, secretary, or treasurer means the officers of a
corporation as designated pursuant to the laws and regulations of the
state in which the corporation is incorporated or, if that state does
not require the designation of such officers, to the employees of a
company who are performing the work usually performed by such officers
in the state in which the corporation's principal place of business is
located.
(c) Principal means any person who has an ownership interest in an
operator that is not a corporation, and shall include, but is not
limited to, partners, sole proprietors, and any other person who
exercises control over the operation of a coal mine.
Sec. 726.302 Determination of penalty.
(a) The following method shall be used for determining the amount
of any penalty assessed under this subpart.
(b) The penalty shall be determined by multiplying the daily base
penalty amount or amounts, determined in accordance with the formula
set forth in this section, by the number of days in the period during
which the operator is subject to the security requirements of section
423 of the Act and Sec. 726.4, and fails to secure its obligations
under the Act. The period during which an operator is subject to
liability for a penalty for failure to secure its obligations shall be
deemed to commence on the first day on which the operator met the
definition of the term ``operator'' as set forth in Sec. 725.101 of
this chapter. The period shall be deemed to continue even where the
operator has ceased coal mining and any related activity, unless the
operator secured its liability for all previous periods through a
policy or policies of insurance obtained in accordance with subpart C
of this part or has obtained a certification of exemption in accordance
with the provisions of Sec. 726.114.
(c)(1) A daily base penalty amount shall be determined for all
periods up to and including the 10th day after the operator's receipt
of the notification sent by the Director pursuant to Sec. 726.303,
during which the operator failed to
[[Page 3432]]
secure its obligations under section 423 of the Act and Sec. 726.4.
(2)(i) The daily base penalty amount shall be determined based on
the number of persons employed in coal mine employment by the operator,
or engaged in coal mine employment on behalf of the operator, on each
day of the period defined by this section, and shall be computed as
follows:
------------------------------------------------------------------------
Penalty
Employees (per day)
------------------------------------------------------------------------
Less than 25............................................... $100
25-50...................................................... 200
51-100..................................................... 300
More than 100.............................................. 400
------------------------------------------------------------------------
(ii) For any period after the operator has ceased coal mining and
any related activity, the daily penalty amount shall be computed based
on the largest number of persons employed in coal mine employment by
the operator, or engaged in coal mine employment on behalf of the
operator, on any day while the operator was engaged in coal mining or
any related activity. For purposes of this section, it shall be
presumed, in the absence of evidence to the contrary, that any person
employed by an operator is employed in coal mine employment.
(3) In any case in which the operator had prior notice of the
applicability of the Black Lung Benefits Act to its operations, the
daily base penalty amounts set forth in paragraph (b) shall be doubled.
Prior notice may be inferred where the operator, or an entity in which
the operator or any of its principals had an ownership interest, or an
entity in which the operator's president, secretary, or treasurer were
employed:
(i) Previously complied with section 423 of the Act and Sec. 726.4;
(ii) Was notified of its obligation to comply with section 423 of
the Act and Sec. 726.4; or
(iii) Was notified of its potential liability for a claim filed
under the Black Lung Benefits Act pursuant to Sec. 725.407 of this
chapter.
(4) Commencing with the 11th day after the operator's receipt of
the notification sent by the Director pursuant to Sec. 726.303, the
daily base penalty amounts set forth in paragraph (b) shall be
increased by $100.
(5) In any case in which the operator, or any of its principals, or
an entity in which the operator's president, secretary, or treasurer
were employed, has been the subject of a previous penalty assessment
under this part, the daily base penalty amounts shall be increased by
$300, up to a maximum daily base penalty amount of $1,000. The maximum
daily base penalty amount applicable to any violation of Sec. 726.4
that takes place after [effective date of the final rule] shall be
$1,100.
(d) The penalty shall be subject to reduction for any period during
which the operator had a reasonable belief that it was not required to
comply with section 423 of the Act and Sec. 726.4 or a reasonable
belief that it had obtained insurance coverage to comply with section
423 of the Act and Sec. 726.4. A notice of contest filed in accordance
with Sec. 726.307 shall not be sufficient to establish a reasonable
belief that the operator was not required to comply with the Act and
regulations.
Sec. 726.303 Notification; investigation.
(a) If the Director determines that an operator has violated the
provisions of section 423 of the Act and Sec. 726.4, he or she shall
notify the operator of its violation and request that the operator
immediately secure the payment of benefits. Such notice shall be sent
by certified mail.
(b) The Director shall also direct the operator to supply
information relevant to the assessment of a penalty. Such information,
which shall be supplied within 30 days of the Director's request, may
include:
(1) The date on which the operator commenced its operation of a
coal mine;
(2) The number of persons employed by the operator since it began
operating a coal mine and the dates of their employment; and
(3) The identity and last known address:
(i) In the case of a corporation, of all persons who served as
president, secretary, and treasurer of the operator since it began
operating a coal mine; or
(ii) In the case of an operator which is not incorporated, of all
persons who were principals of the operator since it began operating a
coal mine;
(c) In conducting any investigation of an operator under this
subpart, the Division Director shall have all of the powers of a
district director, as set forth at Sec. 725.351(a) of this chapter. For
purposes of Sec. 725.351(c) of this chapter, the Division Director
shall be considered to sit in the District of Columbia.
Sec. 726.304 Notice of initial assessment.
(a) After an operator receives notification under Sec. 726.303 and
fails to secure its obligations for the period defined in
Sec. 726.302(b), and following the completion of any investigation, the
Director may issue a notice of initial penalty assessment in accordance
with the criteria set forth in Sec. 726.302.
(b)(1) A copy of such notice shall be sent by certified mail to the
operator. If the operator is a corporation, a copy shall also be sent
by certified mail to each of the persons who served as president,
secretary, or treasurer of the operator during any period in which the
operator was in violation of section 423 of the Act and Sec. 726.4.
(2) Where service by certified mail is not accepted by any person,
the notice shall be deemed received by that person on the date of
attempted delivery. Where service is not accepted, the Director may
exercise discretion to serve the notice by regular mail.
Sec. 726.305 Contents of notice.
The notice required by Sec. 726.304 shall:
(a) Identify the operator against whom the penalty is assessed as
well as the name of any other person severally liable for such penalty;
(b) Set forth the determination of the Director as to the amount of
the penalty and the reason or reasons therefor;
(c) Set forth the right of each person identified in paragraph (a)
of this section to contest the notice and request a hearing before the
Office of Administrative Law Judges;
(d) Set forth the method for each person identified in paragraph
(a) to contest the notice and request a hearing before the Office of
Administrative Law Judges; and
(e) Inform any affected person that in the absence of a timely
contest and request for hearing received within 30 days of the date of
receipt of the notice, the Director's assessment will become final and
unappealable as to that person.
Sec. 726.306 Finality of administrative assessment.
Except as provided in Sec. 726.307(c), if any person identified as
potentially liable for the assessment does not, within 30 days after
receipt of notice, contest the assessment, the Director's assessment
shall be deemed final as to that person, and collection and recovery of
the penalty may be instituted pursuant to Sec. 726.320.
Sec. 726.307 Form of notice of contest and request for hearing.
(a) Any person desiring to contest the Director's notice of initial
assessment shall request an administrative hearing pursuant to this
part. The notice of contest shall be made in writing to the Director,
Division of Coal Mine Workers' Compensation, Office of Workers'
Compensation Programs, Employment Standards Administration, United
States Department of Labor. The notice of contest must be received no
later than 30 days after the date of receipt of the notice issued under
[[Page 3433]]
Sec. 726.304. No additional time shall be added where service of the
notice is made by mail.
(b) The notice of contest shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) State the specific issues to be contested. In particular, the
person must indicate his agreement or disagreement with:
(i) The Director's determination that the person against whom the
penalty is assessed is an operator subject to the requirements of
section 423 of the Act and Sec. 726.4, or is the president, secretary,
or treasurer of an operator, if the operator is a corporation.
(ii) The Director's determination that the operator violated
section 423 of the Act and Sec. 726.4 for the time period in question;
and
(iii) The Director's determination of the amount of penalty owed.
(4) Be signed by the person making the request or an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) A notice of contest filed by the operator shall be deemed a
notice of contest on behalf of all other persons to the Director's
determinations that the operator is subject to section 423 of the Act
and Sec. 726.4 and that the operator violated those provisions for the
time period in question, and to the Director's determination of the
amount of penalty owed. An operator may not contest the Director's
determination that a person against whom the penalty is assessed is the
president, secretary, or treasurer of the operator.
(d) Failure to specifically identify an issue as contested pursuant
to paragraph (b)(3) of this section shall be deemed a waiver of the
right to contest that issue.
Sec. 726.308 Service and computation of time.
(a) Service of documents under this part shall be made by delivery
to the person, an officer of a corporation, or attorney of record, or
by mailing the document to the last known address of the person,
officer, or attorney. If service is made by mail, it shall be
considered complete upon mailing. Unless otherwise provided in this
subpart, service need not be made by certified mail. If service is made
by delivery, it shall be considered complete upon actual receipt by the
person, officer, or attorney; upon leaving it at the person's,
officer's or attorney's office with a clerk or person in charge; upon
leaving it at a conspicuous place in the office if no one is in charge;
or by leaving it at the person's or attorney's residence.
(b) If a complaint has been filed pursuant to Sec. 726.309 of this
part, two copies of all documents filed in any administrative
proceeding under this subpart shall be served on the attorneys for the
Department of Labor. One copy shall be served on the Associate
Solicitor, Black Lung Benefits Division, Room N-2605, Office of the
Solicitor, U.S. Department of Labor, 200 Constitution Ave., N.W.,
Washington, DC 20210, and one copy on the attorney representing the
Department in the proceeding.
(c) The time allowed a party to file any response under this
subpart shall be computed beginning with the day following the action
requiring a response, and shall include the last day of the period,
unless it is a Saturday, Sunday, or federally-observed holiday, in
which case the time period shall include the next business day.
Sec. 726.309 Referral to the Office of Administrative Law Judges.
(a) Upon receipt of a timely notice of contest filed in accordance
with Sec. 726.307, the Director, by the Associate Solicitor for Black
Lung Benefits or the Regional Solicitor for the Region in which the
violation occurred, may file a complaint with the Office of
Administrative Law Judges. The Director may, in the complaint, reduce
the total penalty amount requested. A copy of the notice of initial
assessment issued by the Director and all notices of contest filed in
accordance with Sec. 726.307 shall be attached. A notice of contest
shall be given the effect of an answer to the complaint for purposes of
the administrative proceeding, subject to any amendment that may be
permitted under this subpart and 29 CFR part 18.
(b) A copy of the complaint and attachments thereto shall be served
by counsel for the Director on the person who filed the notice of
contest.
(c) The Director, by counsel, may withdraw a complaint filed under
this section at any time prior to the date upon which the decision of
the Department becomes final by filing a motion with the Office of
Administrative Law Judges or the Secretary, as appropriate. If the
Director makes such a motion prior to the date on which an
administrative law judge renders a decision in accordance Sec. 726.313,
the dismissal shall be without prejudice to further assessment against
the operator for the period in question.
Sec. 726.310 Appointment of Administrative Law Judge and notification
of hearing date.
Upon receipt from the Director of a complaint filed pursuant to
Sec. 726.309, the Chief Administrative Law Judge shall appoint an
Administrative Law Judge to hear the case. The Administrative Law Judge
shall notify all interested parties of the time and place of the
hearing.
Sec. 726.311 Evidence.
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges established by the Secretary at 29
CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) Notwithstanding 29 CFR 18.1101(b)(2), subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges shall apply to administrative proceedings
under this part, except that documents contained in Department of Labor
files and offered on behalf of the Director shall be admissible in
proceedings under this subpart without regard to their compliance with
the Rules of Practice and Procedure.
Sec. 726.312 Burdens of proof.
(a) The Director shall bear the burden of proving the existence of
a violation, and the time period for which the violation occurred. To
prove a violation, the Director must establish:
(1) That the person against whom the penalty is assessed is an
operator, or is the president, secretary, or treasurer of an operator,
if such operator is a corporation.
(2) That the operator violated section 423 of the Act and
Sec. 726.4. The filing of a complaint shall be considered prima facie
evidence that the Director has searched the records maintained by OWCP
and has determined that the operator was not authorized to self-insure
its liability under the Act for the time period in question, and that
no insurance carrier reported coverage of the operator for the time
period in question.
(b) The Director need not produce further evidence in support of
his burden of proof with respect to the issues set forth in paragraph
(a) if no party contested them pursuant to Sec. 726.307(b)(3).
(c) The Director shall bear the burden of proving the size of the
operator as required by Sec. 726.302, except that if the Director has
requested the operator to supply information with respect to its size
under Sec. 726.303 and the operator has not fully complied with that
request, it shall be presumed that the
[[Page 3434]]
operator has more than 100 employees engaged in coal mine employment.
The person or persons liable for the assessment shall thereafter bear
the burden of proving the actual number of employees engaged in coal
mine employment.
(d) The Director shall bear the burden of proving the operator's
receipt of the notification required by Sec. 726.303, the operator's
prior notice of the applicability of the Black Lung Benefits Act to its
operations, and the existence of any previous assessment against the
operator, the operator's principals, or the operator's officers.
(e) The person or persons liable for an assessment shall bear the
burden of proving the applicability of the mitigating factors listed in
Sec. 726.302(d).
Sec. 726.313 Decision and Order of Administrative Law Judge.
(a) The Administrative Law Judge shall render a decision on the
issues referred by the Director.
(b) The decision of the Administrative Law Judge shall be limited
to determining, where such issues are properly before him or her:
(1) Whether the operator has violated section 423 of the Act and
Sec. 726.4;
(2) Whether other persons identified by the Director as potentially
severally liable for the penalty were the president, treasurer, or
secretary of the corporation during the time period in question; and
(3) The appropriateness of the penalty assessed by the Director in
light of the factors set forth in Sec. 726.302. The Administrative Law
Judge shall not render determinations on the legality of a regulatory
provision or the constitutionality of a statutory provision.
(c) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and bases therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, reverse, or modify,
in whole or in part, the determination of the Director.
(d) The Administrative Law Judge shall serve copies of the decision
on each of the parties by certified mail.
(e) The decision of the Administrative Law Judge shall be deemed to
have been issued on the date that it is rendered, and shall constitute
the final order of the Secretary unless there is a request for
reconsideration by the Administrative Law Judge pursuant to paragraph
(f) or a petition for review filed pursuant to Sec. 726.314.
(f) Any party may request that the Administrative Law Judge
reconsider his or her decision by filing a motion within 30 days of the
date upon which the decision of the Administrative Law Judge is issued.
A timely motion for reconsideration will suspend the running of the
time for any party to file a petition for review pursuant to
Sec. 726.314.
(g) Following issuance of the decision and order, the Chief
Administrative Law Judge shall promptly forward the complete hearing
record to the Director.
Sec. 726.314 Review by the Secretary.
(a) The Director or any party aggrieved by a decision of the
Administrative Law Judge may petition the Secretary for review of the
decision by filing a petition within 30 days of the date on which the
decision was issued. Any other party may file a cross-petition for
review within 15 days of its receipt of a petition for review or within
30 days of the date on which the decision was issued, whichever is
later. Copies of any petition or cross-petition shall be served on all
parties and on the Chief Administrative Law Judge.
(b) A petition filed by one party shall not affect the finality of
the decision with respect to other parties.
(c) If any party files a timely motion for reconsideration, any
petition for review, whether filed prior to or subsequent to the filing
of the timely motion for reconsideration, shall be dismissed without
prejudice as premature. The 30-day time limit for filing a petition for
review by any party shall commence upon issuance of a decision on
reconsideration.
Sec. 726.315 Contents.
Any petition or cross-petition for review shall:
(a) Be dated;
(b) Be typewritten or legibly written;
(c) State the specific reason or reasons why the party petitioning
for review believes the Administrative Law Judge's decision is in
error;
(d) Be signed by the party filing the petition or an authorized
representative of such party; and
(e) Attach copies of the Administrative Law Judge's decision and
any other documents admitted into the record by the Administrative Law
Judge which would assist the Secretary in determining whether review is
warranted.
Sec. 726.316 Filing and Service.
(a) Filing. All documents submitted to the Secretary shall be filed
with the Secretary of Labor, U.S. Department of Labor, 200 Constitution
Ave., N.W., Washington, DC 20210.
(b) Number of copies. An original and four copies of all documents
shall be filed.
(c) Computation of time for delivery by mail. Documents are not
deemed filed with the Secretary until actually received by the
Secretary either on or before the due date. No additional time shall be
added where service of a document requiring action within a prescribed
time was made by mail.
(d) Manner and proof of service. A copy of each document filed with
the Secretary shall be served upon all other parties involved in the
proceeding. Service under this section shall be by personal delivery or
by mail. Service by mail is deemed effected at the time of mailing to
the last known address.
Sec. 726.317 Discretionary Review.
(a) Following receipt of a timely petition for review, the
Secretary shall determine whether the decision warrants review, and
shall send a notice of such determination to the parties and the Chief
Administrative Law Judge. If the Secretary declines to review the
decision, the Administrative Law Judge's decision shall be considered
the final decision of the agency. The Secretary's determination to
review a decision by an Administrative Law Judge under this subpart is
solely within the discretion of the Secretary.
(b) The Secretary's notice shall specify:
(1) The issue or issues to be reviewed; and
(2) The schedule for submitting arguments, in the form of briefs or
such other pleadings as the Secretary deems appropriate.
(c) Upon receipt of the Secretary's notice, the Director shall
forward the record to the Secretary.
Sec. 726.318 Final decision of the Secretary.
The Secretary's review shall be based upon the hearing record. The
findings of fact in the decision under review shall be conclusive if
supported by substantial evidence in the record as a whole. The
Secretary's review of conclusions of law shall be de novo. Upon review
of the decision, the Secretary may affirm, reverse, modify, or vacate
the decision, and may remand the case to the Office of Administrative
Law Judges for further proceedings. The Secretary's final decision
shall be served upon all parties and the Chief Administrative Law
Judge, in person or by mail to the last known address.
Sec. 726.319 Retention of official record.
The official record of every completed administrative hearing held
pursuant to this part shall be maintained and filed under the custody
and control of the Director.
[[Page 3435]]
Sec. 726.320 Collection and recovery of penalty.
(a) When the determination of the amount of any civil money penalty
provided for in this part becomes final, in accordance with the
administrative assessment thereof, or pursuant to the decision and
order of an Administrative Law Judge in an administrative proceeding as
provided in, or following the decision of the Secretary, the amount of
the penalty as thus determined is immediately due and payable to the
U.S. Department of Labor on behalf of the Black Lung Disability Trust
Fund. The person against whom such penalty has been assessed or imposed
shall promptly remit the amount thereof, as finally determined, to the
Secretary by certified check or by money order, made payable to the
order of U.S. Department of Labor, Black Lung Program. Such remittance
shall be delivered or mailed to the Director.
(b) If such remittance is not received within 30 days after it
becomes due and payable, it may be recovered in a civil action brought
by the Secretary in any court of competent jurisdiction, in which
litigation the Secretary shall be represented by the Solicitor of
Labor.
PART 727--[REMOVED]
6. Under the authority of sections 932 and 936 of the Black Lung
Benefits Act, part 727 is proposed to be removed.
[FR Doc. 97-44 Filed 1-21-97; 8:45 am]
BILLING CODE 4510-27-P
