subchapter b—federal coal mine health and … · 718.205 death due to pneumoconiosis. 718.206...

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SUBCHAPTER B—FEDERAL COAL MINE HEALTH AND SAFETYACT OF 1969, AS AMENDED

PART 718—STANDARDS FOR DETER-MINING COAL MINERS’ TOTALDISABILITY OR DEATH DUE TOPNEUMOCONIOSIS

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 ofMedical 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; biospy.718.107 Other medical evidence.

Subpart C—Determining Entitlement toBenefits

718.201 Definition of pneumoconiosis.718.202 Determining the existence of pneu-

moconiosis.718.203 Establishing relationship of pneumo-

coniosis to coal mine employment.718.204 Total disability defined; criteria for

determining total disability.718.205 Death due to pneumoconiosis.718.206 Effect of findings by persons or agen-

cies.

Subpart D—Presumptions Applicable toEligibility Determinations

718.301 Establishing length of employmentas a miner.

718.302 Relationship of pneumoconiosis tocoal mine employment.

718.303 Death from a respirable disease.718.304 Irrebuttable presumption of total

disability or death due to pneumo-coniosis.

718.305 Presumption of pneumoconiosis.718.306 Presumption of entitlement applica-

ble to certain death claims.718.307 Applicability of 33 U.S.C. 920(a).

Subpart E—Miscellaneous Provisions

718.401 Right to obtain evidence.718.402 Failure to furnish required medical

evidence.718.403 Burden of proof.718.404 Cessation of entitlement.

APPENDIX A TO PART 718—STANDARDS FORADMINISTRATION AND INTERPRETATION OFCHEST ROENTGENOGRAMS (X-RAYS)

APPENDIX B TO PART 718—STANDARDS FORADMINISTRATION AND INTERPRETATION OFPULMONARY FUNCTION TESTS. TABLES B1,B2, B3, B4, B5, B6

APPENDIX C TO PART 718—BLOOD GAS TABLES

AUTHORITY: 5 U.S.C. 301, ReorganizationPlan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901 etseq., 902(f), 925, 932, 934, 936, 945; 33 U.S.C. 901et seq., Secretary’s Order 7–87, 52 FR 48466,Employment Standards Order No. 90–02.

SOURCE: 45 FR 13678, Feb. 29, 1980, unlessotherwise noted.

EDITORIAL NOTE: Nomenclature changes topart 718 appear at 55 FR 28606, July 12, 1990.

Subpart A—General§ 718.1 Statutory Provisions.

(a) Under title IV of the Federal CoalMine Health and Safety Act of 1969, asamended by the Black Lung BenefitsAct of 1972, the Federal Mine Safetyand Health Amendments Act of 1977,the Black Lung Benefits Reform Act of1977, the Black Lung Benefits RevenueAct of 1977, the Black Lung BenefitsAmendments of 1981, and the BlackLung Benefits Revenue Act of 1981,benefits are provided to miners who aretotally disabled due to pneumoconiosisand to certain survivors of a miner whodied due to or while totally or partiallydisabled by pneumoconiosis. However,unless the miner was found entitled tobenefits as a result of a claim filedprior to January 1, 1982, benefits arepayable on survivors’ claims filed on orafter January 1, 1982, only when theminer’s death was due to pneumo-coniosis, except where the survivor’sentitlement is established pursuant to§ 718.306 of this part on a claim filedprior to June 30, 1982. Before the enact-ment of the Black Lung Benefits Re-form Act of 1977, the authority for es-tablishing standards of eligibility forminers and their survivors was placedwith the Secretary of Health, Edu-cation, and Welfare. These standardswere set forth by the Secretary ofHealth, Education, and Welfare in sub-part D of part 410 of this title, and

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20 CFR Ch. VI (4–1–98 Edition)§ 718.2

adopted by the Secretary of Labor forapplication to all claims filed with theSecretary of Labor (see 20 CFR 718.2,1978). Amendments made to section402(f) of the Act by the Black LungBenefits Reform Act of 1977 authorizethe Secretary of Labor to establish cri-teria for determining total or partialdisability or death due to pneumo-coniosis to be applied in the processingand adjudication of claims filed underpart C of title IV of the Act. Section402(f) of the Act further authorizes theSecretary of Labor, in consultationwith the National Institute for Occupa-tional Safety and Health, to establishcriteria for all appropriate medicaltests administered in connection witha claim for benefits. Section 413(b) ofthe Act authorizes the Secretary ofLabor to establish criteria for the tech-niques to be used to take chest roent-genograms (X-rays) in connection witha claim for benefits under the Act.

(b) The Black Lung Benefits ReformAct of 1977 provided that with respectto a claim filed on or before the effec-tive date of this part, that is filed priorto April 1, 1980, or reviewed under sec-tion 435 of the Act, the standards to beapplied in the adjudication of suchclaim shall not be more restrictivethan the criteria applicable to a claimfiled on June 30, 1973, with the SocialSecurity Administration, whether ornot the final disposition of the claimoccurs after March 31, 1980. All suchclaims shall be reviewed under the cri-teria set forth in part 727 of this title.

[48 FR 24287, May 31, 1983]

§ 718.2 Applicability of this part.This part is applicable to the adju-

dication of all claims filed after March31, 1980, and considered by the Sec-retary of Labor under section 422 of theAct and part 725 of this subchapter. Ifa claim subject to the provisions of sec-tion 435 of the Act and subpart C ofpart 727 of this subchapter cannot beapproved under that subpart, suchclaim may be approved, if appropriate,under the provisions contained in thispart. The provisions of this part shall,to the extent appropriate, be construedtogether in the adjudication of allclaims.

[48 FR 24287, May 31, 1983]

§ 718.3 Scope and intent of this part.

(a) This part sets forth the standardsto be applied in determining whether acoal miner is or was totally, or in thecase of a claim subject to § 718.306 par-tially, disabled due to pneumoconiosisor died due to pneumoconiosis. It alsospecifies the procedures and require-ments to be followed in conductingmedical examinations and in admin-istering various tests relevant to suchdeterminations.

(b) This part is designed to interpretthe presumptions contained in section411(c) of the Act, evidentiary standardsand criteria contained in section 413(b)of the Act and definitional require-ments and standards contained in sec-tion 402(f) of the Act within a coherentframework for the adjudication ofclaims. It is intended that these enu-merated provisions of the Act be con-strued as provided in this part.

(c) In enacting title IV of the Act,Congress intended that claimants begiven the benefit of all reasonabledoubt as to the existence of total orpartial disability or death due to pneu-moconiosis. This part shall be con-strued and applied in that spirit and isdesigned to reflect that intent. How-ever, no claim shall be approved unlessthe record considered as a whole, inlight of any applicable presumptions,provides a reasonable basis for deter-mining that the criteria for eligibilityunder the Act and this part have beenmet.

§ 718.4 Definitions and use of terms.

Except as is otherwise provided bythis part, the definitions and usages ofterms contained in § 725.101 of subpartA of part 725 of this title, as amendedfrom time to time, shall be applicableto this part.

Subpart B—Criteria for the Devel-opment of Medical Evidence

§ 718.101 General.

The Office of Workers’ CompensationPrograms (hereinafter OWCP or the Of-fice) shall develop the medical evidencenecessary for a determination with re-spect to each claimant’s entitlement tobenefits. Each miner who files a claim


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Employment Standards Administration, Labor § 718.103

for benefits under the Act shall be pro-vided an opportunity to substantiatehis or her claim by means of a com-plete pulmonary evaluation including,but not limited to, a chest roentgeno-gram (X-ray), physical examination,pulmonary function tests and a blood-gas study.

§ 718.102 Chest roentgenograms (X-rays).

(a) A chest roentgenogram (X-ray)shall be of suitable quality for properclassification of pneumoconiosis andshall conform to the standards for ad-ministration and interpretation ofchest X-rays as described in AppendixA.

(b) A chest X-ray to establish the ex-istence of pneumoconiosis shall beclassified as Category 1, 2, 3, A, B, or C,according to the International LabourOrganization Union InternationaleContra Cancer/Cincinnati (1971) Inter-national Classification of Radiographsof the Pneumoconioses (ILO–U/C 1971),or subsequent revisions thereof. Achest X-ray classified as Category Zunder the ILO Classification (1958) orShort Form (1968) shall be reclassifiedas Category O or Category 1 as appro-priate, and only the latter accepted asevidence of pneumoconiosis. A chest X-ray classified under any of the fore-going classifications as Category O, in-cluding sub-categories 0/–, 0/0, or 0/1under the UICC/Cincinnati (1968) Classi-fication or the ILO–U/C 1971 Classifica-tion does not constitute evidence ofpneumoconiosis.

(c) A description and interpretationof the findings in terms of the classi-fications described in paragraph (b) ofthis section shall be submitted by theexamining physician along with thefilm. The report shall specify the nameand qualifications of the person whotook the film and the name and quali-fications of the physician interpretingthe film. If the physician interpretingthe film is a Board-certified or Board-eligible radiologist or a certified ‘‘B’’reader (see § 718.202), he or she shall soindicate. The report shall further speci-fy that the film was interpreted incompliance with this paragraph.

(d) The original film on which the X-ray report is based shall be supplied tothe Office, unless prohibited by law, in

which event the report shall be consid-ered as evidence only if the originalfilm is otherwise available to the Officeand 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 byany party shall be considered in con-nection with the claim.

(e) No chest X-ray shall constituteevidence of the presence or absence ofpneumoconiosis unless it is in substan-tial compliance with the requirementsof this section and Appendix A, exceptthat in the case of a deceased minerwhere the only available X-ray is ofsufficient quality for determining thepresence or absence of pneumoconiosisand such X-ray was interpreted by aBoard-certified or Board-eligible radi-ologist or a certified ‘‘B’’ reader (see§ 718.208) such X-ray shall be consideredand shall be accorded such weight andprobative value as is appropriate inlight of all of the evidence applicableto the individual case. It shall be pre-sumed, in the absence of evidence tothe contrary, that the requirements ofAppendix A have been met.

(Approved by the Office of Management andBudget under control number 1215–0090)

(Pub. L. No. 96–511)

[45 FR 13678, Feb. 29, 1980, as amended at 48FR 24287, May 31, 1983; 49 FR 18295, Apr. 30,1984]

§ 718.103 Pulmonary function tests.(a) Any report of pulmonary function

tests submitted in connection with aclaim for benefits shall record the re-sults of the forced expiratory volumein one second (FEV1) and either theforced vital capacity (FVC) or the max-imum voluntary ventilation (MVV) orboth. If the MVV is reported, the re-sults of such test shall be obtainedindependently rather than calculatedfrom the results of the FEV1. Suchtests shall be administered and re-ported in accordance with the stand-ards for the administration and inter-pretation of pulmonary function testsas described in Appendix B. It shall bepresumed, in the absence of evidence tothe contrary, that these requirementshave been met.

(b) All pulmonary function test re-sults submitted in connection with a


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20 CFR Ch. VI (4–1–98 Edition)§ 718.104

claim for benefits shall be accompainedby three tracings of each test per-formed, unless the results of two trac-ings of the MVV are within 5% of eachother, in which case two tracings forthat test shall be sufficient. Pul-monary function test results submittedin connection with a claim for benefitsshall also include a statement signedby the physician or technician con-ducting the test setting forth the fol-lowing:

(1) Date and time of test;(2) Name, DOL claim number, age,

height, and weight of claimant at thetime of the test;

(3) Name of technician;(4) Name and signature of physician

supervising the test;(5) Claimant’s ability to understand

the instructions, ability to follow di-rections and degree of cooperation inperforming the tests. If the claimant isunable to complete the test, the personexecuting the report shall set forth thereasons for such failure;

(6) Paper speed of the instrumentused;

(7) Name of the instrument used;(8) Whether a bronchodilator was ad-

ministered. If a bronchodilator is ad-ministered, the physician’s report mustdetail values obtained both before andafter administration of the broncho-dilator and explain the significance ofthe results obtained; and

(9) That the requirements of para-graphs (b) and (c) of this section havebeen complied with.

(c) No results of pulmonary functiontests shall constitute evidence of a res-piratory or pulmonary impairment un-less such tests are conducted and re-ported in substantial compliance withthis section and Appendix B. Specialconsideration shall be given in the caseof a deceased miner where, in the opin-ion of the adjudication officer, the onlyavailable tests demonstrate tech-nically valid results obtained withgood cooperation of the miner.

(The information collection requirementscontained in paragraph (b) were approved bythe Office of Management and Budget undercontrol number 1215–0090)

(Pub. L. No. 96–511)

[45 FR 13678, Feb. 29, 1980, as amended at 49FR 18295, Apr. 30, 1984]

§ 718.104 Report of physical examina-tions.

A report of any physical examinationconducted in connection with a claimshall include the miner’s medical andemployment history. A medical reportform supplied by the Office or a reportcontaining substantially the same in-formation shall be completed for allfindings. In addition to the chest X-rayand pulmonary function tests, the phy-sician shall use his or her judgment inthe selection of other procedures suchas electrocardiogram, blood-gas stud-ies, and other blood analyses in his orher evaluation of the miner. All mani-festations of chronic respiratory dis-ease shall be noted. Any pertinent find-ings not specifically listed on the formshall be added by the examining physi-cian. If heart disease secondary to lungdisease is found, all symptoms and sig-nificant findings shall be noted.


(Pub. L. No. 96–511)


§ 718.105 Arterial blood-gas studies.

(a) Blood-gas studies are performedto detect an impairment in the processof alveolar gas exchange. This defectwill manifest itself primarily as a fallin arterial oxygen tension either atrest or during exercise. No blood-gasstudy shall be performed if medicallycontraindicated.

(b) A blood-gas study shall initiallybe administered at rest and in a sittingposition. If the results of the blood-gastest at rest do not satisfy the require-ments of Appendix C, an exercise blood-gas test shall be offered to the minerunless medically contraindicated. If anexercise blood-gas test is administered,blood shall be drawn during exercise.

(c) Any report of a blood-gas studysubmitted in connection with a claimshall 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;


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(5) Name and signature of physiciansupervising the study;

(6) The recorded values for p CO2, p

O2, and pH, which have been collectedsimultaneously (specify values at restand, 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 cali-

brated before and after each test.


(Pub. L. No. 96–511)


§ 718.106 Autopsy; biopsy.

(a) A report of an autopsy or biopsysubmitted in connection with a claimshall include a detailed gross macro-scopic and microscopic description ofthe lungs or visualized portion of alung. If a surgical procedure has beenperformed to obtain a portion of alung, the evidence shall include a copyof the surgical note and the pathologyreport of the gross and microscopic ex-amination of the surgical specimen. Ifan autopsy has been performed, a com-plete copy of the autopsy report shallbe submitted to the Office.

(b) No report of an autopsy or biopsysubmitted in connection with a claimshall be considered unless the reportcomplies with the requirements of thissection, except that in the case of aminer who died prior to March 31, 1980,such reports shall be considered evenwhen the reports are not in substantialcompliance with the requirements ofthis section. Such nonconforming re-ports concerning miners who died priorto March 31, 1980, shall be accordedsuch weight and probative value as isappropriate in light of all of the evi-dence applicable to the individual case.

(c) A negative biopsy is not conclu-sive evidence that the miner does nothave pneumoconiosis. However, wherepositive findings are obtained on bi-opsy, the results will constitute evi-

dence of the presence of pneumo-coniosis.

[45 FR 13678, Feb. 29, 1980, as amended at 48FR 24288, May 31, 1983]

§ 718.107 Other medical evidence.The results of any medically accept-

able test or procedure reported by aphysician not addressed in this subpartwhich test or procedure tends to dem-onstrate the presence or absence ofpneumoconiosis or the sequelae ofpneumoconiosis or the presence or ab-sence of a respiratory or pulmonaryimpairment, may be submitted in con-nection with a claim and shall be givenappropriate consideration.

Subpart C—DeterminingEntitlement to Benefits

§ 718.201 Definition of pneumo-coniosis.

For the purpose of the Act, pneumo-coniosis means a chronic dust disease ofthe lung and its sequelae, includingrespiratory and pulmonary impair-ments, arising out of coal mine em-ployment. This definition includes, butis not limited to, coal workers’ pneu-moconiosis, anthracosilicosis, anthra-cosis, anthrosilicosis, massive pul-monary fibrosis, progressive massivefibrosis, silicosis or silicotuberculosis,arising out of coal mine employment.For purposes of this definition, a dis-ease ‘‘arising out of coal mine employ-ment’’ includes any chronic pulmonarydisease resulting in respiratory or pul-monary impairment significantly re-lated to, or substantially aggravatedby, dust exposure in coal mine employ-ment.

§ 718.202 Determining the existence ofpneumoconiosis.

(a) A finding of the existence of pneu-moconiosis may be made as follows:

(1) A chest X-ray conducted and clas-sified in accordance with § 718.102 mayform the basis for a finding of the ex-istence of pneumoconiosis. Except asotherwise provided in this section,where two or more X-ray reports are inconflict, in evaluating such X-ray re-ports consideration shall be given tothe radiological qualifications of thephysicians interpreting such X-rays.


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20 CFR Ch. VI (4–1–98 Edition)§ 718.202

(i) In all claims filed before January1, 1982, where there is other evidence ofpulmonary or respiratory impairment,a Board-certified or Board-eligible ra-diologist’s interpretation of a chest X-ray shall be accepted by the Office ifthe X-ray is in compliance with the re-quirements of § 718.102 and if such X-ray has been taken by a radiologist orqualified radiologic technologist ortechnician and there is no evidencethat the claim has been fraudulentlyrepresented. However, these limita-tions shall not apply to any claim filedon or after January 1, 1982.

(ii) The following definitions shallapply when making a finding in accord-ance with this paragraph.

(A) The term other evidence meansmedical tests such as blood-gas studies,pulmonary function studies orphysicial examinations or medical his-tories which establish the presence of achronic pulmonary, respiratory orcardio-pulmonary condition, and in thecase of a deceased miner, in the ab-sence of medical evidence to the con-trary, affidavits of persons with knowl-edge of the miner’s physical condition.

(B) Pulmonary or respiratory impair-ment means inability of the human res-piratory apparatus to perform in a nor-mal manner one or more of the threecomponents of respiration, namely,ventilation, perfusion and diffusion.

(C) Board-certified means certificationin radiology or diagnostic roentgenol-ogy by the American Board of Radiol-ogy, Inc. or the American OsteopathicAssociation.

(D) Board-eligible means the success-ful completion of a formal accreditedresidency program in radiology or diag-nostic roentgenology.

(E) Certified ‘B’ reader or ‘B’ readermeans a physician who has dem-onstrated proficiency in evaluatingchest roentgenograms forroentgenographic quality and in theuse of the ILO–U/C classification for in-terpreting chest roentgenograms forpneumoconiosis and other diseases bytaking and passing a specially designedproficiency examination given on be-half of or by the Appalachian Labora-tory for Occupational Safety andHealth. See 42 CFR 37.51(b)(2).

(F) Qualified radiologic technologist ortechnician means an individual who is

either certified as a registered tech-nologist by the American Registry ofRadiologic Technologists or licensed asa radiologic technologist by a state li-censing board.

(2) A biopsy or autopsy conductedand reported in compliance with§ 718.106 may be the basis for a findingof the existence of pneumoconiosis. Afinding in an autopsy of anthracoticpigmentation, however, shall not besufficient, by itself, to establish the ex-istence of pneumoconiosis. A report ofautopsy shall be accepted unless thereis evidence that the report is not accu-rate or that the claim has been fraudu-lently represented.

(3) If the presumptions described in§§ 718.304, 718.305 or § 718.306 are applica-ble, it shall be presumed that theminer is or was suffering from pneumo-coniosis.

(4) A determination of the existenceof pneumoconiosis may also be made ifa physician, exercising sound medicaljudgment, notwithstanding a negativeX-ray, finds that the miner suffers orsuffered from pneumoconiosis as de-fined in § 718.201. Any such finding shallbe based on objective medical evidencesuch as blood-gas studies, electro-cardiograms, pulmonary function stud-ies, physical performance tests, phys-ical examination, and medical andwork histories. Such a finding shall besupported by a reasoned medical opin-ion.

(b) No claim for benefits shall be de-nied solely on the basis of a negativechest X-ray.

(c) A determination of the existenceof pneumoconiosis shall not be madesolely on the basis of a living miner’sstatements or testimony. Nor shallsuch a determination be made upon aclaim involving a deceased miner filedon or after January 1, 1982, solely basedupon the affidavit(s) (or equivalentsworn testimony) of the claimant and/or his or her dependents who would beeligible for augmentation of the claim-ant’s benefits if the claim were ap-proved.



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§ 718.203 Establishing relationship ofpneumoconiosis to coal mine em-ployment.

(a) In order for a claimant to befound eligible for benefits under theAct, it must be determined that theminer’s pneumoconiosis arose at leastin part out of coal mine employment.The provisions in this section set forththe criteria to be applied in makingsuch a determination.

(b) If a miner who is suffering or suf-fered from pneumoconiosis was em-ployed for ten years or more in one ormore coal mines, there shall be a re-buttable presumption that the pneumo-coniosis arose out of such employment.

(c) If a miner who is suffering or suf-fered from pneumoconiosis was em-ployed less than ten years in the na-tion’s coal mines, it shall be deter-mined that such pneumoconiosis aroseout of that employment only if com-petent evidence establishes such a rela-tionship.

§ 718.204 Total disability defined; cri-teria for determining total disabil-ity.

(a) General. Benefits are providedunder the Act for or on behalf of min-ers who are totally disabled due topneumoconiosis, or who were totallydisabled due to pneumoconiosis at thetime of death. The standards of thissection shall be applied to determinewhether a miner is or was ‘‘totally dis-abled’’ for the purpose of the Act.

(b) Total disability defined. A minershall be considered totally disabled ifthe irrebuttable presumption in§ 718.304 applies. If the irrebuttable pre-sumption described in § 718.304 does notapply, a miner shall be considered to-tally disabled if pneumoconiosis as de-fined in § 718.201 prevents or preventedthe miner:

(1) From performing his or her usualcoal mine work; and

(2) From engaging in gainful employ-ment in the immediate area of his orher residence requiring the skills orabilities comparable to those of anyemployment in a mine or mines inwhich he or she previously engagedwith some regularity over a substan-tial period of time.

(c) Criteria. In the absence of con-trary probative evidence, evidence

which meets the standards of eitherparagraphs (c)(1), (2), (3), (4) or (5) ofthis section shall establish a miner’stotal disability:

(1) Pulmonary function tests showingvalues equal to or less than those listedin Table B1 (Males) or Table B2 (Fe-males) in appendix B to this part for anindividual of the miner’s age, sex, andheight for the FEV1 test; if, in addi-tion, such tests also reveal the valuesspecified in either paragraph (c)(1) (i)or (ii) or (iii) of this section:

(i) Values equal to or less than thoselisted 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

(ii) Values equal to or less than thoselisted 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

(iii) A percentage of 55 or less whenthe results of the FEV1 test are dividedby the results of the FVC test (FEV1/FVC equal to or less than 55%), or

(2) Arterial blood-gas tests show thevalues listed in Appendix C to thispart, or

(3) The miner has pneumoconiosisand has been shown by the medical evi-dence to be suffering from corpulmonale with right sided congestiveheart failure, or

(4) Where total disability cannot beestablished under paragraphs (c)(1),(c)(2) or (c)(3) of this section, or wherepulmonary function tests and/or blood-gas studies are medically contra-indicated, total disability may never-theless be found if a physician exercis-ing reasoned medical judgment, basedon medically acceptable clinical andlaboratory diagnostic techniques, con-cludes that a miner’s respiratory orpulmonary condition prevents or pre-vented the miner from engaging in em-ployment as described in paragraph (b)of this section, or

(5) In a case involving a deceasedminer in which the claim was filedprior to January 1, 1982, where there isno medical or other relevant evidence,affidavits (or equivalent sworn testi-mony) from persons knowledgeable ofthe miner’s physical condition shall besufficient to establish total (or under


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20 CFR Ch. VI (4–1–98 Edition)§ 718.205

§ 718.306 partial) disability. On a sur-vivor’s claim filed on or after January1, 1982, but prior to June 30, 1982, whereentitlement is sought to be establishedin accordance with § 718.306, wherethere is no medical or other relevantevidence, affidavits (or equivalentsworn testimony) from persons knowl-edgeable of the miner’s physical condi-tion shall be sufficient to establishtotal or partial disability; however,such a determination shall not bebased solely upon the affidavits or tes-timony of the claimant and/or his orher dependents who would be eligiblefor augmentation of the claimant’sbenefits if the claim were approved.Except as provided in § 718.305, proofthat the miner suffers or suffered froma totally disabling respiratory or pul-monary impairment as defined in para-graphs (c)(1), (2), (4) and (5) of this sec-tion shall not, by itself, be sufficient toestablish that the miner’s impairmentis or was due to pneumoconiosis.

(d) In determining total disability,the following shall apply to statementsmade by miners about their condition:

(1) Statements made before death bya deceased miner about his or her phys-ical condition are relevant and shall beconsidered in making a determinationas to whether the miner was totallydisabled at the time of death.

(2) In the case of a living miner’sclaim, a finding of total disability shallnot be made solely on the miner’sstatements or testimony.

(e) In determining total disability toperform usual coal mine work, the fol-lowing shall apply in evaluating theminer’s employment activities:

(1) In the case of a deceased miner,employment in a mine at the time ofdeath shall not be conclusive evidencethat the miner was not totally dis-abled. To disprove total disability, itmust be shown that at the time theminer died, there were no changed cir-cumstances of employment indicativeof his or her reduced ability to performhis or her usual coal mine work.

(2) In the case of a living miner, proofof current employment in a coal mineshall not be conclusive evidence thatthe miner is not totally disabled unlessit can be shown that there are nochanged circumstances of employmentindicative of his or her reduced ability

to perform his or her usual coal minework.

(3) Changed circumstances of employ-ment indicative of a miner’s reducedability to perform his or her usual coalmine work may include but are notlimited to:

(i) The miner’s reduced ability toperform his or her customary dutieswithout help; or

(ii) The miner’s reduced ability toperform his or her customary duties athis or her usual levels of rapidity, con-tinuity or efficiency; or

(iii) The miner’s transfer by requestor assignment to less vigorous dutiesor to duties in a less dusty part of themine.

(f) No miner who is engaged in coalmine employment shall (except as pro-vided in § 718.304) be entitled to anybenefit under this part while so em-ployed. Any miner who has been deter-mined to be eligible for benefits shallbe entitled to benefits only if the min-er’s employment terminates within oneyear after the date such determinationbecomes final.


§ 718.205 Death due to pneumo-coniosis.

(a) Benefits are provided to eligiblesurvivors of a miner whose death wasdue to pneumoconiosis.

(b) For the purpose of adjudicatingsurvivors’ claims filed prior to January1, 1982, death will be considered due topneumoconiosis if any of the followingcriteria is met:

(1) Where competent medical evi-dence established that the miner’sdeath was due to pneumoconiosis, or

(2) Where death was due to multiplecauses including pneumoconiosis and itis not medically feasible to distinguishwhich disease caused death or the ex-tent to which pneumoconiosis contrib-uted to the cause of death, or

(3) Where the presumption set forthat § 718.304 is applicable, or

(4) Where either of the presumptionsset forth at § 718.303 or § 718.305 is appli-cable and has not been rebutted.

(5) Death shall be considered to bedue to pneumoconiosis where the causeof death is significantly related to oraggravated by pneumoconiosis.


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(c) For the purpose of adjudicatingsurvivors’ claims filed on or after Jan-uary 1, 1982, death will be considered tobe due to pneumoconiosis if any of thefollowing criteria is met:

(1) Where competent medical evi-dence established that the miner’sdeath was due to pneumoconiosis, or

(2) Where pneumoconiosis was a sub-stantially contributing cause or factorleading to the miner’s death or wherethe death was caused by complicationsof pneumoconiosis, or

(3) Where the presumption set forthat § 718.304 is applicable.

(4) However, survivors are not eligi-ble for benefits where the miner’sdeath was caused by a traumatic injuryor the principal cause of death was amedical condition not related to pneu-moconiosis, unless the evidence estab-lishes that pneumoconiosis was a sub-stantially contributing cause of death.

(d) To minimize the hardships to po-tentially entitled survivors due to thedisruption of benefits upon the miner’sdeath, survivors’ claims filed on orafter January 1, 1982, shall be adju-dicated on an expedited basis in ac-cordance with the following proce-dures. The initial burden is upon theclaimant, with the assistance of thedistrict director, to develop evidencewhich meets the requirements of para-graph (c) of this section. Where the ini-tial medical evidence appears to estab-lish that death was due to pneumo-coniosis, the survivor will receive bene-fits unless the weight of the evidenceas subsequently developed by the De-partment or the responsible operatorestablishes that the miner’s death wasnot due to pneumoconiosis as definedabove. However, no such benefits shallbe found payable before the party re-sponsible for the payment of such bene-fits shall have had a reasonable oppor-tunity for the development of rebuttalevidence. See §§ 725.412–725.415 concern-ing the operator’s opportunity to de-velop evidence prior to an initial deter-mination and §§ 718.307 and 718.403 onthe burden of proof.


§ 718.206 Effect of findings by personsor agencies.

Decisions, statements, reports, opin-ions, or the like, of agencies, organiza-tions, physicians or other individuals,about the existence, cause, and extentof a miner’s disability, or the cause ofa miner’s death, are admissible. Ifproperly submitted, such evidence shallbe considered and given the weight towhich it is entitled as evidence underall the facts before the adjudication of-ficer in the claim.

Subpart D—Presumptions Applica-ble to Eligibility Determina-tions

§ 718.301 Establishing length of em-ployment as a miner.

(a) The presumptions set forth in§§ 718.302, 718.303, 718.305 and 718.306apply only if a miner has been em-ployed in one or more coal mines forspecified periods. Regular employmentmay be established on the basis of anyevidence presented, including the testi-mony of a claimant or other witnesses,and shall not be contingent upon afinding of a specific number of days ofemployment within a given period.

(b) For the purposes of the presump-tions described in this subpart, a yearof employment means a period of oneyear, or partial periods totalling oneyear, during which the miner was regu-larly employed in or around a coalmine by the operator or other em-ployer. A ‘‘working day’’ means anyday or part of a day for which a minerreceived pay for work as a miner. If anoperator or other employer proves thatthe miner was not employed in oraround a coal mine for a period of atleast 125 working days during a year,such operator or other employer shallbe determined to have established thatthe miner was not regularly employedfor a year for the purposes of this sec-tion. If a miner worked in or aroundone or more coal mines for fewer than125 days in a calendar year, he or sheshall be credited with a fractional yearbased on the ratio of the actual numberof days worked to 125. No periods ofcoal mine employment occurring out-side the United States shall be credited


732

20 CFR Ch. VI (4–1–98 Edition)§ 718.302

toward the use of any presumption con-tained in this part.

§ 718.302 Relationship of pneumo-coniosis to coal mine employment.

If a miner who is suffering or sufferedfrom pneumoconiosis was employed forten years or more in one or more coalmines, there shall be a rebuttable pre-sumption that the pneumoconiosisarose out of such employment. (See§ 718.203.)

§ 718.303 Death from a respirable dis-ease.

(a) If a deceased miner was employedfor ten or more years in one or morecoal mines and died from a respirabledisease, there shall be a rebuttable pre-sumption that his or her death was dueto pneumoconiosis.

(1) Under this presumption, deathshall be found due to a respirable dis-ease in any case in which the evidenceestablishes that death was due to mul-tiple causes, including a respirable dis-ease, and it is not medically feasible todistinguish which disease caused deathor the extent to which the respirabledisease contributed to the cause ofdeath.

(b) The presumption of paragraph (a)of this section may be rebutted by ashowing that the deceased miner didnot have pneumoconiosis, that his orher death was not due to pneumo-coniosis or that pneumoconiosis didnot contribute to his or her death.

(c) This section is not applicable toany claim filed on or after January 1,1982.


§ 718.304 Irrebuttable presumption oftotal disability or death due topneumoconiosis.

There is an irrebuttable presumptionthat a miner is totally disabled due topneumoconiosis, that a miner’s deathwas due to pneumoconiosis or that aminer was totally disabled due to pneu-moconiosis at the time of death, if suchminer is suffering or suffered from achronic dust disease of the lung which:

(a) When diagnosed by chest X-ray(see § 718.202 concerning the standardsfor X-rays and the effect of interpreta-tions of X-rays by physicians) yields

one or more large opacities (greaterthan 1 centimeter in diameter) andwould be classified in Category A, B, orC in:

(1) The ILO–U/C International Classi-fication of Radiographs of thePneumoconioses, 1971, or subsequentrevisions thereto; or

(2) The International Classificationof the Radiographs of thePneumoconioses of the InternationalLabour Office, Extended Classification(1968) (which may be referred to as the‘‘ILO Classification (1968)’’); or

(3) The Classification of thePneumoconioses of the Union Inter-nationale Contra Cancer/Cincinnati(1968) (which may be referred to as the‘‘UICC/Cincinnati (1968) Classifica-tion’’); or

(b) When diagnosed by biopsy or au-topsy, yields massive lesions in thelung; or

(c) When diagnosed by means otherthan those specified in paragraphs (a)and (b) of this section, would be a con-dition which could reasonably be ex-pected to yield the results described inparagraph (a) or (b) of this section haddiagnosis been made as therein de-scribed: Provided, however, That any di-agnosis made under this paragraphshall accord with acceptable medicalprocedures.

§ 718.305 Presumption of pneumo-coniosis.

(a) If a miner was employed for fif-teen years or more in one or more un-derground coal mines, and if there is achest X-ray submitted in connectionwith such miner’s or his or her sur-vivor’s claim and it is interpreted asnegative with respect to the require-ments of § 718.304, and if other evidencedemonstrates the existence of a totallydisabling respiratory or pulmonary im-pairment, then there shall be a rebut-table presumption that such miner istotally disabled due to pneumo-coniosis, that such miner’s death wasdue to pneumoconiosis, or that at thetime of death such miner was totallydisabled by pneumoconiosis. In thecase of a living miner’s claim, aspouse’s affidavit or testimony maynot be used by itself to establish theapplicability of the presumption. The


733


Secretary shall not apply all or a por-tion of the requirement of this para-graph that the miner work in an under-ground mine where it is determinedthat conditions of the miner’s employ-ment in a coal mine were substantiallysimilar to conditions in an under-ground mine. The presumption may berebutted only by establishing that theminer does not, or did not have pneu-moconiosis, or that his or her res-piratory or pulmonary impairment didnot 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 rel-evant evidence, affidavits of personshaving knowledge of the miner’s condi-tion shall be considered to be sufficientto establish the existence of a totallydisabling respiratory or pulmonary im-pairment for purposes of this section.

(c) The determination of the exist-ence of a totally disabling respiratoryor pulmonary impairment, for purposesof applying the presumption describedin this section, shall be made in ac-cordance with § 718.204.

(d) Where the cause of death or totaldisability did not arise in whole or inpart out of dust exposure in the min-er’s coal mine employment or the evi-dence establishes that the miner doesnot or did not have pneumoconiosis,the presumption will be considered re-butted. However, in no case shall thepresumption be considered rebutted onthe basis of evidence demonstratingthe existence of a totally disabling ob-structive respiratory or pulmonary dis-ease of unknown origin.

(e) This section is not applicable toany claim filed on or after January 1,1982.


§ 718.306 Presumption of entitlementapplicable to certain death claims.

(a) In the case of a miner who died onor before March 1, 1978, who was em-ployed for 25 or more years in one ormore coal mines prior to June 30, 1971,the eligible survivors of such minerwho claims have been filed prior toJune 30, 1982, shall be entitled to thepayment of benefits, unless it is estab-lished that at the time of death suchminer was not partially or totally dis-

abled due to pneumoconiosis. Eligiblesurvivors shall, upon request, furnishsuch evidence as is available with re-spect to the health of the miner at thetime of death, and the nature and dura-tion of the miner’s coal mine employ-ment.

(b) For the purpose of this section, aminer will be considered to have been‘‘partially disabled’’ if he or she had re-duced ability to engage in work as de-fined in § 718.204(b).

(c) In order to rebut this presumptionthe evidence must demonstrate thatthe miner’s ability to perform work asdefined in § 718.204(b) was not reducedat the time of his or her death or thatthe miner did not have pneumo-coniosis.

(d) None of the following items, byitself, shall be sufficient to rebut thepresumption:

(1) Evidence that a deceased minerwas employed in a coal mine at thetime of death;

(2) Evidence pertaining to a deceasedminer’s level of earnings prior todeath;

(3) A chest X-ray interpreted as nega-tive for the existence of pneumo-coniosis;

(4) A death certificate which makesno mention of pneumoconiosis.


§ 718.307 Applicability of 33 U.S.C.920(a).

(a) Section 20(a) of the Longshore-men’s and Harbor Workers’ Compensa-tion Act, 33 U.S.C. 920(a), provides thatin any claim for benefits under theLongshoremen’s Act it shall be pre-sumed, in the absence of substantialevidence to the contrary, that theclaim comes within the provisions ofthe Act. Section 422(a) of the Act incor-porates such provision except as theSecretary provides by regulation.

(b) Where one or more of the pre-sumptions contained in §§ 718.302–718.305is or may be applicable to a claim, theprovisions of section 20(a) of the Long-shoremen’s Act shall not apply to re-lieve a claimant from the burden ofproving the facts necessary to give riseto the presumption, nor do the provi-sions of section 20(a) relieve a claimant


734

20 CFR Ch. VI (4–1–98 Edition)§ 718.401

of the burden of proving any element ofthe claim. See § 718.403.

Subpart E—MiscellaneousProvisions

§ 718.401 Right to obtain evidence.

Each miner who files a claim for ben-efits under the Act shall be provided anopportunity to substantiate his or herclaim by means of a complete pul-monary evaluation. Accordingly, theOffice shall assist each claimant in ob-taining the evidence, including medicalevidence, necessary for a complete ad-judication of a claim. In the case of aminer’s claim, initial medical tests andexaminations shall be arranged for theminer by the Office, at no cost to theminer (See §§ 725.405 and 725.406 of thissubchapter). If a conflict in medicalevidence is determined to exist by thedistrict director or if a miner is dissat-isfied with the results of medical evi-dence obtained by the district director,additional medical evidence may be ob-tained by the miner or the district di-rector, as provided in § 725.407 of thissubchapter.

§ 718.402 Failure to furnish requiredmedical evidence.

An individual shall not be deter-mined entitled to benefits unless he orshe furnishes such medical evidence asis reasonably required to establish hisor her claim. A miner who unreason-ably refuses (a) to provide the Office ora coal mine operator with a completestatement of his or her medical historyand/or to authorize access to his or hermedical records, or (b) to submit to anexamination or test requested by thedistrict director or a coal mine opera-tor which may be liable for the pay-ment of a claim, shall not be found eli-gible for benefits under this subchapter(See §§ 725.408 and 725.414 of this sub-chapter).

§ 718.403 Burden of proof.

Except as provided in this sub-chapter, the burden of proving a factalleged in connection with any provi-sion of this part shall rest with theparty making such allegation.

§ 718.404 Cessation of entitlement.

(a) An individual who has been fi-nally adjudged to be totally disableddue to pneumoconiosis and is receivingbenefits under the Act shall promptlynotify the Office and the responsiblecoal mine operator, if any, if he or sheengages in any work as defined in§ 718.204(c).

(b) An individual who has been fi-nally adjudged to be totally disableddue to pneumoconiosis shall, if re-quested to do so upon reasonable no-tice, where there is an issue pertainingto the validity of the original adjudica-tion of disability, present himself orherself for, and submit to, examina-tions or tests as provided in § 718.101,and shall submit medical reports andother evidence necessary for the pur-pose of determining whether such indi-vidual continues to be under a disabil-ity. Benefits shall cease as of themonth in which the miner is deter-mined to be no longer eligible for bene-fits.

APPENDIX A TO PART 718—STANDARDSFOR ADMINISTRATION AND INTERPRE-TATION OF CHEST ROENTGENOGRAMS(X-RAYS)

The following standards are established inaccordance with sections 402(f) (1) (D) and413(b) of the Act. They were developed inconsultation with the National Institute forOccupational Safety and Health. Thesestandards are promulgated for the guidanceof physicians and medical technicians to in-sure that uniform procedures are used in ad-ministering and interpreting X-rays and thatthe best available medical evidence will besubmitted in connection with a claim forblack lung benefits. If it is established thatone or more standards have not been met,the claims adjudicator may consider suchfact in determining the evidentiary weightto be assigned to the physician’s report of anX-ray.

(1) Every chest roentgenogram shall be asingle posteroanterior projection at full in-spiration on a 14 by 17 inch film. Additionalchest films or views shall be obtained if theyare necessary for clarification and classifica-tion. The film and cassette shall be capableof being positioned both vertically and hori-zontally so that the chest roentgenogramwill include both apices and costophrenic an-gles. If a miner is too large to permit theabove requirements, then a projection withminimum loss of costophrenic angle shall bemade.


735

Employment Standards Administration, Labor Pt. 718, App. B

(2) Miners shall be disrobed from the waistup at the time the roentgenogram is given.The facility shall provide a dressing areaand, for those miners who wish to use one,the facility shall provide a clean gown. Fa-cilities shall be heated to a comfortable tem-perature.

(3) Roentgenograms shall be made onlywith a diagnostic X-ray machine having a ro-tating anode tube with a maximum of a 2mm source (focal spot).

(4) Except as provided in paragraph (5),roentgenograms shall be made with unitshaving generators which comply with thefollowing: (a) the generators of existingroentgenographic units acquired by the ex-amining facility prior to July 27, 1973, shallhave a minimum rating of 200 mA at 100 kVp;(b) generators of units acquired subsequentto that date shall have a minimum rating of300 mA at 125 kVp.

NOTE: A generator with a rating of 150 kVpis recommended.

(5) Roentgenograms made with battery-powered mobile or portable equipment shallbe made with units having a minimum rat-ing of 100 mA at 110 kVp at 500 Hz, or 200 mAat 110 kVp at 60 Hz.

(6) Capacitor discharge, and field emissionunits may be used.

(7) Roentgenograms shall be given onlywith equipment having a beam-limiting de-vice which does not cause large unexposedboundaries. The use of such a device shall bediscernible from an examination of theroentgenogram.

(8) To insure high quality chest roentgeno-grams:

(i) The maximum exposure time shall notexceed 1⁄20 of a second except that with singlephase units with a rating less than 300 mA at125 kVp and subjects with chest over 28 cmpostero-anterior, the exposure may be in-creased to not more than 1⁄10 of a second;

(ii) The source or focal spot to film dis-tance 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 main-tained and verified at 6-month or shorter in-tervals;

(v) Intensifying screens shall be inspectedat least once a month and cleaned when nec-essary by the method recommended by themanufacturer;

(vi) All intensifying screens in a cassetteshall be of the same type and made by thesame manufacturer;

(vii) When using over 90 kV, a suitable gridor other means of reducing scattered radi-ation shall be used;

(viii) The geometry of the radiographicsystem shall insure that the central axis(ray) of the primary beam is perpendicular tothe plane of the film surface and impinges onthe center of the film.

(9) Radiographic processing:(i) Either automatic or manual film proc-

essing is acceptable. A constant time-tem-perature technique shall be meticulouslyemployed for manual processing.

(ii) If mineral or other impurities in theprocessing water introduce difficulty in ob-taining a high-quality roentgenogram, asuitable filter or purification system shall beused.

(10) Before the miner is advised that theexamination is concluded, the roentgeno-gram shall be processed and inspected andaccepted for quality by the physician, or ifthe physician is not available, acceptancemay 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 usedwhich complies with the voltage, current,and regulation specified by the manufacturerof the machine.

(12) A densitometric test object may be re-quired on each roentgenogram for an objec-tive evaluation of film quality at the discre-tion of the Department of Labor.

(13) Each roentgenogram made hereundershall be permanently and legibly markedwith the name and address of the facility atwhich it is made, the miner’s DOL claimnumber, the date of the roentgenogram, andleft and right side of film. No other identify-ing markings shall be recorded on the roent-genogram.

APPENDIX B TO PART 718—STANDARDSFOR ADMINISTRATION AND INTERPRE-TATION OF PULMONARY FUNCTIONTESTS. TABLES B1, B2, B3, B4, B5,B6

The following standards are established inaccordance with section 402(f)(1)(D) of theAct. They were developed in consultationwith the National Institute for OccupationalSafety and Health (NIOSH). These standardsare promulgated for the guidance of physi-cians and medical technicians to insure thatuniform procedures are used in administer-ing and interpreting ventilatory functiontests and that the best available medical evi-dence will be submitted in support of a claimfor black lung benefits. If it is establishedthat one or more standards have not beenmet, the claims adjudicator may considersuch fact in determining the evidentiaryweight to be given to the results of the ven-tilatory function tests.

(1) Instruments to be used for the adminis-tration of pulmonary function tests shall beapproved by NIOSH and shall conform to thefollowing criteria:

(i) The instrument shall be accurate within±50 ml or within ±3 percent of reading,whichever is greater.


736

20 CFR Ch. VI (4–1–98 Edition)Pt. 718, App. B

(ii) The instrument shall be capable ofmeasuring vital capacity from 0 to 7 litersBTPS.

(iii) The instrument shall have a low iner-tia and offer low resistance to airflow suchthat the resistance to airflow at 12 liters persecond must be less than 1.5 cm H2 O/liter/sec.

(iv) The zero time point for the purpose oftiming the FEV1 shall be determined by ex-trapolating the steepest portion of the vol-ume-time curve back to the maximal inspi-ration volume or by an equivalent method.

(v) Instruments incorporating measure-ments of airflow to determine volume shallconform to the same volume accuracy statedin subparagraph (1)(i) of this Appendix Bwhen presented with flow rates from at least0 to 12 liters per second.

(vi) The instrument or user of the instru-ment must have a means of correcting vol-umes to body temperature saturated withwater vapor (BTPS) under conditions ofvarying ambient spirometer temperaturesand barometric pressures.

(vii) The instrument used shall provide atracing of either flow versus volume or vol-ume versus time during the entire forced ex-piration and volume versus time during theMVV maneuver. A tracing is necessary to de-termine whether the patient has performedthe test properly. The tracing must be of suf-ficient size that hand measurements may bemade within the requirement of subpara-graph (1)(i) of this Appendix B. If a paperrecord is made it must have a paper speed ofat least 2 cm/sec and a volume sensitivity ofat least 10.0 mm of chart per liter of volume.The recorder tracing must display the entireFVC maneuver at a constant speed for atleast 10 seconds after the onset of exhala-tion. This constant speed must be reachedprior to the onset of exhalation.

(viii) The instrument shall be capable ofaccumulating volume for a minimum of 10seconds after the onset of exhalation.

(ix) The forced expiratory volume in 1 sec(FEV1) measurement shall comply with theaccuracy requirements stated in subpara-graph (1)(i) of this Appendix B. That is, theyshall be accurately measured to within ±50ml or with ±3 percent of reading, whicheveris greater.

(x) The instrument must be capable ofbeing calibrated in the field with respect tothe FEV1. This calibration of the FEV1 maybe done either directly or indirectly throughvolume and time base measurements. Thevolume calibration source shall provide avolume displacement of at least 3 liters andshall be accurate to within ±30 ml.

(xi) For measuring maximum voluntaryventilation (MVV) the instrument shall havea response which is flat within ±10 percent upto 4 Hz at flow rates up to 12 liters per sec-ond over the volume range. The time for ex-haled volume integration or recording shall

be no less than 12 sec. and no more than 15sec. The indicated time shall be accurate towithin ±3 percent.

A recording of the spirometer tracing is re-quired, and the volume sensitivity shall besuch that 10 mm or more deflection cor-responds to 1 liter volume.

(2) The administration of pulmonary func-tion tests shall conform to the following cri-teria:

(i) Tests shall not be performed during orsoon after an acute respiratory illness.

(ii) For the FEV1 and FVC, use of a noseclip is required. The procedures shall be ex-plained in simple terms to the patient whoshall be instructed to loosen any tight cloth-ing and stand in front of the apparatus. Thesubject may sit, or stand, but care should betaken on repeat testing that the same posi-tion be used. Particular attention shall begiven to insure that the chin is slightly ele-vated with the neck slightly extended. Thepatient shall be instructed to make a full in-spiration, either from the spirometer or theopen atmosphere, using a normal breathingpattern and then blow into the apparatus,without interruption, as hard, fast, and com-pletely as possible. At least three forced ex-pirations shall be carried out. During themaneuvers, the patient shall be observed forcompliance with instructions. The expira-tions shall be checked visually for reproduc-ibility from the flow-volume or volume-timetracings. The effort shall be judged unaccept-able when the patient:

(A) Has not reached full inspiration preced-ing the forced expiration; or

(B) Has not used maximal effort during theentire forced expiration; or

(C) Has not continued the expiration forleast 5 sec. or until an obvious plateau in thevolume-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 totongue being placed in front of mouthpiece,false teeth falling in front of mouthpiece,etc.); or

(F) Has an unsatisfactory start of expira-tion, one characterized by excessive hesi-tation (or false starts), and therefore not al-lowing back extrapolation of time 0 (extrap-olated volume on the volume-time tracingmust be less than 10 percent of the FVC); or

(G) Has an excessive variability betweenthe three acceptable curves. The variationbetween the two largest FEV1’s of the threeacceptable tracings should not exceed 5 per-cent of the largest FEV1 or 100 ml, whicheveris greater.

(iii) For the MVV, the subject shall be in-structed before beginning the test that he orshe will be asked to breathe as deeply and asrapidly as possible for approximately 15 sec-onds.

The test shall be performed with the sub-ject in the standing position, if possible.


737


Care shall be taken on repeat testing thatthe same position be used. The subject shallbreathe normally into the mouthpiece of theapparatus for 10 to 15 seconds to become ac-customed to the system. The subject shallthen be instructed to breathe as deeply andas rapidly as possible, and shall be contin-ually encouraged during the remainder ofthe maneuver. Subject shall continue themaneuver for 15 seconds. At least 5 minutesof rest shall be allowed between maneuvers.At least three MVV’s shall be carried out.(But see § 718.103(b).) During the maneuversthe patient shall be observed for compliancewith instructions. The effort shall be judgedunacceptable when the patient:

(A) Has not maintained consistent effortfor 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 totongue being placed in front of mouthpiece,false teeth falling in front of mouthpiece,etc.); or

(D) Has an excessive variability betweenthe three acceptable curves. The variationbetween the two largest MVV’s of the threesatisfactory tracings shall not exceed 10 per-cent.

(iv) A calibration check shall be performedon the instrument each day before use, usinga volume source of at least three liters, accu-rate to within ±1 percent of full scale. The

room air in the syringe is introduced intothe spirometer once with a flow rate of ap-proximately 0.5 liters per second (six secondsemptying time with a 3-liter syringe) andonce with a higher flow rate of approxi-mately 3.0 liters per second (one secondemptying time with a 3-liter syringe). Thevolume measured by the spirometer shall bebetween 2.90 and 3.10 liters for both trials.Accuracy of the time measurement used indetermining the FEV1 shall be checked usingthe manufacturer’s stated procedure andshall be within ±3 percent of actual. The pro-cedure described herein shall be performed aswell as any other procedures suggested bythe manufacturer of the spirometer beingused.

(v)(A) The first step in evaluating aspirogram for the FEV1 shall be to determinewhether or not the patient has performed thetest properly or as described in (2)(ii) above.From the three satisfactory tracings, theforced expiratory volume in one second(FEV1) shall be measured and recorded. Thelargest observed FEV1 shall be used in theanalysis, corrected to BPTS.

(B) Only MVV maneuvers which dem-onstrate consistent effort for at least 12 sec-onds shall be considered acceptable. Thelargest accumulated volume for a 12 secondperiod corrected to BPTS and multiplied byfive is to be reported as the MVV.


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Employment Standards Administration, Labor Pt. 718, App. C

APPENDIX C TO PART 718—BLOOD-GASTABLES

The following tables set forth the values tobe applied in determining whether total dis-ability may be established in accordancewith §§ 718.204(c)(2) and 718.305 (a), (c). Thevalues contained in the tables are indicativeof impairment only. They do not establish adegree of disability except as provided in§§ 718.204(c)(2) and 718.305 (a), (c) of this sub-

chapter, nor do they establish standards fordetermining normal alveolar gas exchangevalues for any particular individual.

A miner who meets the following medicalspecifications shall be found to be totallydisabled, in the absence of rebutting evi-dence, if the values specified in one of thefollowing tables are met:

(1) For arterial blood-gas studies per-formed at test sites up to 2,999 feet above sealevel:


750

20 CFR Ch. VI (4–1–98 Edition)Pt. 722

Arterial pCO2 (mm Hg)

ArterialpO2 equalto or lessthan (mm

Hg)

25 or below .......................................................... 7526 ......................................................................... 7427 ......................................................................... 7328 ......................................................................... 7229 ......................................................................... 7130 ......................................................................... 7031 ......................................................................... 6932 ......................................................................... 6833 ......................................................................... 6734 ......................................................................... 6635 ......................................................................... 6536 ......................................................................... 6437 ......................................................................... 6338 ......................................................................... 6239 ......................................................................... 6140–49 ................................................................... 60Above 50 .............................................................. (1)

1 Any value.

(2) For arterial blood-gas studies per-formed at test sites 3,000 to 5,999 feet abovesea level:



Hg)

25 or below .......................................................... 7026 ......................................................................... 6927 ......................................................................... 6828 ......................................................................... 6729 ......................................................................... 6630 ......................................................................... 6531 ......................................................................... 6432 ......................................................................... 6333 ......................................................................... 6234 ......................................................................... 6135 ......................................................................... 6036 ......................................................................... 5937 ......................................................................... 5838 ......................................................................... 5739 ......................................................................... 5640–49 ................................................................... 55Above 50 .............................................................. (2)

2 Any value.

(3) For arterial blood-gas studies per-formed at test sites 6,000 feet or more abovesea level:



Hg)

25 or below .......................................................... 6526 ......................................................................... 6427 ......................................................................... 6328 ......................................................................... 6229 ......................................................................... 6130 ......................................................................... 6031 ......................................................................... 5932 ......................................................................... 5833 ......................................................................... 5734 ......................................................................... 5635 ......................................................................... 5536 ......................................................................... 5437 ......................................................................... 53



Hg)

38 ......................................................................... 5239 ......................................................................... 5140–49 ................................................................... 50Above 50 .............................................................. (3)

3 Any value.

PART 722—CRITERIA FOR DETER-MINING WHETHER STATE WORK-MEN’S COMPENSATION LAWSPROVIDE ADEQUATE COVERAGEFOR PNEUMOCONIOSIS ANDLISTING OF APPROVED STATELAWS

INTRODUCTORY

Sec.722.101 Purpose and scope of this part.722.102 Definitions and use of terms.

PROCEDURE FOR DETERMINING WHETHER ASTATE LAW PROVIDES ADEQUATE COVERAGEFOR PNEUMOCONIOSIS

722.103 Application to the Secretary.722.104 Contents of application, supporting

documents.722.105 Initial action on the request.

CRITERIA: STANDARDS OF COVERAGE,ELIGIBILITY

722.110 Coverage generally.722.111 Miner.722.112 Widow, surviving divorced wife.722.113 Child.722.114 Parents, brothers, or sisters.

CRITERIA: CLAIMS FOR BENEFITS

722.115 Claims generally.722.116 Time limitations on filing claims.

CRITERIA: MEDICAL STANDARDS FOR DETER-MINING WHETHER MINER’S TOTAL DISABILITYOR DEATH WAS DUE TO PNEUMOCONIOSIS

722.117 Medical criteria—generally.722.118 Medical evidence.722.119 Medical presumptions.722.120 Total disability determination.722.121 Cause of death.

CRITERIA: ADMINISTRATIVE STANDARDS

722.122 Administrative standards—gen-erally.

722.123 Cessation of payment of benefits.722.124 Regulation of fees for legal services.

CRITERIA: GUARANTEE OF BENEFITS TOELIGIBLE INDIVIDUALS

722.126 Guarantee of benefits—generally.


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722.127 Voluntary and elective compensa-tion systems.

722.128 Responsible coal mine operators.722.129 Insurance, self insurance.722.130 State protections of benefits.722.131 Contributions by miners.722.132 Waiver of right to benefits.722.133 Retroactive coverage required.722.134 Residency requirements.

CRITERIA: AMOUNT OF BENEFITS: MEDICALBENEFITS

722.135 Amount of benefits, computation.722.136 Augmented benefits.722.137 Minimum benefit amounts.722.138 Offsets for Federal benefits prohib-

ited.722.139 Lump sum awards; settlement.722.140 Protection of benefits.722.141 Payment periods.722.142 Prompt payment of benefits.722.143 Medical benefits.722.144 Medical examinations, reexamina-

tions.722.145 Vocational rehabilitation.

ACTION BY THE SECRETARY

722.146 Standards for review of a Stateworkmen’s compensation law.

722.147 Action subsequent to review.722.148 Provisional approval.722.149 Judicial review.722.150 Reports.722.151 Removal from the Secretary’s list.722.152 The Secretary’s list.


SOURCE: 38 FR 8328, Mar. 30, 1973, unlessotherwise noted.

INTRODUCTORY

§ 722.101 Purpose and scope of thispart.

Section 421 of part C of title IV of theFederal Coal Mine Health and SafetyAct, as amended, provides that on andafter January 1, 1974, any claim forbenefits for death or total disabilitydue to pneumoconiosis shall be filedpursuant to the applicable State work-men’s compensation law, except thatduring any period when miners or theireligible surviving dependents are notcovered by a State workmen’s com-pensation law which provides adequatecoverage for pneumoconiosis, such per-sons shall be entitled to claim benefitsunder section 422 and related provi-sions of part C of title IV of such Act.

Section 421(b)(1) in part C of title IV ofthe Federal Coal Mine Health and Safe-ty Act, as amended, provides that aState workmen’s compensation lawshall not be deemed to provide ade-quate coverage for pneumoconiosisduring any period unless it is includedin the list of State laws (see § 722.152)found by the Secretary of Labor to pro-vide adequate coverage for pneumo-coniosis during such period. Section421(b)(2) of such Act provides that noState workmen’s compensation lawshall be included on such list duringany period unless such law is consist-ent with each of the criteria mandatedby paragraphs A through E of section421(b)(2) of the Act, as amended, andthat there are certain other provisions,regulations, or interpretations whichare consistent with the Longshore-men’s and Harbor Workers’ Compensa-tion Act, as amended (44 Stat. 1424, 86Stat. 1251, 33 U.S.C. 901 et seq.), as de-scribed in this part. This part 722 is de-signed to assure that any State lawwhich appears on the list herein de-scribed shall provide appropriateclaimants with adequate benefits fortotal disability or death due to pneu-moconiosis. The purpose of this part isto describe the procedures by which theSecretary shall determine whether anyState workmen’s compensation lawdoes, in fact, provide adequate cov-erage for death or disability due topneumoconiosis and further describeswith particularity the standards andcriteria to be applied by the Secretaryin making such determination.


(a) For purposes of this part exceptwhere the content clearly indicatesotherwise, the following definitionsapply:

(1) Act means title IV of the FederalCoal Mine Health and Safety Act of1969, 83 Stat. 795 (30 U.S.C. 901 et seq.),as amended by Pub. L. 92–302, 86 Stat.156, the Black Lung Benefits Act of1972.

(2) Longshoremen’s Act means theLongshoremen’s and Harbor Workers’Compensation Act (44 Stat. 1424, 86Stat. 1251 (33 U.S.C. 901 et seq.)), asamended by Pub. L. 92–576, 86 Stat.1251.


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20 CFR Ch. VI (4–1–98 Edition)§ 722.103

(3) Social Security Act means the So-cial Security Act (49 Stat. 620 (42U.S.C. 301 et seq.)), as amended fromtime to time.

(4) Department means the Departmentof Labor.

(5) Secretary means the Secretary ofLabor or a person authorized by him toperform his functions under section 421of the Act.

(6) State includes a State of theUnited States, the District of Colum-bia, the Commonwealth of Puerto Rico,the Virgin Islands, American Samoa,Guam, and the Trust Territory of thePacific Islands.

(7) Workmen’s compensation law meansthe law or laws of a State providing forpayment of compensation by employersto employees (and their dependents orsurvivors) for injury including occupa-tional disease, or death suffered in con-nection with the employment.

(8) State agency means, with respectto any State, the agency, department,or officer designated by the workmen’scompensation law of the State to ad-minister such law. In any case in whichmore than one agency participates inthe administration of a State work-men’s compensation law, the Governormay designate which of such agenciesshall be the State agency for purposesof this part.

(9) The Secretary’s list means the listpublished by the Secretary of Labor inthe FEDERAL REGISTER (see § 722.152)containing the names of those Stateswhich have in effect a workmen’s com-pensation law which provides adequatecoverage for death or total disabilitydue to pneumoconiosis.

(10) Pneumoconiosis means coal work-ers’ pneumoconiosis as defined in sec-tion 402(b) of the Act.

(b) Masculine gender includes thefeminine, and the singular includes theplural.

(c) No definition contained in thispart shall be deemed to derogate fromthe meaning of any term defined in theAct or any term elsewhere defined inthis subchapter B with respect thereto.

PROCEDURE FOR DETERMINING WHETHERA STATE LAW PROVIDES ADEQUATECOVERAGE FOR PNEUMOCONIOSIS

§ 722.103 Application to the Secretary.The Governor of any State or any

duly authorized State agency may, atany time after the effective date of thisrevised part 722, request that the Sec-retary include such State’s workmen’scompensation law on his list of thoseState workmen’s compensation lawsproviding adequate coverage for totaldisability and death due to pneumo-coniosis.

§ 722.104 Contents of application, sup-porting documents.

Each request that a State be includedon the Secretary’s list shall be in writ-ing and shall be accompanied by thefollowing documents and information:

(a) A copy of the State workmen’scompensation law and any other perti-nent State laws;

(b) A copy of any regulations eitherproposed or promulgated in final formwith respect to the administration ofthe State law or laws submitted;

(c) A copy of any administrative orcourt decision interpreting State lawsor regulations so as to bring such lawsor regulations in compliance with thestandards set forth in this part. If suchdecisions are published and reported inofficial or privately published reportersystems or in some other readily avail-able case reporter, it shall be permis-sible to refer to such decision by its ap-propriate citation in such case re-porter; and

(d) Each request shall be accom-panied by a written analysis completedby a duly authorized State official de-scribing by citation, explanation, orwith reference to the decisional law ofthe State, the appropriate provision orprovisions of such State’s workmen’scompensation law which bring it incompliance with each standard pre-scribed in this part 722.

§ 722.105 Initial action on the request.Upon receipt by the Secretary of a

request that a State be included on theSecretary’s list, action shall be taken


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to review such request. Each State lawsubmitted shall be reviewed in light ofthe specific standards and criteria setforth below.

CRITERIA: STANDARDS OF COVERAGE,ELIGIBILITY

§ 722.110 Coverage generally.The following §§ 722.111–722.114 de-

scribe the individuals who are eligibleto claim benefits for total disability ordeath due to pneumoconiosis under theAct. In order that a State workmen’scompensation law be deemed by theSecretary to provide adequate coveragefor total disability or death due topneumoconiosis, such State law shallinsure that such individuals shall beentitled to receive benefits under con-ditions in accordance with those de-scribed below.

§ 722.111 Miner.(a) An individual shall be entitled to

receive benefits for total disability dueto pneumoconiosis if he is a miner asdefined in this section and if such indi-vidual is totally disabled due to pneu-moconiosis (see §§ 722.117–722.120).

(b) Such individual shall be entitledto receive benefits until his death oruntil such disability ceases.

(c) For purposes of this part an indi-vidual is a miner if he is or was em-ployed in a coal mine.

(d) For purposes of this part, ‘‘Coalmine’’ means an area of land and allstructures, facilities, machinery, tools,equipment, shafts, slopes, tunnels, ex-cavations, and other property, real orpersonal, placed upon, under, or abovethe surface of such land by any person,used in, or to be used in, or resultingfrom the work of extracting in sucharea bituminous coal, lignite, or an-thracite, from its natural deposits inthe earth by any means or method, andthe work of preparing the coal so ex-tracted, and includes custom coal prep-aration facilities.

(e) Any State workmen’s compensa-tion law which does not separately de-fine miner or coal miner shall bedeemed adequate for purposes of thissection if such law contains a defini-tion or use of the terms employee,worker, or any other related termwhich is sufficiently broad to encom-

pass all individuals contemplated bythe term miner as defined in this sec-tion.

§ 722.112 Widow, surviving divorcedwife.

(a) An individual shall be entitled toclaim for and receive benefits as thewidow or surviving divorced wife of adeceased miner if:

(1) Such individual is not marriedand is the ‘‘widow’’ of such miner asdefined in section 402(e) of the Act; and

(2) Such miner’s death or total dis-ability at time of death was due topneumoconiosis (which, for purposes ofthe Act, includes any death of a minerwho was totally disabled by pneumo-coniosis or was receiving benefits forsuch disability at the time of hisdeath).

(b) A widow or surviving divorcedwife shall be entitled to receive bene-fits until she remarries, or dies, or herentitlement otherwise ceases.

§ 722.113 Child.

(a) An individual shall be entitled toclaim for and receive benefits if:

(1) Such individual is a child, as de-fined in section 402(g) of the Act (in-cluding a stepchild) of a deceasedminer or of the widow of a miner; andif

(2) Such individual was dependentupon the deceased miner or widow forhis support; and if

(3) Such deceased parent,(i) If a miner, was receiving pneumo-

coniosis benefits at the time of hisdeath, or his death was due to pneumo-coniosis, or at the time of his deathwas totally disabled by pneumo-coniosis; or

(ii) If a widow, was receiving pneu-moconiosis benefits at the time of herdeath.

(b) A child or stepchild shall be enti-tled to receive benefits until one of thefollowing events first occurs:

(1) The child dies;(2) The child marries;(3) The child attains age 18, unless(i) He is a ‘‘full time’’ student as de-

fined in section 202(a)(7) of the SocialSecurity Act, or a ‘‘student’’ as definedin section 8101(7) of title 5, UnitedStates Code, in which case such child’s


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20 CFR Ch. VI (4–1–98 Edition)§ 722.114

or stepchild’s eligibility is extendeduntil he reaches age 23; or unless

(ii) He is under a disability as definedin section 223(d) of the Social SecurityAct and such disability began before heattained age 18 (see 202(d)(1)(B)(ii) ofthe Social Security Act).

(c) A child or stepchild is not entitledto claim benefits for any month forwhich a widow of a miner establishesentitlement to benefits.

§ 722.114 Parents, brothers, or sisters.(a) An individual shall be entitled to

claim for and receive benefits if:(1) Such individual is the parent,

brother, or sister of a deceased miner;and if

(2) Such individual, for not less than1 year prior to the miner’s death, wasliving in the same household as theminer and was totally dependent onthe miner for support; and if

(3) The deceased miner was entitledto benefits at the time of his death, orhis death is determined to have beendue to pneumoconiosis, or at the timeof his death was totally disabled bypneumoconiosis; and,

(4) In the case of a parent, if the de-ceased miner was not survived by awidow or child at the time of his death;and,

(5) In the case of a brother or sister,if the deceased miner was not survivedby a widow, child or parent at the timeof his death; and,

(6) In the case of a brother, he also isunder 18 years of age unless he is a full-time student or under a disability asdescribed in § 722.113(b)(3) in which casehis eligibility shall be extended as isappropriate.

(b) No benefits to a sister or brothershall be payable for any month begin-ning with the month in which he or shereceives support from his or her spouse,or marries.

(c) The individuals described in thissection shall be eligible to claim for orreceive benefits until such time as therequirements for eligibility cease.

CRITERIA: CLAIMS FOR BENEFITS

§ 722.115 Claims generally.In order to assure that a State work-

men’s compensation law will provideadequate coverage for total disability

or death due to pneumoconiosis, suchlaw shall contain or shall be imple-mented by available rules and regula-tions which establish a comprehensiveand viable scheme for the filing andprocessing of claims. If filing and proc-essing procedures in any State are sub-stantially informal, such State shallinclude in its application to be in-cluded on the Secretary’s list, a full de-scription of such State’s filing andprocessing procedures, copies of anymaterial disseminated to individuals toassist them in pursuing a claim, and afull description, including exemplarycases, of the time periods required bysuch State to fully process such claims.No State workmen’s compensation lawshall be included on the Secretary’slist if it appears that any class ofclaimants shall be subject to inordi-nate delays, unnecessarily protractedproceedings, unnecessarily difficult re-quirements of proof, or other unwar-ranted difficulties in the pursuit of aclaim.

§ 722.116 Time limitations on filingclaims.

(a) No State workmen’s compensa-tion law shall be deemed to provideadequate coverage for total disabilityor death due to pneumoconiosis unlessthe determination of claims filed pur-suant to it shall be permitted:

(1) In the case of claims for disabilitybenefits, if filed within 3 years of thedate of the discovery of total disabilitydue to pneumoconiosis; or

(2) In the case of claims for deathbenefits, if filed within 3 years of thedate of such death;

(3) And in the case of any claim forbenefits predicated upon the presump-tion contained in section 411(c)(4) ofpart B of title IV of the Act (see§ 722.119);

(i) If in the case of total disabilitydue to pneumoconiosis it is filed within3 years from the date of last exposedemployment in a coal mine; or

(ii) If in the case of death from a res-piratory or pulmonary impairment forwhich benefits would be payable undersection 411(c)(4) of the Act, incurred asa result of employment in a coal mine,it is filed within 15 years from the dateof last exposed employment in a coalmine.


755


(b) Any State workmen’s compensa-tion law which provides longer periodsfor filing a claim subsequent to theevents specified in this section shall bedeemed to have met the requirementsdescribed herein. Any State workmen’scompensation law which providesshorter time limitations on filing aclaim, or which commences the periodfor filing a claim beginning with anevent which is more restrictive thanthose specified in this section, shall bedeemed not to have met the require-ments of this section.

CRITERIA: MEDICAL STANDARDS FOR DE-TERMINING WHETHER MINER’S TOTALDISABILITY OR DEATH WAS DUE TOPNEUMOCONIOSIS

§ 722.117 Medical criteria—generally.Section 402(f) of the Act authorizes

the Secretary of Health, Education,and Welfare to establish and promul-gate standards and medical criteria fordetermining whether a miner is totallydisabled due to pneumoconiosis, wheth-er a miner’s death was due to pneumo-coniosis, and whether a miner was to-tally disabled by pneumoconiosis atthe time of his death. Section421(b)(2)(C) of the Act requires that inorder for a State to be included on theSecretary’s list, such State must pro-mulgate standards for determiningdeath or total disability due to pneu-moconiosis which are substantiallyequivalent to those promulgated by theSecretary of Health, Education, andWelfare (see 20 CFR part 410, subpartD) and adopted pursuant to sections415(a) and 422(c) of the Act by the Sec-retary of Labor in respect of claimsfiled subsequent to June 30, 1973 (see 20CFR part 718). Therefore, no Stateshall be included on the Secretary’slist if it does not by statute or pub-lished formal rules and regulations pro-vide standards which are substantiallyequivalent to or less restrictive thanthose standards published by the Sec-retary of Health, Education, and Wel-fare in subpart D of 20 CFR part 410 asamended on September 30, 1972 (37 FR20641–20645).

§ 722.118 Medical evidence.No State workmen’s compensation

law shall be included on the Sec-

retary’s list unless such law or regula-tions promulgated thereunder providethat no claim shall be denied solely onthe basis of a chest roentgenogramand, that in determining the validity ofclaims all evidence shall be considered,including, where relevant, medicaltests such as blood gas studies, X-rayexamination, electrocardiogram, pul-monary function studies, or physicalperformance tests, and any medicalhistory, evidence pertaining to futureemployability, evidence submitted by aminer’s physician, or a miner’s wife’saffidavits, and in the case of a deceasedminer, autopsy, biopsy, or other appro-priate affidavits of persons with knowl-edge of the miner’s physical condition,and any other supportive materials.

§ 722.119 Medical presumptions.Section 411(c) of part B of title IV of

the Act establishes a series of presump-tions which shall be available to claim-ants for purposes of determiningwhether a miner’s death or total dis-ability was due to pneumoconiosis. NoState workmen’s compensation lawshall be included on the Secretary’slist if it does not provide or if regula-tions promulgated pursuant to suchState law do not make available toclaimants presumptions which areequivalent to or less restrictive thanthose presumptions contained in sec-tion 411(c) of the Act as set forthbelow:

(a) If a miner who is suffering or suf-fered from pneumoconiosis was em-ployed for 10 years or more in one ormore coal mines, there shall be a re-buttable presumption that his pneumo-coniosis arose out of such employment;

(b) If a deceased miner was employedfor 10 years or more in one or morecoal mines and died from a respirabledisease, there shall be a rebuttable pre-sumption that his death was due topneumoconiosis;

(c) If a miner is suffering or sufferedfrom a chronic dust disease of the lungwhich (1) when diagnosed by chestroentgenogram, yields one or morelarge opacities (greater than one centi-meter in diameter) and would be classi-fied in category A, B, or C in the Inter-national Classification of Radiographsof the Pneumoconioses by the Inter-national Labor Organization, (2) when


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20 CFR Ch. VI (4–1–98 Edition)§ 722.120

diagnosed by biopsy or autopsy, yieldsmassive lesions in the lungs, or (3)when diagnosis is made by othermeans, would be a condition whichcould reasonably be expected to yieldresults described in paragraph (c) (1) or(2) of this section if diagnosis had beenmade in the manner prescribed in para-graph (c) (1) or (2) of this section, thenthere shall be an irrebuttable presump-tion that he is totally disabled due topneumoconiosis or that his death wasdue to pneumoconiosis, or that at thetime of his death he was totally dis-abled by pneumoconiosis, as the casemay be; and

(d) If a miner was employed for 15years or more before July 1, 1971, inone or more underground coal mines,and if there is a chest roentgenogramsubmitted in connection with suchminer’s, his widow’s, his child’s, hisparent’s, his brother’s, his sister’s, orhis dependent’s claim and it is inter-preted as negative with respect to therequirements of paragraph (c) of thissection, and if other evidence dem-onstrates the existence of a totally dis-abling respiratory or pulmonary im-pairment, then there shall be a rebut-table presumption that such miner istotally disabled due to pneumo-coniosis, that his death was due topneumoconiosis, or that at the time ofhis death he was totally disabled bypneumoconiosis. In the case of a livingminer, a wife’s affidavit may not beused by itself to establish the presump-tion. A State shall not apply all or aportion of the requirement of this para-graph that the miner work in an under-ground mine where it determines thatconditions of a miner’s employment ina coal mine other than an undergroundmine were substantially similar to con-ditions in an underground mine. Suchpresumption may be rebutted only byestablishing that (1) such miner doesnot, or did not, have pneumoconiosis,or that (2) his respiratory or pul-monary impairment did not arise outof, or in connection with, employmentin a coal mine.

§ 722.120 Total disability determina-tion.

The Act requires that benefits bepaid for total disability of a miner ifpneumoconiosis prevents him from en-

gaging in gainful employment requir-ing the skills and abilities comparableto those of any employment in a mineor mines in which he previously en-gaged with some regularity and over asubstantial period of time. No Stateworkmen’s compensation law shall beincluded on the Secretary’s list if suchlaw prohibits a finding that a miner istotally disabled solely on the basis ofhis ability to engage in gainful noncoalmine related employment, except thatin cases where a miner engaged innoncoal mine related employment uti-lizes skills comparable to those re-quired in his coal mine employment, itmay be found that such miner is notentitled to benefits for total disabilitydue to pneumoconiosis.

§ 722.121 Cause of death.Section 421 of the Act requires the

Secretary to find, before including aState workmen’s compensation law inhis listing of laws which provide ade-quate coverage for pneumoconiosis,that such law assures payment of bene-fits for total disability or death of aminer, determined under standardssubstantially equivalent to those es-tablished under part B of title IV of theAct, in all cases where either suchtotal disability or such death was dueto pneumoconiosis. Accordingly, in thecase of death benefits, such benefitsmust be paid whether the miner’sdeath or his total disability at the timeof death was due to pneumoconiosis.Thus, sections 401 and 430 of the Act re-quire that benefits be paid (a) for deathdue to pneumoconiosis and (b) fordeath due to any cause if the minerwas totally disabled by pneumoconiosisat the time of his death. No Stateworkmen’s compensation law shall beincluded on the Secretary’s list unlessit contains a provision or provisionsequivalent to those described in thissection.

CRITERIA: ADMINISTRATIVE STANDARDS

§ 722.122 Administrative standards—generally.

In order to insure that each claimantfor pneumoconiosis benefits under aState workmen’s compensation law beafforded full due process of law, includ-ing notice and opportunity to be heard


757


on all matters materially affectingsuch claimant’s claim, no State work-men’s compensation law shall be in-cluded on the Secretary’s list unless itprovides, or regulations promulgatedpursuant to such law provide (a) that aclaimant in a contested case shall havea right to a full adversary hearing toresolve contested issues of fact or law,(b) that a claimant shall be notified ofand shall have a means of legal re-course by right in the event that anyadverse action is taken in respect ofhis claim, and (c) that a claimant shallin appropriate cases be entitled to havehis claim finally adjudicated by an ap-pellate court of the State.

§ 722.123 Cessation of payment of ben-efits.

No State workmen’s compensationlaw shall be included on the Sec-retary’s list unless such law provides,or regulations promulgated pursuantto such law provide, that in the eventthe payment of benefits to any bene-ficiary is terminated or suspended forany reason, such beneficiary shall begiven prior notice thereof and shallhave an opportunity to be heard in aformal proceeding before an appro-priate adjudication officer of the Statein respect of such suspension or termi-nation, and that such investigations,including medical examination, shallbe undertaken as will properly protectthe rights of all parties.

§ 722.124 Regulation of fees for legalservices.

Unrestricted fees for legal servicesincurred by a claimant in the pursuitof a claim undermine the intent of Con-gress expressed in the enactment oftitle IV of the Act. Section 28 (33 U.S.C.928) of the Longshoremen’s Act, as in-corporated by section 422(a) of the Act,requires the Secretary to exercise rea-sonable control over professional feesfor services incurred by a claimant inthe pursuit of a claim. Accordingly, noState workmen’s compensation lawshall be included on the Secretary’slist if such law permits unrestricted orunreasonable fees for services renderedin the pursuit of a claim to be chargedto a claimant.

CRITERIA: GUARANTEE OF BENEFITS TOELIGIBLE INDIVIDUALS

§ 722.126 Guarantee of benefits—gen-erally.

It is the intent of the Act to insurethat every eligible individual who hasproven his entitlement to benefits fortotal disability or death due to pneu-moconiosis shall be guaranteed suchbenefits whether or not there is in ex-istence an employer, coal mine opera-tor, or insurance carrier who is or maybe adjudicated liable for the paymentof such benefits. No State workmen’scompensation law shall be included onthe Secretary’s list unless such law ex-plicitly provides that every claimantwho is, based upon the medical evi-dence and the evidence of such claim-ant’s identity as a miner or eligible re-lation or dependent, entitled to receivebenefits for total disability or deathdue to pneumoconiosis shall be paidsuch benefits either by a responsiblecoal mine operator or employer or suchoperator or employer’s insurance car-rier, or by the State from its generalrevenue or whatever funds are avail-able for such purposes. A State mustbear the ultimate liability for the pay-ment of benefits to an entitled individ-ual in all cases where no other sourceof benefits is available to such claim-ant.

§ 722.127 Voluntary and elective com-pensation systems.

A State workmen’s compensation lawmay be included on the Secretary’slist, notwithstanding the fact thatsuch law permits voluntary or electiveparticipation by an employer or coalmine operator in any program to in-sure the payment of benefits for totaldisability or death due to pneumo-coniosis: Provided, That there is in ef-fect in such State an alternative sys-tem to guarantee that all benefits in-cluding medical benefits shall be paid.

§ 722.128 Responsible coal mine opera-tors.

Sections 421 and 422 of part C of titleIV as well as the legislative history ofthe Act, indicate that Congress in-tended the coal mine operators in theseveral States to bear as fully as pos-sible the liability for the payment of


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20 CFR Ch. VI (4–1–98 Edition)§ 722.129

pneumoconiosis benefits. In accordancewith this intent Congress in section421(b)(2)(E) of the Act has required thatno State workmen’s compensation lawshall be included on the Secretary’slist, unless such law provides that acoal mine operator who acquired his orits mine or substantially all of the as-sets thereof from a person (hereinafterreferred to in this section as a ‘‘prioroperator’’) who was an operator of suchmine on or after December 30, 1969,shall be liable for and shall secure thepayment of all benefits which wouldhave been payable by the prior opera-tor with respect to miners previouslyemployed in such mine if the acquisi-tion had not occurred and the prior op-erator had continued to operate suchmine, and further that such prior oper-ator shall not be relieved of his or itsliability for the payment of pneumo-coniosis benefits in the event that hissuccessor to such mine is for any rea-son unable to discharge his liability(see section 422(i) of the Act).

§ 722.129 Insurance, self insurance.(a) A State workmen’s compensation

law may, in appropriate circumstances,be excluded from the Secretary’s list ifsuch law permits coal mine operatorsor employers to obtain commercialcontracts of insurance to guarantee thepayment of pneumoconiosis benefitsand such State law does not require (1)that such commercial insurer be au-thorized under the laws of the State toinsure workmen’s compensation, and(2) that each such commercial contractof insurance contain a provision thatinsolvency or bankruptcy of the in-sured or discharge therein (or both)shall not relieve the insurance carrierfrom liability for all current and futurepayments of benefits due an entitledindividual.

(b) A State workmen’s compensationlaw may, in the discretion of the Sec-retary, be excluded from the Sec-retary’s list if it is apparent that self-insurance arrangements permittedunder such State law in general are notsufficient to insure the uninterruptedpayment of benefits to an entitled indi-vidual.

(c) Contribution or apportionment ofliability among insurers and/or self-in-surers, if so provided for by a State

workmen’s compensation law, shall notbe a basis for exclusion of such lawfrom the Secretary’s list.

(d) This section shall not be con-strued to require that a State work-men’s compensation law guarantee thepayment of pneumoconiosis benefits bymeans of commercial insurance or self-insurance programs.

§ 722.130 State protections of benefits.No State workmen’s compensation

law shall be included on the Sec-retary’s list, unless such State law es-tablishes and provides a means of ob-taining revenues to insure that pneu-moconiosis benefits shall be paid to en-titled individuals for whom no othersource of benefits is available.

§ 722.131 Contributions by miners.No State workmen’s compensation

law shall be included on the Sec-retary’s list if such law permits or re-quires miners to provide funds for thepayment of insurance premiums, thesupport for a self-insurance fund, orthe support for any State fund estab-lished for the purpose of insuring thepayment of pneumoconiosis benefits.

§ 722.132 Waiver of right to benefits.No State workmen’s compensation

shall be included on the Secretary’slist if such law permits a miner orother prospective claimant to by anymeans waive, in whole or in part, suchindividual’s rights to receive full bene-fits for total disability or death due topneumoconiosis. However, under appro-priate circumstances, a waiver may bepermitted in respect of the liability ofany individual coal mine operator oremployer if such State workmen’s com-pensation law contains a provision orprovisions which otherwise insure thatbenefits shall be available to be paid tosuch claimant from some other ap-proved source.

§ 722.133 Retroactive coverage re-quired.

No State workmen’s compensationlaw shall be included on the Sec-retary’s list if such law prohibits thefiling of or does not provide for benefitsin respect of an otherwise timely (see§ 722.116) and valid claim solely on thegrounds that the miner on whose total


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disability or death the claim is predi-cated was not employed in a coal minein such State on the effective date ofsuch State’s law.

§ 722.134 Residency requirements.No State workmen’s compensation

law shall be included on the Sec-retary’s list if such law requires thatthe claimant be domiciled in or a resi-dent of such State at the time theclaim is filed. This section shall not beconstrued to prohibit a State from re-fusing to process a claim for benefits inany case in which the miner on whosetotal disability or death a claim ispredicated, was not exposed for a rea-sonable period of time in such State.

CRITERIA: AMOUNT OF BENEFITS:MEDICAL BENEFITS

§ 722.135 Amount of benefits, computa-tion.

(a) Section 412(a) of the Act setsforth the amount of benefits for totaldisability or death due to pneumo-coniosis to which an individual shall beentitled, the extent of such entitle-ment and persons so entitled. No Stateworkmen’s compensation law shall beincluded on the Secretary’s list if itdoes not, in every case, provide benefitamounts which are substantially equiv-alent to or greater than those amountsto which an eligible individual wouldbe entitled under section 412(a).

(b) No State workmen’s compensa-tion law which arbitrarily limits thetotal amount of benefits to which aneligible individual may be entitled oversuch individual’s lifetime shall be in-cluded on the Secretary’s list.

(c) No State workmen’s compensa-tion law which subsequent to the effec-tive date of this part 722 is amended toreduce the amount of benefits to whichan eligible individual is entitled fortotal disability or death due to pneu-moconiosis shall be included on theSecretary’s list.

§ 722.136 Augmented benefits.As set forth in section 412(a) of the

Act the amount of benefits to which abeneficiary is entitled may be aug-mented by up to 100 percent based uponthe number of persons (wife, children,parents, brothers, sisters) dependent

upon such beneficiary for support. NoState workmen’s compensation lawshall be excluded from the Secretary’slist because it does not contain similaraugmentation provisions if such lawotherwise insures that beneficiariesand their dependents shall receive ben-efits substantially equivalent to orgreater than the amounts such personswould receive under section 412(a) ofthe Act.

§ 722.137 Minimum benefit amounts.No State workmen’s compensation

law shall be included on the Sec-retary’s list if it does not guaranteethat the minimum amount of benefitspayable to any beneficiary or depend-ent shall be substantially equivalent toor greater than the amount to whichsuch beneficiary or dependent would beentitled if the claim were paid undersection 412(a) of the Act, notwithstand-ing any provision contained in theState workmen’s compensation lawwhich requires the computation of ben-efit amounts based upon the miner’saverage weekly or monthly wage.

§ 722.138 Offsets for Federal benefitsprohibited.

No State’s workmen’s compensationlaw shall be included on the Sec-retary’s list if such law requires thatpneumoconiosis benefits payable toany individual shall be offset by anyamount to which such individual is ormay be entitled on account of total dis-ability or death due to pneumoconiosisunder any law of the United States.

§ 722.139 Lump sum awards; settle-ment.

No State workmen’s compensationlaw shall be excluded from the Sec-retary’s list solely on the grounds thatsuch law permits lump sum awards, orcommutation or settlement of claimsor awards: Provided, That (a) such lumpsum award or commutation or settle-ment is approved by an appropriateState agency; (b) such lump sumaward, commutation, or settlement isequal to the present value of futurebenefits payments commuted, com-puted at no less than 4 percent truediscount compounded annually; (c) ac-cepted and reliable tables of prob-abilities are used for the purpose of


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20 CFR Ch. VI (4–1–98 Edition)§ 722.140

computing the present value of futurebenefits payments commuted and (d)no lump sum award, commutation, orsettlement, shall be construed to de-prive a miner of his right to futuremedical benefits or services under suchState law.

§ 722.140 Protection of benefits.

No State workmen’s compensationlaw shall be included on the Sec-retary’s list unless such State law con-tains a provision or provisions:

(a) Which declare invalid any assign-ment or release of benefits or futurebenefits payable;

(b) Which exempt all current and fu-ture benefits from all claims of credi-tors, and from levy, execution, attach-ment, garnishment, or any other rem-edy for recovery or collection of a debt,which exemption may not be waived;and

(c) Which insure that any person en-titled to benefits for total disability ordeath due to pneumoconiosis shall havea lien against the assets of the respon-sible insurance carrier or coal mine op-erator for such benefits without limitof amount, and shall, upon insolvency,bankruptcy, or reorganization in bank-ruptcy proceedings of the insurer or op-erator, or both, be entitled to pref-erence and priority in the distributionof the assets of such insurer or opera-tor, or both. This paragraph shall notbe construed to require the creation ofa statutory lien against the assets ofany State fund.

§ 722.141 Payment periods.

No State workmen’s compensationlaw shall be included on the Sec-retary’s list unless such law providesthat compensation payable on accountof total disability or death due to pneu-moconiosis shall be paid not less fre-quently than once each month.

§ 722.142 Prompt payment of benefits.

No State workmen’s compensationlaw shall be included on the Sec-retary’s list unless such law providessome means such as judicial enforce-ment whereby an eligible claimantshall have effective recourse to insurethat benefits due such claimant arepaid fully and promptly.

§ 722.143 Medical benefits.

(a) Section 422(a) of the Act by incor-porating section 7(a) of the Longshore-men’s Act (33 U.S.C. 907(a)) requiresthat medical services and supplies befurnished to a miner totally disabledby pneumoconiosis. No State law shallbe included on the Secretary’s list un-less such State law guarantees thatevery miner who is totally disabled dueto pneumoconiosis shall be furnished,at no cost to the miner, with such med-ical, surgical, and other attendance ortreatment, nurse and hospital service,medicine, crutches, and apparatus, forsuch period as the nature of the dis-ability may require.

(b) No State law shall be included onthe Secretary’s list if such law placesarbitrary time or dollar limitations ona totally disabled miner’s entitlementto the medical benefits described inthis section.

§ 722.144 Medical examinations, reex-aminations.

No State workmen’s compensationlaw shall be included on the Sec-retary’s list unless such State law pro-vides that medical examinations or re-examinations conducted in respect of aclaim at the request or order of an in-surance carrier, coal mine operator,employer, or State agency shall be con-ducted at the expense of the insurancecarrier, coal mine operator, employer,or State agency as the case may be. Inno event shall the cost of such exam-ination or re-examination be charge-able to the claimant.

§ 722.145 Vocational rehabilitation.

(a) Section 422(a) of the Act, by in-corporating section 39 of the Long-shoremen’s and Harbor Workers’ Com-pensation Act requires the Secretaryto arrange for and direct the voca-tional rehabilitation of miners totallydisabled for work in or around a coalmine. No State workmen’s compensa-tion law shall be included on the Sec-retary’s list unless such State lawmakes available to miners totally dis-abled for such work such vocational re-habilitation facilities as are providedby the State under its workmen’s com-pensation programs to disabled em-ployees in general.


761


(b) No State workmen’s compensa-tion law shall be included on the Sec-retary’s list if the use of vocational re-habilitation facilities in such Statewould result in a partial or total loss ofbenefits to such miner.

ACTION BY THE SECRETARY

§ 722.146 Standards for review of aState workmen’s compensation law.

(a) The standards for determiningwhether a State workmen’s compensa-tion law provides adequate coverage fortotal disability or death due to pneu-moconiosis as set forth in this part aremandatory, in that compliance there-with is prerequisite to inclusion of anysuch law on the Secretary’s list. Suchstandards have been determined to bethe minimum requirements that aState workmen’s compensation lawmust meet in order that the intent ofsection 421 of the Act be carried out.After review of the information sub-mitted by a State pursuant to § 722.104and any other information made avail-able to the Department of Labor, theSecretary shall determine whether aState workmen’s compensation lawmeets all of such requirements.

(b) Notwithstanding any other provi-sion of this part, if it is shown, despitethe language contained in a Stateworkmen’s compensation law, that be-cause of judicial or administrative de-cision, or duly promulgated rules andregulations, or common practice in theState, such law does not provide ade-quate coverage for total disability ordeath due to pneumoconiosis, such lawshall be excluded from the Secretary’slist.

(c) Notwithstanding any other provi-sion of this part, if it is found that anyprovision contained in a State’s work-men’s compensation laws or generallaws serves or would be likely to serveto diminish the coverage available insuch State for total disability or deathdue to pneumoconiosis, such State’sworkmen’s compensation law may beexcluded from the Secretary’s list.

§ 722.147 Action subsequent to review.(a) If it is found that a State work-

men’s compensation law during any pe-riod provides adequate coverage fortotal disability or death due to pneu-

moconiosis, such law shall be includedfor such period on the Secretary’s listto be published in the FEDERAL REG-ISTER and set forth in § 722.152 pursuantto section 421(b)(1) of the Act. The ap-propriate State agency shall be noti-fied of the Secretary’s action.

(b) If it is found that a State work-men’s compensation law submitted forconsideration pursuant to § 722.103 doesnot provide adequate coverage for totaldisability or death due to pneumo-coniosis during any period, the appro-priate State agency shall be notified ofsuch decision and, if such law has pre-viously been on the Secretary’s list, ofthe fact that the decision requires dele-tion of such law from the list duringsuch period. Such notice shall containa brief statement of reasons enumerat-ing the provision or provisions of theState’s law which are unacceptable.

(c) In the event of a denial of a re-quest that a State workmen’s com-pensation law be included on the Sec-retary’s list, or of a decision to deletea previously listed law from the list,the appropriate State agency shallhave the right to request the Secretaryto reconsider his action. Such requestshall be accompanied by a brief ormemorandum in support thereof.

§ 722.148 Provisional approval.

The Secretary may, in his discretion,provisionally approve a State’s requestthat its workmen’s compensation lawbe included on the Secretary’s listpending the final promulgation of rulesand regulations or the effective date ofcertain amendments to the State’s law.Notice of such provisional approvalshall be given to the appropriate Stateagency, but such State’s workmen’scompensation law shall not be pub-lished on the Secretary’s list in theFEDERAL REGISTER until such regula-tions or amendments are effective.

§ 722.149 Judicial review.

The action by the Secretary in in-cluding or failing to include any Stateworkmen’s compensation law on theSecretary’s list shall be subject to judi-cial review exclusively in the U.S.Court of Appeals for the circuit inwhich the State is located or in theU.S. Court of Appeals for the District


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20 CFR Ch. VI (4–1–98 Edition)§ 722.150

of Columbia (see section 421(b)(2)(f) ofthe Act).

§ 722.150 Reports.The Secretary shall from time to

time require that each State which hasbeen included on the Secretary’s listsubmit reports, data, or other informa-tion to the Secretary concerning theadministration and operation of theState’s workmen’s compensation lawwith respect to total disability ordeath due to pneumoconiosis.

§ 722.151 Removal from the Secretary’slist.

At any time after a State’s work-men’s compensation law has been in-cluded on the Secretary’s list suchState’s law may be removed from thelist if it appears that under such lawadequate coverage for total disabilityor death due to pneumoconiosis is notbeing provided. Such removal actionshall be taken only after notice and anopportunity to be heard has been af-forded such State. In the event aState’s workmen’s compensation law isremoved from the Secretary’s list theconsequences of such removal onclaims for pneumoconiosis benefitsfiled in that State shall be determinedby the Secretary.

§ 722.152 The Secretary’s list.(a) In order to provide a ready ref-

erence source for any person interestedin knowing at any given time which, ifany, States’ laws met the currently ap-plicable criteria for approval, it hasbeen determined that provision shouldbe made for listing such States in theCode of Federal Regulations. Accord-ingly, the Secretary’s list of thoseStates having in effect a workmen’scompensation law which provides ade-quate coverage for total disability ordeath due to pneumoconiosis, as pub-lished in the FEDERAL REGISTER pursu-ant to section 421(b)(1) of the Act, ap-pears in paragraph (b) of this section.When first published on September 7,1972 (37 FR 18076; see also 37 FR 21429),as provided by the Act, the documentlisted no such State because there wasno State workmen’s compensation lawwhich had been found to provide ade-quate coverage for total disability ordeath due to pneumoconiosis. The Sec-

retary’s list shall be republished in theFEDERAL REGISTER with amendmentsfrom time to time as is necessary.

(b) The Secretary, upon examinationof State workmen’s compensation lawspursuant to the provisions of section421 of the Federal Coal Mine Healthand Safety Act of 1969, as amended, and§§ 722.101—722.151, has found that theworkmen’s compensation law of each ofthe following listed States, for the pe-riod from the date shown in the listuntil such date as the Secretary maymake a contrary determination, pro-vides adequate coverage for pneumo-coniosis:

State Period commencing

None ————————————————————

PART 725—CLAIMS FOR BENEFITSUNDER PART C OF TITLE IV OFTHE FEDERAL MINE SAFETY ANDHEALTH 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.

Subpart B—Persons Entitled to Benefits,Conditions, and Duration of Entitlement

725.201 Who is entitled to benefits; contentsof this subpart.

CONDITIONS AND DURATION OF ENTITLEMENT

725.202 Miner defined; condition of entitle-ment, miner.

725.203 Duration of entitlement; miner.

BENEFITS ON ACCOUNT OF LIVING DEPENDENTS(AUGMENTED BENEFITS)

725.204 Determination of relationship;spouse.

725.205 Determination of dependency;spouse.

725.206 Determination of relationship; di-vorced spouse.

725.207 Determination of dependency; di-vorced 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 relation-

ship and dependency of spouse or childfor purposes of augmentation of benefits.


763

Employment Standards Administration, Labor Pt. 725

SURVIVORS’ ENTITLEMENT

725.212 Conditions of entitlement; survivingspouse or surviving divorced spouse.

725.213 Duration of entitlement; survivingspouse or surviving divorced spouse.

725.214 Determination of relationship; sur-viving spouse.

725.215 Determination of dependency; sur-viving spouse.

725.216 Determination of a relationship; sur-viving divorced spouse.

725.217 Determination of dependency; sur-viving 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; par-

ent, brother, or sister.725.225 Determination of dependency; par-

ent, brother, or sister.725.226 ‘‘Good cause’’ for delayed filing of

proof of support.725.227 Time of determination of relation-

ship and dependency of survivors.725.228 Effect of conviction of felonious and

intentional homicide on entitlement tobenefits.

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 house-hold,’’ and ‘‘living in the miner’s house-hold,’’ 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 consid-

ered a claim.725.306 Withdrawal of a claim.725.307 Cancellation of a request for with-

drawal.725.308 Time limits for filing claims.725.309 Duplicate claims.725.310 Modification of awards and denials.725.311 Communications with respect to

claims; time computations.

Subpart D—Adjudication of Claims;Adjudication Officers

725.350 Who are the adjudication officers.725.351 Powers of adjudication officers.

725.352 Disqualification of adjudication offi-cer.

PARTIES AND REPRESENTATIVES

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.725.401 Claims development—general.725.402 Approved State workers’ compensa-

tion law.725.403 Requirement to file under State

workers’ compensation law—section 415claims.

725.404 Development of evidence—general.725.405 Development of medical evidence;

scheduling of medical examinations andtests.

725.406 Medical examinations and tests.725.407 Additional medical evidence.725.408 Refusal to submit to medical exami-

nations or tests.725.409 Denial of a claim by reason of aban-

donment.

ADJUDICATION BY THE DEPUTY COMMISSIONER

725.410 Initial findings by the deputy com-missioner.

725.411 Adjudication upon initial findings ofeligibility and no operator responsibil-ity.

725.412 Identification and notification of re-sponsible operator.

725.413 Operator’s response to notification.725.414 Development of operator’s evidence,

claimant’s rebuttal evidence.725.415 Action by the deputy commissioner

after development of operator’s evidence.725.416 Conferences.725.417 Action at the conclusion of con-

ference.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.

Subpart E—Hearings

725.450 Right to a hearing.725.451 Request for hearing.725.452 Type of hearing; parties.725.453 Notice of hearing.725.453A Time and place of hearing.725.454 Change of time and place for hear-

ing; transfer of cases.725.455 Hearing procedures; generally.725.456 Introduction of documentary evi-

dence.


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20 CFR Ch. VI (4–1–98 Edition)Pt. 725

725.457 Witnesses.725.458 Depositions; interrogatories.725.459 Witness fees.725.459A Oral argument and written allega-

tions.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 Re-

view Board.725.482 Judicial review.725.483 Costs in proceedings brought with-

out reasonable grounds.

Subpart F—Responsible Coal MineOperators

GENERAL PROVISIONS

725.490 Statutory provisions and scope.725.491 Operator defined.725.492 Responsible operator defined.725.493 Criteria for identifying a responsible

operator.725.494 Insurance coverage.725.495 Penalty for failure to insure.725.496 Special claims transferred to the

Trust Fund.725.497 Procedures in special claims trans-

ferred to the Trust Fund.

Subpart G—Payment of Benefits

725.501 Payment provisions generally.725.502 Manner of payment; payment peri-

ods.725.503 Date from which benefits are pay-

able.725.503A Payments to a claimant employed

as a miner.725.504 Payees.725.505 Payment on behalf of another;

‘‘legal guardian’’ defined.725.506 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 aug-

mentation portion of benefit.725.515 Assignment and exemption from

claims of creditors.

BENEFIT RATES

725.520 Computation of benefits.725.521 Commutation of payments; lump

sum awards.725.522 Payments prior to final adjudica-

tion.

SPECIAL PROVISIONS FOR OPERATORPAYMENTS

725.530 Operator payments; generally.725.531 Receipt for payment.725.532 Suspension, reduction, or termi-

nation of payments.

INCREASES AND REDUCTIONS OF BENEFITS

725.533 Modification of benefits amounts;general.

725.534 Reduction of State benefits.725.535 Reduction; receipt of State or Fed-

eral 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 qualifica-tion of individual.

725.539 More than one reduction event.

OVERPAYMENTS; UNDERPAYMENTS

725.540 Overpayments.725.541 Notice of waiver of adjustment or re-

covery of overpayment.725.542 When waiver of adjustment or recov-

ery 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 orcarrier.

Subpart H—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 compensa-

tion.725.608 Interest.725.620 Failure to secure benefits; other pen-

alties.725.621 Reports.

Subpart I—Medical Benefits andVocational Rehabilitation

725.701 Availability of medical benefits.


765


725.701A Claims for medical benefits onlyunder section 11 of the Reform Act.

725.702 Physician defined.725.703 Notification of right to medical ben-

efits; authorization of treatment.725.704 Arrangements for medical care.725.705 Authorization to provide medical

services.725.706 Reports of physicians and super-

vision of medical care.725.707 Disputes concerning medical bene-

fits.725.710 Objective of vocational rehabilita-

tion.725.711 Requests for referral to vocational

rehabilitation assistance.


SOURCE: 43 FR 36772, Aug. 18, 1978, unlessotherwise noted.

Subpart A—General§ 725.1 Statutory provisions.

(a) General. Title IV of the FederalMine Safety and Health Act of 1977, asamended by the Black Lung BenefitsReform Act of 1977, the Black LungBenefits Revenue Act of 1977, the BlackLung Benefits Revenue Act of 1981 andthe Black Lung Benefits Amendmentsof 1981, provides for the payment ofbenefits to a coal miner who is totallydisabled due to pneumoconiosis (blacklung disease) and to certain survivorsof a miner who dies due to pneumo-coniosis. For claims filed prior to Jan-uary 1, 1982, certain survivors could re-ceive benefits if the miner was totally(or for claims filed prior to June 30,1982, in accordance with section411(c)(5) of the Act, partially) disableddue to pneumoconiosis, or if the minerdied due to pneumoconiosis.

(b) Part B. Part B of title IV of theAct provided that all claims filed be-tween December 30, 1969, and June 30,1973, are to be filed with, processed, andpaid by the Secretary of Health, Edu-cation, and Welfare through the SocialSecurity Administration; claims filedby the survivor of a miner before Janu-ary 1, 1974, or within 6 months of theminer’s death if death occurred beforeJanuary 1, 1974, and claims filed by thesurvivor of a miner who was receivingbenefits under part B of title IV of theAct at the time of death, if filed within

6 months of the miner’s death, are alsoadjudicated and paid by the Social Se-curity Administration.

(c) Section 415. Claims filed by aminer between July 1 and December 31,1973, are adjudicated and paid undersection 415. Section 415 provides that aclaim filed between the appropriatedates shall be filed with and adju-dicated by the Secretary of Laborunder certain incorporated provisionsof the Longshoremen’s and HarborWorkers’ Compensation Act (33 U.S.C.901 et seq.). A claim approved undersection 415 is paid under part B of titleIV of the Act for periods of eligibilityoccurring between July 1 and Decem-ber 31, 1973, by the Secretary of Laborand for periods of eligibility thereafter,is paid by a coal mine operator whichis determined liable for the claim orthe Black Lung Disability Trust Fundif no operator is identified or if theminer’s last coal mine employmentterminated prior to January 1, 1970. Anoperator which may be found liable fora section 415 claim is notified of theclaim and allowed to participate fullyin the adjudication of such claim. Aclaim filed under section 415 is for allpurposes considered as if it were a partC claim (see paragraph (d) of this sec-tion) and the provisions of part C oftitle IV of the Act are fully applicableto a section 415 claim except as is oth-erwise provided in section 415.

(d) Part C. Claims filed by a miner orsurvivor on or after January 1, 1974, arefiled, adjudicated, and paid under theprovisions of part C of title IV of theAct. Part C requires that a claim filedon or after January 1, 1974, shall befiled under an applicable approvedState workers’ compensation law, or ifno such law has been approved by theSecretary of Labor, the claim may befiled with the Secretary of Labor undersection 422 of the Act. Claims filed withthe Secretary of Labor under part Care processed and adjudicated by theSecretary and paid by a coal mine op-erator. If the miner’s last coal mineemployment terminated before Janu-ary 1, 1970, or if no responsible operatorcan be identified, benefits are paid bythe Black Lung Disability Trust Fund.Claims adjudicated under part C are


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20 CFR Ch. VI (4–1–98 Edition)§ 725.1

subject to certain incorporated provi-sions of the Longshoremen’s and Har-bor Workers’ Compensation Act.

(e) Section 435. Section 435 of the Actaffords each person who filed a claimfor benefits under part B, section 415,or part C, and whose claim had been de-nied or was still pending as of March 1,1978, the effective date of the BlackLung Benefits Reform Act of 1977, theright to have his or her claim reviewedon the basis of the 1977 amendments tothe Act, and under certain cir-cumstances to submit new evidence insupport of the claim.

(f) Changes made by the Black LungBenefits Reform Act of 1977. In additionto those changes which are reflected inparagraphs (a)–(e) of this section, theBlack Lung Benefits Reform Act of 1977contains a number of significantamendments to the Act’s standards fordetermining eligibility for benefits.Among these are:

(1) A provision which clarifies thedefinition of ‘‘pneumoconiosis’’ to in-clude any ‘‘chronic dust disease of thelung and its sequelae, including res-piratory and pulmonary impairments,arising out of coal mine employment’’;

(2) A provision which defines ‘‘miner’’to include any person who works or hasworked in or around a coal mine orcoal preparation facility, and in coalmine construction or coal transpor-tation under certain circumstances;

(3) A provision which limits the de-nial of a claim solely on the basis ofemployment in a coal mine;

(4) A provision which authorizes theSecretary of Labor to establish stand-ards and develop criteria for determin-ing total disability or death due topneumoconiosis with respect to a partC claim;

(5) A new presumption which requiresthe payment of benefits to the sur-vivors of a miner who was employed for25 or more years in the mines undercertain conditions;

(6) Provisions relating to the treat-ment to be accorded a survivor’s affida-vit, certain X-ray interpretations, andcertain autopsy reports in the develop-ment of a claim; and

(7) Other clarifying, procedural, andtechnical amendments.

(g) Changes made by the the BlackLung Benefits Revenue Act of 1977. The

Black Lung Benefits Revenue Act of1977 established the Black Lung Dis-ability Trust Fund which is financedby a specified tax imposed upon eachton of coal (except lignite) producedand sold or used in the United Statesafter March 31, 1978. The Secretary ofthe Treasury is the managing trusteeof the fund and benefits are paid fromthe fund upon the direction of the Sec-retary of Labor. The fund was madeliable for the payment of all claims ap-proved under section 415, part C andsection 435 of the Act for all periods ofeligibility occurring on or after Janu-ary 1, 1974, with respect to claimswhere the miner’s last coal mine em-ployment terminated before January 1,1970, or where individual liability cannot be assessed against a coal mine op-erator due to bankruptcy, insolvency,or the like. The fund was also author-ized to pay certain claims which a re-sponsible operator has refused to paywithin a reasonable time, and to seekreimbursement from such operator.The purpose of the Fund and the BlackLung Benefits Revenue Act of 1977 wasto insure that coal mine operators, orthe coal industry, will fully bear thecost of black lung disease for thepresent time and in the future. TheBlack Lung Benefits Revenue Act of1977 also contained other provisions re-lating to the fund and authorized acoal mine operator to establish its owntrust fund for the payment of certainclaims.

(h) Changes made by the Black LungBenefits Amendments of 1981. In additionto the change reflected in paragraph (a)of this section, the Black Lung Bene-fits Amendments of 1981 made a num-ber of significant changes in the Act’sstandards for determining eligibilityfor benefits and concerning the pay-ment of such benefits. The followingchanges are all applicable to claimsfiled on or after January 1, 1982:

(1) The Secretary of Labor may re-read any X-ray submitted in support ofa claim and may rely upon a secondopinion concerning such an X-ray as ameans of auditing the validity of theclaim;

(2) The rebuttable presumption thatthe death of a miner with ten or moreyears employment in the coal mines,who died of a respirable disease, was


767


due to pneumoconiosis is no longer ap-plicable;

(3) The rebuttable presumption thatthe total disability of a miner with fif-teen or more years employment in thecoal mines, who has demonstrated a to-tally disabling respiratory or pul-monary impairment, is due to pneumo-coniosis is no longer applicable;

(4) In the case of deceased miners,where no medical or other relevant evi-dence is available, only affidavits frompersons not eligible to receive benefitsas a result of the adjudication of theclaim will be considered sufficient toestablish entitlement to benefits;

(5) Unless the miner was found enti-tled to benefits as a result of a claimfiled prior to January 1, 1982, benefitsare payable on survivors’ claims filedon and after January 1, 1982, only whenthe miner’s death was due to pneumo-coniosis;

(6) Benefits payable under this partare subject to an offset on account ofexcess earnings by the miner; and

(7) Other technical amendments.(i) Changes made by the Black Lung

Benefits Revenue Act of 1981. The BlackLung Benefits Revenue Act of 1981 tem-porarily doubles the amount of the taxupon coal until the Trust Fund shallhave repaid all advances received fromthe United States Treasury and the in-terest on all such advances. The Fundis also made liable for the payment ofcertain claims previously denied underthe 1972 version of the Act and subse-quently approved under section 435 andfor the reimbursement of operators andinsurers for benefits previously paid bythem on such claims. With respect toclaims filed on or after January 1, 1982,the Fund’s authorization for the pay-ment of interim benefits is limited tothe payment of prospective benefitsonly. These changes also define therates of interest to be paid to and bythe Fund.

(j) Longshoremen’s Act provisions. Theadjudication of claims filed under sec-tions 415, 422 and 435 of the Act is gov-erned by various procedural and otherprovisions contained in the Longshore-men’s and Harbor Workers’ Compensa-tion Act (LHWCA), as amended fromtime to time, which are incorporatedwithin the Act by sections 415 and 422.The incorporated LHWCA provisions

are applicable under the Act except asis otherwise provided by the Act or asprovided by regulations of the Sec-retary. Although occupational diseasebenefits are also payable under theLHWCA, the primary focus of the pro-cedures set forth in that Act is upon atime definite of traumatic injury ordeath. Because of this and other sig-nificant differences between a blacklung and longshore claim, it is deter-mined, in accordance with the author-ity set forth in section 422 of the Act,that certain of the incorporated proce-dures prescribed by the LHWCA mustbe altered to fit the circumstances or-dinarily confronted in the adjudicationof a black lung claim. The changesmade are based upon the Department’sexperience in processing black lungclaims since July 1, 1973, and all suchchanges are specified in this part orpart 727 of this subchapter. No otherdeparture from the incorporated provi-sions of the LHWCA is intended.

[43 FR 36772, Aug. 18, 1978, as amended at 48FR 24289, May 31, 1983]

§ 725.2 Purpose and applicability ofthis part.

(a) It is the purpose of this part toset forth the procedures to be followedand standards to be applied in the fil-ing, processing, adjudication, and pay-ment of claims filed under part C oftitle IV of the Act.

(b) This part is applicable to allclaims filed under part C of title IV ofthe Act on or after the effective date ofthis part and shall also be applicable toclaims pending on the effective date ofthis part as provided in part 727 of thissubchapter. This part is applicable toclaims considered under section 435 ofthe Act and part 727 of this subchapter.

§ 725.3 Contents of this part.(a) This subpart describes the statu-

tory provisions which relate to claimsconsidered under this part, the purposeand scope of this part, definitions andusages of terms applicable to this part,and matters relating to the availabil-ity of information collected by the De-partment of Labor in connection withthe processing of claims.

(b) Subpart B contains criteria fordetermining who may be found entitledto benefits under this part and other


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20 CFR Ch. VI (4–1–98 Edition)§ 725.4

provisions relating to the conditionsand duration of eligibility of a particu-lar individual.

(c) Subpart C describes the proce-dures to be followed and action to betaken in connection with the filing of aclaim under this part.

(d) Subpart D of this part sets forththe duties and powers of the personsdesignated by the Secretary of Laborto adjudicate claims, provisions relat-ing to the rights of parties and rep-resentatives of parties, and the proce-dure to be followed in the informalprocessing and adjudication of a claimunder this part.

(e) Subpart E describes the proce-dures to be followed if a hearing is re-quired with respect to a claim.

(f) Subpart F contains provisionsgoverning the identification of a coalmine operator which may be liable forthe payment of a claim under this part.

(g) Subpart G contains provisionsgoverning the payment of benefits withrespect to an approved claim.

(h) Subpart H describes the statutorymechanisms provided for the enforce-ment of a coal mine operator’s liabil-ity, sets forth the penalties which maybe applied in the case of a defaultingcoal mine operator, and describes theobligation of coal operators and theirinsurance carriers to file certain re-ports.

(i) Subpart I describes the right ofcertain beneficiaries to receive medicaltreatment benefits and vocational re-habilitation under the Act.

§ 725.4 Applicability of other parts inthis title.

(a) Part 718. Part 718 of this sub-chapter, which contains the criteriaand standards to be applied in deter-mining whether a miner is or was to-tally disabled due to pneumoconiosis,or whether a miner died due to pneu-moconiosis, shall be applicable to thedetermination of claims under thispart. Claims filed after March 31, 1980,are subject to the revised part 718 aspromulgated by the Secretary in ac-cordance with section 402(f)(1) of theAct on February 29, 1980. The criteriacontained in subpart C of part 727 ofthis subchapter are applicable in deter-mining claims filed prior to April 1,1980, under this part, and such criteria

shall be applicable at all times with re-spect to claims filed under this partand under section 11 of the Black LungBenefits Reform Act of 1977.

(b) Parts 715, 717, and 720. Parts 715,717, and 720 of this subchapter, whichestablished the procedures for the fil-ing, processing, and payment of claimsfiled under section 415 of the Act, arerepealed and pertinent provisions ofthese parts which retain significanceare incorporated within this part as ap-propriate.

(c) Part 726. Part 726 of this sub-chapter, which sets forth the obliga-tions imposed upon a coal operator toinsure or self-insure its liability for thepayment of benefits to certain eligibleclaimants, is applicable to this part asappropriate.

(d) Part 727. Part 727 of this sub-chapter, which governs the review, ad-judication and payment of pending anddenied claims under section 435 of theAct, is applicable to this part as pro-vided in such part 727. The criteria con-tained in subpart C of part 727 for de-termining a claimant’s eligibility forbenefits shall be applicable under thispart with respect to all claims filed be-fore April 1, 1980, and to all claims filedunder this part and under section 11 ofthe Black Lung Benefits Reform Act of1977.

(e) Part 410. Part 410 of this title,which sets forth provisions relating toa claim for black lung benefits underpart B of title IV of the Act, is inap-plicable to this part except as is pro-vided in this part, or in part 718 of thissubchapter.



(a) Definitions. For purposes of thissubchapter, except where the contentclearly indicates otherwise, the follow-ing definitions apply:

(1) The Act means the Federal CoalMine Health and Safety Act, Pub. L.91–173, 83 Stat. 742, 30 U.S.C. 801–960, asamended by the Black Lung BenefitsAct of 1972, the Mine Safety and HealthAct of 1977, the Black Lung BenefitsReform Act of 1977, the Black LungBenefits Revenue Act of 1977, the BlackLung Benefits Revenue Act of 1981, and


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the Black Lung Benefits Amendmentsof 1981.

(2) The Longshoremen’s Act or LHWCAmeans the Longshoremen’s and HarborWorkers’ 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 theSocial 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) A workers’ compensation law meansa law providing for payment of benefitsto employees, and their dependents andsurvivors, for disability on account ofinjury, including occupational disease,or death, suffered in connection withtheir employment.

(5) State includes any state of theUnited States, the District of Colum-bia, the Commonwealth of Puerto Rico,the Virgin Islands, American Samoa,Guam, the Trust Territory of the Pa-cific Islands, and prior to January 3,1959, and August 21, 1959, respectively,the territories of Alaska and Hawaii.

(6) Department means the UnitedStates Department of Labor.

(7) Secretary means the Secretary ofLabor, United States Department ofLabor, or a person, authorized by himor her to perform his or her functionsunder title IV of the Act.

(8) Office or OWCP means the Officeof Workers’ Compensation Programs,United States Department of Labor.

(9) Director means the Director,OWCP, or his or her designee.

(10) Division or DCMWC means the Di-vision of Coal Mine Workers’ Com-pensation in the OWCP, United StatesDepartment of Labor.

(11) District Director means a personappointed as provided in sections 39and 40 of the LHWCA, or his or her des-ignee, who is authorized to develop andadjudicate claims as provided in thissubchapter (see § 725.350). These regula-tions substitute this term for the termDeputy Commissioner which is used inthe statute. This substitution is for ad-ministrative purposes only and in noway affects the power or authority ofthe position as established in the stat-ute.

(12) Office of Administrative LawJudges means the Office of Administra-tive Law Judges, U.S. Department ofLabor.

(13) Chief Administrative Law Judgemeans the Chief Administrative LawJudge of the Office of AdministrativeLaw Judges, U.S. Department of Labor,800 K Street, NW., suite 400, Washing-ton, DC 20001-8002.

(14) Administrative law judge means aperson qualified under 5 U.S.C. 3105 toconduct hearings and adjudicate claimsfor benefits filed pursuant to section415 and part C of the Act. Until March1, 1979, it shall also mean an individualappointed to conduct such hearings andadjudicate such claims under Pub. L.94–504.

(15) Benefits Review Board or Boardmeans the Benefits Review Board, U.S.Department of Labor, an appellate tri-bunal appointed by the Secretary ofLabor pursuant to the provisions ofsection 21(b)(1) of the LHWCA. Seeparts 801, 802 of this title.

(16) Claim means a written assertionof entitlement to benefits under sec-tion 415 or part C of title IV of the Act,submitted in a form and manner au-thorized by the provisions of this sub-chapter.

(17) Claimant means an individualwho files a claim for benefits underthis part.

(18) Benefits means all money orother benefits paid or payable undersection 415 or part C of title IV of theAct on account of disability or deathdue to pneumoconiosis.

(19) Beneficiary means a miner or anysurviving spouse, divorced spouse,child, parent, brother or sister, who isentitled to benefits under either sec-tion 415 or part C of title IV of the Act.

(20) Pneumoconiosis means a chronicdust disease of the lung and itssequelae, including respiratory andpulmonary impairments, arising out ofcoal mine employment (see part 718 ofthis subchapter).

(21) Total disability and partial disabil-ity, for purposes of this part, have themeaning given them as provided inpart 718 of this subchapter.

(22) The Nation’s coal mines means allcoal mines located in any State.

(23) Coal mine means an area of landand all structures, facilities, machin-ery, tools, equipment, shafts, slopes,tunnels, excavations and other prop-erty, real or personal, placed upon,under or above the surface of such land


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20 CFR Ch. VI (4–1–98 Edition)§ 725.102

by any person, used in, or to be used in,or resulting from, the work of extract-ing in such area bituminous coal, lig-nite or anthracite from its natural de-posits in the earth by any means ormethod, and in the work of preparingthe coal so extracted, and includes cus-tom coal preparation facilities.

(24) Underground coal mine means acoal mine in which the earth and othermaterials which lie above and aroundthe natural deposit of coal (i.e., over-burden) are not removed in mining; in-cluding all land, structures, facilities,machinery, tools, equipment, shafts,slopes, tunnels, excavations and otherproperty, real or personal, appurtenantthereto.

(25) Coal preparation means the break-ing, crushing, sizing, cleaning, wash-ing, drying, mixing, storing and load-ing of bituminous coal, lignite or an-thracite, and such other work of pre-paring coal as is usually done by theoperator of a coal mine.

(26) Miner or coal miner means any in-dividual who works or has worked in oraround a coal mine or coal preparationfacility in the extraction or prepara-tion of coal. The term also includes anindividual who works or has worked incoal mine construction or transpor-tation in or around a coal mine, to theextent such individual was exposed tocoal dust as a result of such employ-ment (see § 725.202(a)).

(27) Operator means any owner, les-see, or other person who operates, con-trols or supervises a coal mine, includ-ing a prior or successor operator as de-fined in section 422 of the Act and cer-tain transportation and constructionemployers (see subpart F of this part).

(28) Responsible operator means an op-erator which has been determined to beliable for the payment of benefits to aclaimant for periods of eligibility afterDecember 31, 1973, with respect to aclaim filed under section 415 or part Cof title IV of the Act or reviewed undersection 435 of the Act.

(29) Person means an individual, part-nership, association, corporation, firm,subsidiary or parent of a corporation,or other organization or business en-tity.

(30) Insurer or carrier means any pri-vate company, corporation, mutual as-sociation, reciprocal or interinsurance

exchange, or any other person or fund,including any State fund, authorizedunder the laws of a State to insure em-ployers’ liability under workers’ com-pensation laws. The term also includesthe Secretary of Labor in the exerciseof his or her authority under section433 of the Act.

(31) Black Lung Disability Trust Fundor the Fund means the Black Lung Dis-ability Trust Fund established by theBlack Lung Benefits Revenue Act of1977, as amended by the Black LungBenefits Revenue Act of 1981, for thepayment of certain claims adjudicatedunder this part (see subpart G of thispart).

(b) Statutory terms. The definitionscontained in this section shall not beconstrued in derogation of terms of theAct.

(c) Dependents and survivors. Depend-ents and survivors are those personsdescribed in subpart B of this part.

[43 FR 36772, Aug. 18, 1978, as amended at 48FR 24290, May 31, 1983; 55 FR 28606, July 12,1990, 56 FR 54708, Oct. 22, 1991]

§ 725.102 Disclosure of program infor-mation.

(a) All reports, records, or other doc-uments filed with the OWCP with re-spect to claims are the records of theOWCP. The Director or his or her des-ignee shall be the official custodian ofthose records maintained by the OWCPat its national office. The Deputy Com-missioner shall be the official custo-dian of those records maintained at adistrict office.

(b) The official custodian of anyrecord sought to be inspected shall per-mit or deny inspection in accordancewith the Department of Labor’s regula-tions pertaining thereto (see 29 CFRpart 70). The original record in anysuch case shall not be removed fromthe Office of the custodian for such in-spection. The custodian may, in his orher discretion, deny inspection of anyrecord or part thereof which is of acharacter specified in 5 U.S.C. 552(b) ifin his or her opinion such inspectionmay result in damage, harm, or harass-ment to the beneficiary or to any otherperson. For special provisions concern-ing release of information regarding in-jured employees undergoing vocational


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rehabilitation, see § 702.508, of thistitle.

(c) Any person may request copies ofrecords he or she has been permitted toinspect. Such requests shall be ad-dressed to the official custodian of therecords sought to be copied. The offi-cial custodian shall provide the re-quested copies under the terms andconditions specified in the Departmentof Labor’s regulations relating thereto(see 29 CFR part 70).

(d) Any party to a claim (§ 725.360) orhis or her duly authorized representa-tive shall be permitted upon request toinspect the file which has been com-piled in connection with such claim.Any party to a claim or representativeof such party shall upon request be pro-vided with a copy of any or all materialcontained in such claim file. A requestfor information by a party or rep-resentative made under this paragraphshall be answered within a reasonabletime after receipt by the Office. Inter-nal documents prepared by the deputycommissioner which do not constituteevidence of a fact which must be estab-lished in connection with a claim shallnot be routinely provided or presentedfor inspection in accordance with a re-quest made under this paragraph.


Subpart B—Persons Entitled toBenefits, Conditions, and Du-ration of Entitlement

§ 725.201 Who is entitled to benefits;contents of this subpart.

(a) Section 415 and part C of the Actprovide for the payment of periodicbenefits in accordance with this partto:

(1) A miner (see § 725.202) who is de-termined to be totally disabled due topneumoconiosis; or

(2) The surviving spouse or survivingdivorced spouse or, where neither ex-ists, the child of a deceased miner,where the deceased miner;

(i) Was receiving benefits under sec-tion 415 or part C of title IV of the Actas a result of a claim filed prior to Jan-uary 1, 1982; or

(ii) Is determined as a result of aclaim filed prior to January 1, 1982, to

have been totally disabled due to pneu-moconiosis at the time of death, or tohave died due to pneumoconiosis. Sur-vivors of miners whose claims are filedon or after January 1, 1982, must estab-lish that the deceased miner’s deathwas due to pneumoconiosis in order toestablish their entitlement to benefits,except where entitlement is estab-lished under § 718.306 of part 718 on asurvivor’s claim filed prior to June 30,1982, or;

(3) The child of a miner’s survivingspouse who was receiving benefitsunder section 415 or part C of title IVof the Act at the time of such spouse’sdeath; or

(4) The surviving dependent parents,where there is no surviving spouse orchild, or the surviving dependentbrothers or sisters, where there is nosurviving spouse, child, or parent, of aminer, where the deceased miner;

(i) Was receiving benefits under sec-tion 415 or part C of title IV of the Actas a result of a claim filed prior to Jan-uary 1, 1982; or

(ii) Is determined as a result of aclaim filed prior to January 1, 1982, tohave been totally disabled due to pneu-moconiosis at the time of death, or tohave died due to pneumoconiosis. Sur-vivors of miners whose claims are filedon or after January 1, 1982, must estab-lish that the deceased miner’s deathwas due to pneumoconiosis in order toestablish their entitlement to benefits,except where entitlement is estab-lished under § 718.306 of part 718 on asurvivor’s claim filed prior to June 30,1982.

(b) Section 411(c)(5) of the Act pro-vides for the payment of benefits to theeligible survivors of a miner employedfor 25 or more years in the mines priorto June 30, 1971, if the miner’s deathoccurred on or before March 1, 1978, andif the claim was filed prior to June 30,1982, unless it is established that at thetime of death, the miner was not to-tally or partially disabled due to pneu-moconiosis. For the purposes of thispart the term ‘‘total disability’’ shallmean partial disability with respect toa claim for which eligibility is estab-lished under section 411(c)(5) of theAct. See § 718.306 of part 718 which im-plements this provision of the Act.


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20 CFR Ch. VI (4–1–98 Edition)§ 725.202

(c) The provisions contained in thissubpart describe the conditions of enti-tlement to benefits applicable to aminer, or a surviving spouse, child,parent, brother, or sister, and theevents which establish or terminate en-titlement to benefits.

(d) In order for an entitled miner orsurviving spouse to qualify for aug-mented benefits because of one or moredependents, such dependents mustmeet relationship and dependency re-quirements with respect to such bene-ficiary prescribed by or pursuant to theAct. Such requirements are also setforth in this subpart.


CONDITIONS AND DURATION OFENTITLEMENT

§ 725.202 Miner defined; condition ofentitlement, miner.

(a) Miner defined. A ‘‘miner’’ for thepurposes of this part is any person whoworks or has worked in or around acoal mine or coal preparation facilityin the extraction, preparation, ortransportation of coal, and any personwho works or has worked in coal mineconstruction or maintenance in oraround a coal mine or coal preparationfacility. A coal mine construction ortransportation worker shall be consid-ered a miner to the extent such indi-vidual is or was exposed to coal minedust as a result of employment in oraround a coal mine or coal preparationfacility. In the case of an individualemployed in coal transportation orcoal mine construction, there shall bea rebuttable presumption that such in-dividual was exposed to coal mine dustduring all periods of such employmentoccurring in or around a coal mine orcoal preparation facility for purposesof:

(1) Determining whether such indi-vidual is or was a miner; (2) establish-ing the applicability of any of the pre-sumptions described in section 411(c) ofthe Act and part 718 of this subchapter;and (3) determining the identity of acoal mine operator liable for the pay-ment of benefits in accordance with§ 725.493. The presumption may be re-butted by evidence which dem-onstrates:

(i) That the individual was not regu-larly exposed to coal mine dust duringhis or her employment in or around acoal mine or preparation facility; or(ii) that the individual was not regu-larly employed in or around a coalmine or coal preparation facility. Anindividual employed by a coal mine op-erator, regardless of the nature of suchindividual’s employment, shall be con-sidered a miner unless such individualwas not employed in or around a coalmine or coal preparation facility.

A person who is or was a self-em-ployed miner or independent contrac-tor, and who otherwise meets the re-quirements of this paragraph, shall beconsidered a miner for the purposes ofthis part (see § 725.494).

(b) Conditions of entitlement; miner. Anindividual is eligible for benefits underthis subchapter if the individual:

(1) Is a miner as defined in this sec-tion; and

(2) Is totally disabled due to pneumo-coniosis (see part 718 of this sub-chapter; see also § 725.503A); and

(3) Has filed a claim for benefits inaccordance with the provisions of thispart.

§ 725.203 Duration of entitlement;miner.

(a) An individual is entitled to bene-fits as a miner for each month begin-ning with the first month in which allof the conditions for entitlement pre-scribed in § 725.202 are satisfied.

(b) The last month for which such in-dividual is entitled to benefits is themonth before the month during whicheither of the following events first oc-curs:

(1) The miner dies; or(2) The miner’s total disability ceases

(see § 725.503A).

BENEFITS ON ACCOUNT OF LIVINGDEPENDENTS (AUGMENTED BENEFITS)

§ 725.204 Determination of relation-ship; spouse.

For the purpose of augmenting bene-fits, an individual will be considered tobe the spouse of a miner if:

(a) The courts of the State in whichthe miner is domiciled would find thatsuch individual and the miner validlymarried; or


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(b) The courts of the State in whichthe miner is domiciled would find,under the law they would apply in de-termining the devolution of the min-er’s intestate personal property, thatthe individual is the miner’s spouse; or

(c) Under State law, such individualwould have the right of a spouse toshare in the miner’s intestate personalproperty; or

(d)(1) Such individual went through amarriage ceremony with the miner re-sulting in a purported marriage be-tween them and which, but for a legalimpediment, would have been a validmarriage, unless the individual enteredinto the purported marriage withknowledge that it was not a valid mar-riage, or if such individual and theminer were not living in the samehousehold in the month in which a re-quest is filed that the miner’s benefitsbe augmented because such individualqualifies as the miner’s spouse. Theprovisions of this paragraph shall notapply, however, if the miner’s benefitsare or have been augmented under§ 725.520(c) because another personqualifies or has qualified as the miner’sspouse and such other person is, or isconsidered to be, the spouse of suchminer under paragraph (a), (b), or (c) ofthis section at the time such request isfiled.

(2) The qualification of an individualfor augmentation purposes under thisparagraph shall end with the month be-fore the month in which:

(i) The Office determines that thebenefits of the miner should be aug-mented on account of another person,if such other person is (or is consideredto be) the spouse of the miner underparagraph (a), (b), or (c) of this section,or

(ii) If the individual who previouslyqualified as a spouse for purposes of§ 725.520(c), entered into a valid mar-riage without regard to this paragraph,with a person other than the miner.

§ 725.205 Determination of depend-ency; spouse.

For the purposes of augmenting bene-fits, an individual who is the miner’sspouse (see § 725.204) will be determinedto be dependent upon the miner if:

(a) The individual is a member of thesame household as the miner (see§ 725.232); or

(b) The individual is receiving regu-lar contributions from the miner forsupport (see § 725.233(c)); or

(c) The miner has been ordered by acourt to contribute to such individual’ssupport (see § 725.233(e)); or

(d) The individual is the natural par-ent of the son or daughter of the miner;or

(e) The individual was married to theminer (see § 725.204) for a period of notless than 1 year.


§ 725.206 Determination of relation-ship; divorced spouse.

For the purposes of augmenting bene-fits with respect to any claim consid-ered or reviewed under this part or part727 of this subchapter, an individualwill be considered to be the divorcedspouse of a miner if the individual’smarriage to the miner has been termi-nated by a final divorce on or after the10th anniversary of the marriage un-less, if such individual was married toand divorced from the miner more thanonce, such individual was married tothe miner in each calendar year of theperiod beginning 10 years immediatelybefore the date on which any divorcebecame final.

§ 725.207 Determination of depend-ency; divorced spouse.

For the purpose of augmenting bene-fits, an individual who is the miner’sdivorced spouse (§ 725.206) will be deter-mined to be dependent upon the minerif:

(a) The individual is receiving atleast one-half of his or her supportfrom the miner (see § 725.233(g)); or

(b) The individual is receiving sub-stantial contributions from the minerpursuant to a written agreement (see§ 725.233 (c), (f)); or

(c) A court order requires the minerto furnish substantial contributions tothe individual’s support (see § 725.233(c), (e)).



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20 CFR Ch. VI (4–1–98 Edition)§ 725.208

§ 725.208 Determination of relation-ship; child.

As used in this section, the term‘‘beneficiary’’ means only a survivingspouse entitled to benefits at the timeof death (see § 725.212), or a miner. Anindividual will be considered to be thechild of a beneficiary if:

(a) The courts of the State in whichthe beneficiary is domiciled (see§ 725.231) would find, under the law theywould apply, that the individual is thebeneficiary’s child; or

(b) The individual is the legallyadopted child of such beneficiary; or

(c) The individual is the stepchild ofsuch beneficiary by reason of a validmarriage of the individual’s parent oradopting parent to such beneficiary; or

(d) The individual does not bear therelationship of child to such bene-ficiary under paragraph (a), (b), or (c)of this section, but would, under Statelaw, have the same right as a child toshare in the beneficiary’s intestate per-sonal property; or

(e) The individual is the natural sonor daughter of a beneficiary but is nota child under paragraph (a), (b), or (c)of this section, and is not considered tobe the child of the beneficiary underparagraph (d) of this section if the ben-eficiary and the mother or the father,as the case may be, of the individualwent through a marriage ceremony re-sulting in a purported marriage be-tween them which but for a legal im-pediment (see § 725.230) would have beena valid marriage; or

(f) The individual is the natural sonor daughter of a beneficiary but is nota child under paragraph (a), (b), or (c)of this section, and is not considered tobe the child of the beneficiary underparagraph (d) or (e) of this section,such individual shall nevertheless beconsidered to be the child of the bene-ficiary if:

(1) The beneficiary, prior to his orher entitlement to benefits, has ac-knowledged in writing that the individ-ual is his or her son or daughter, or hasbeen decreed by a court to be the par-ent of the individual, or has been or-dered by a court to contribute to thesupport of the individual (see§ 725.233(e)) because the individual is hisor her son or daughter; or

(2) Such beneficiary is shown by sat-isfactory evidence to be the father ormother of the individual and was livingwith or contributing to the support ofthe individual at the time the bene-ficiary became entitled to benefits.


§ 725.209 Determination of depend-ency; child.

(a) For purposes of augmenting thebenefits of a miner or surviving spouse,the term ‘‘beneficiary’’ as used in thissection means only a miner or surviv-ing spouse entitled to benefits (see§ 725.202 and § 725.212). An individualwho is the beneficiary’s child (§ 725.208)will be determined to be, or to havebeen dependent on the beneficiary, ifthe child:

(1) Is unmarried; and(2)(i) Is under 18 years of age; or(ii) Is 18 years of age or older and is

under a disability as defined in section223(d) of the Social Security Act, 42U.S.C. 423(d); or

(iii) Is 18 years of age or older and isa student.

(b)(1) The term ‘‘student’’ means a‘‘full-time student’’ as defined in sec-tion 202(d)(7) of the Social SecurityAct, 42 U.S.C. 402(d)(7) (see § 404.320(c)of this title), or an individual under 23years of age who has not completed 4years of education beyond the highschool level and who is regularly pur-suing a full-time course of study ortraining at an institution which is:

(i) A school, college, or university op-erated or directly supported by theUnited States, or by a State or localgovernment or political subdivisionthereof; or

(ii) A school, college, or universitywhich has been accredited by a Stateor by a State-recognized or nationally-recognized accrediting agency or body;or

(iii) A school, college, or universitynot so accredited but whose credits areaccepted, on transfer, by at least threeinstitutions which are so accredited; or

(iv) A technical, trade, vocational,business, or professional school accred-ited or licensed by the Federal or aState government or any political sub-division thereof, providing courses ofnot less than 3 months’ duration that


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prepare the student for a livelihood ina trade, industry, vocation, or profes-sion.

(2) A student will be considered to be‘‘pursuing a full-time course of studyor training at an institution’’ if thestudent is enrolled in a noncorrespond-ence course of at least 13 weeks dura-tion and is carrying a subject loadwhich is considered full-time for daystudents under the institution’s stand-ards and practices. A student beginningor ending a full-time course of study ortraining in part of any month will beconsidered to be pursuing such coursefor the entire month.

(3) A child is considered not to haveceased to be a student:

(i) During any interim betweenschool years, if the interim does notexceed 4 months and the child shows tothe satisfaction of the office that he orshe has a bona fide intention of con-tinuing to pursue a full-time course ofstudy or training; or

(ii) During periods of reasonable du-ration in which, in the judgment of theoffice, the child is prevented by factorsbeyond the child’s control from pursu-ing his or her education.

(4) A student whose 23d birthday oc-curs during a semester or other enroll-ment period in which such student ispursuing a full-time course of study ortraining shall continue to be consid-ered a student until the end of such pe-riod, unless eligibility is otherwise ter-minated.

§ 725.210 Duration of augmented bene-fits.

Augmented benefits payable on be-half of a spouse or divorced spouse, ora child, shall begin with the firstmonth in which the dependent satisfiesthe conditions of relationship and de-pendency set forth in this subpart.Augmentation of benefits on account ofa dependent continues through themonth before the month in which thedependent ceases to satisfy these con-ditions, except in the case of a childwho qualifies as a dependent becausesuch child is a student. In the lattercase, benefits continue to be aug-mented through the month before thefirst month during no part of whichsuch child qualifies as a student.

§ 725.211 Time of determination of re-lationship and dependency ofspouse or child for purposes of aug-mentation of benefits.

With respect to the spouse or child ofa miner entitled to benefits, and withrespect to the child of a survivingspouse entitled to benefits, the deter-mination as to whether an individualpurporting to be a spouse or child is re-lated to or dependent upon such mineror surviving spouse shall be based onthe facts and circumstances present ineach case, at the appropriate time.

SURVIVORS’ ENTITLEMENT

§ 725.212 Condition of entitlement; sur-viving spouse or surviving divorcedspouse.

(a) An individual who is the survivingspouse or surviving divorced spouse ofa miner is eligible for benefits if suchindividual:

(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 sec-

tion 415 or part C of title IV of the Actat the time of death as a result of aclaim filed prior to January 1, 1982; or

(ii) Is determined as a result of aclaim filed prior to January 1, 1982, tohave been totally disabled due to pneu-moconiosis at the time of death or tohave died due to pneumoconiosis. Asurviving spouse or surviving divorcedspouse of a miner whose claim is filedon or after January 1, 1982, must estab-lish that the deceased miner’s deathwas due to pneumoconiosis in order toestablish entitlement to benefits, ex-cept where entitlement is establishedunder § 718.306 of part 718 on a claimfiled prior to June 30, 1982.


(Pub. L. No. 96–511)

[48 FR 24291, May 31, 1983, as amended at 49FR 18295, Apr. 30, 1984]

§ 725.213 Duration of entitlement; sur-viving spouse or surviving divorcedspouse.

(a) An individual is entitled to bene-fits as a surviving spouse, or as a sur-viving divorced spouse, for each month


776

20 CFR Ch. VI (4–1–98 Edition)§ 725.214

beginning with the first month inwhich all of the conditions of entitle-ment prescribed in § 725.212 are satis-fied.

(b) The last month for which such in-dividual is entitled to such benefits isthe month before the month in whicheither of the following events first oc-curs:

(1) The surviving spouse or survivingdivorced spouse marries; or

(2) The surviving spouse or survivingdivorced spouse dies; or

(3) Where the individual qualifies asthe surviving spouse of a miner under§ 725.204(d), such individual ceases toqualify as provided in that paragraph.


(Pub. L. No. 96–511)

[43 FR 36772, Aug. 18, 1978, as amended at 48FR 24291, May 31, 1983; 49 FR 18295, Apr. 30,1984]

§ 725.214 Determination of relation-ship; surviving spouse.

An individual shall be considered tobe the surviving spouse of a miner if:

(a) The courts of the State in whichthe miner was domiciled (see § 725.231)at the time of his or her death wouldfind that the individual and the minerwere validly married; or

(b) The courts of the State in whichthe miner was domiciled (see § 725.231)at the time of the miner’s death wouldfind that the individual was the min-er’s surviving spouse; or

(c) Under State law, such individualwould have the right of the spouse toshare in the miner’s intestate personalproperty; or

(d) Such individual went through amarriage ceremony with the miner re-sulting in a purported marriage be-tween them and which but for a legalimpediment (see § 725.230) would havebeen a valid marriage, unless such indi-vidual entered into the purported mar-riage with knowledge that it was not avalid marriage, or if such individualand the miner were not living in thesame household at the time of the min-er’s death. The provisions of this para-graph shall not apply if another personis or has been entitled to benefits asthe surviving spouse of the miner andsuch other person is, or is considered to

be, the surviving spouse of such minerunder paragraph (a), (b), or (c) of thissection at the time such individualfiles a claim for benefits.


(Pub. L. No. 96–511)


§ 725.215 Determination of depend-ency; surviving spouse.

An individual who is the miner’s sur-viving spouse (see § 725.214) shall be de-termined to have been dependent onthe miner if, at the time of the miner’sdeath:

(a) The individual was living with theminer (see § 725.232); or

(b) The individual was dependentupon the miner for support or theminer has been ordered by a court tocontribute to such individual’s support(see § 725.233); or

(c) The individual was living apartfrom the miner because of the miner’sdesertion or other reasonable cause; or

(d) The individual is the natural par-ent of the miner’s son or daughter; or

(e) The individual had legally adopt-ed the miner’s son or daughter whilethe individual was married to theminer and while such son or daughterwas under the age of 18; or

(f) The individual was married to theminer at the time both of them legallyadopted a child under the age of 18; or

(g) (1) The individual was married tothe miner for a period of not less than9 months immediately before the dayon which the miner died, unless theminer’s death:

(i) Is accidental (as defined in para-graph (g)(2) of this section), or

(ii) Occurs in line of duty while theminer is a member of a uniformed serv-ice serving on active duty (as definedin § 404.1013(f) (2) and (3) of this title),and the surviving spouse was marriedto the miner for a period of not lessthan 3 months immediately prior tothe day on which such miner died.

(2) For purposes of paragraph (g) (l)(i) of this section, the death of a mineris accidental if such individual receivedbodily injuries solely through violent,external, and accidental means, and as


777


a direct result of the bodily injuriesand independently of all other causes,dies not later than 3 months after theday on which such miner receives suchbodily injuries. The term ‘‘accident’’means an event that wasunpremeditated and unforeseen fromthe standpoint of the deceased individ-ual. To determine whether the death ofan individual did, in fact, result froman accident the adjudication officerwill consider all the circumstances sur-rounding the casualty. An intentionaland voluntary suicide will not be con-sidered to be death by accident; how-ever, suicide by an individual who is soincompetent as to be incapable of act-ing intentionally and voluntarily willbe considered to be a death by acci-dent. In no event will the death of anindividual resulting from violent andexternal causes be considered a suicideunless there is direct proof that thefatal injury was self-inflicted.

(3) The provisions of this sectionshall not apply if the adjudication offi-cer determines that at the time of themarriage involved, the miner wouldnot reasonably have been expected tolive for 9 months.


(Pub. L. No. 96–511)

[43 FR 36772, Aug. 18, 1978, as amended at 49FR 18295, Apr. 30, 1984]

§ 725.216 Determination of a relation-ship; surviving divorced spouse.

An individual will be considered to bethe surviving divorced spouse of de-ceased miner in a claim consideredunder this part or reviewed under part727 of this subchapter, if such individ-ual’s marriage to the miner had beenterminated by a final divorce on orafter the 10th anniversary of the mar-riage unless, if such individual wasmarried to and divorced from theminer more than once, such individualwas married to such miner in each cal-endar year of the period beginning 10years immediately before the date onwhich any divorce became final andending with the year in which the di-vorce became final.


(Pub. L. No. 96–511)


§ 725.217 Determination of depend-ency; surviving divorced spouse.

(a) An individual who is the miner’ssurviving divorced spouse (see § 725.216)shall be determined to have been de-pendent on the miner if, for the monthbefore the month in which the minerdied:

(1) The individual was receiving atleast one-half of his or her supportfrom the miner (see § 725.233(g)); or

(2) The individual was receiving sub-stantial contributions from the minerpursuant to a written agreement (see§ 725.233 (e) and (f)); or

(3) A court order required the minerto furnish substantial contributions tothe individual’s support (see § 275.233 (c)and (e)).


(Pub. L. No. 96–511)


§ 725.218 Conditions of entitlement;child.

(a) An individual is entitled to bene-fits where he or she meets the requiredstandards of relationship and depend-ency under this subpart (see § 725.220and § 725.221) and is the child of a de-ceased miner who:

(1) Was receiving benefits under sec-tion 415 or part C of title IV of the Actas a result of a claim filed prior to Jan-uary 1, 1982, or

(2) Is determined as a result of aclaim filed prior to January 1, 1982, tohave been totally disabled due to pneu-moconiosis at the time of death, or tohave died due to pneumoconiosis. Asurviving dependent child of a minerwhose claim is filed on or after Janu-ary 1, 1982, must establish that theminer’s death was due to pneumo-coniosis in order to establish entitle-ment to benefits, except where entitle-ment is established under § 718.306 ofpart 718 on a claim filed prior to June30, 1982.

(b) A child is not entitled to benefitsfor any month for which a miner, or


778

20 CFR Ch. VI (4–1–98 Edition)§ 725.219

the surviving spouse or surviving di-vorced spouse of a miner, establishesentitlement to benefits.


(Pub. L. No. 96–511)


§ 725.219 Duration of entitlement;child.

(a) An individual is entitled to bene-fits as a child for each month begin-ning with the first month in which allof the conditions of entitlement pre-scribed in § 725.218 are satisfied.

(b) The last month for which such in-dividual is entitled to such benefits isthe month before the month in whichany one of the following events firstoccurs:

(1) The child dies;(2) The child marries;(3) The child attains age 18; and(i) Is not under a disability at that

time, and(ii) Is not a student (as defined in

§ 725.209(b)) during any part of themonth in which the child attains age18;

(4) If the child’s entitlement is basedon his or her status as a student, theearlier of:

(i) The first month during no part ofwhich the individual is a student; or

(ii) The month in which the individ-ual attains age 23 and is not under adisability at that time;

(5) If a child’s entitlement is based ondisability, the first month in no part ofwhich such individual is under a dis-ability.

(c) A child whose entitlement to ben-efits terminated with the month beforethe month in which the child attainedage 18, or later, may thereafter (pro-vided such individual is not married)again become entitled to such benefitsupon filing application for such reenti-tlement, beginning with the firstmonth after termination of benefits inwhich such individual is a student andhas not attained the age of 23.


(Pub. L. No. 96–511)

[43 FR 36772, Aug. 18, 1978, as amended at 48FR 24291, May 31, 1983; 49 FR 18295, Apr. 30,1984

§ 725.220 Determination of relation-ship; child.

For purposes of determining whetheran individual may qualify for benefitsas the child of a deceased miner, theprovisions of § 725.208 shall be applica-ble. As used in this section, the term‘‘beneficiary’’ means only a survivingspouse entitled to benefits at the timeof such surviving spouse’s death (see§ 725.212), or a miner. For purposes of asurvivor’s claim, an individual will beconsidered to be a child of a bene-ficiary if:

(a) The courts of the State in whichsuch beneficiary is domiciled (see§ 725.231) would find, under the law theywould apply in determining the devolu-tion of the beneficiary’s intestate per-sonal property, that the individual isthe beneficiary’s child; or

(b) Such individual is the legallyadopted child of such beneficiary; or

(c) Such individual is the stepchild ofsuch beneficiary by reason of a validmarriage of such individual’s parent oradopting parent to such beneficiary; or

(d) Such individual does not bear therelationship of child to such bene-ficiary under paragraph (a), (b), or (c)of this section, but would, under Statelaw, have the same right as a child toshare in the beneficiary’s intestate per-sonal property; or

(e) Such individual is the natural sonor daughter of a beneficiary but doesnot bear the relationship of child tosuch beneficiary under paragraph (a),(b), or (c) of this section, and is notconsidered to be the child of the bene-ficiary under paragraph (d) of this sec-tion, such individual shall neverthelessbe considered to be the child of suchbeneficiary if the beneficiary and themother or father, as the case may be,of such individual went through a mar-riage ceremony resulting in a pur-ported marriage between them whichbut for a legal impediment (see§ 725.230) would have been a valid mar-riage; or

(f) Such individual is the natural sonor daughter of a beneficiary but doesnot have the relationship of child to


779


such beneficiary under paragraph (a),(b), or (c) of this section, and is notconsidered to be the child of the bene-ficiary under paragraph (d) or (e) ofthis section, such individual shall nev-ertheless be considered to be the childof such beneficiary if:

(1) Such beneficiary, prior to his orher entitlement to benefits, has ac-knowledged in writing that the individ-ual is his or her son or daughter, or hasbeen decreed by a court to be the fa-ther or mother of the individual, or hasbeen ordered by a court to contributeto the support of the individual (see§ 725.233(a)) because the individual is ason or daughter; or

(2) Such beneficiary is shown by sat-isfactory evidence to be the father ormother of the individual and was livingwith or contributing to the support ofthe individual at the time such bene-ficiary became entitled to benefits.


(Pub. L. No. 96–511)


§ 725.221 Determination of depend-ency; child.

For the purposes of determiningwhether a child was dependent upon adeceased miner, the provisions of§ 725.209 shall be applicable, except thatfor purposes of determining the eligi-bility of a child who is under a disabil-ity as defined in section 223(d) of theSocial Security Act, such disabilitymust have begun before the child at-tained age 18, or in the case of a stu-dent, before the child ceased to be astudent.


(Pub. L. No. 96–511)


§ 725.222 Conditions of entitlement;parent, brother, or sister.

(a) An individual is eligible for bene-fits as a surviving parent, brother orsister if all of the following require-ments are met:

(1) The individual is the parent,brother, or sister of a deceased miner;

(2) The individual was dependent onthe miner at the pertinent time;

(3) Proof of support is filed within 2years after the miner’s death, unlessthe time is extended for good cause(§ 725.226);

(4) In the case of a brother or sister,such individual also:

(i) Is under 18 years of age; or(ii) Is 18 years of age or older and is

under a disability as defined in section223(d) of the Social Security Act, 42U.S.C. 423(d), which began before suchindividual attained age 18, or in thecase of a student, before the studentceased to be a student; or

(iii) Is a student (see § 725.209(b)); or(iv) Is under a disability as defined in

section 223(d) of the Social SecurityAct, 42 U.S.C. 423(d), at the time of theminer’s death;

(5) The deceased miner:(i) Was entitled to benefits under sec-

tion 415 or part C of title IV of the Actas a result of a claim filed prior to Jan-uary 1, 1982; or

(ii) Is determined as a result of aclaim filed prior to January 1, 1982, tohave been totally disabled due to pneu-moconiosis at the time of death or tohave died due to pneumoconiosis. Asurviving dependent parent, brother orsister of a miner whose claim is filedon or after January 1, 1982, must estab-lish that the miner’s death was due topneumoconiosis in order to establishentitlement to benefits, except whereentitlement is established under§ 718.306 of part 718 on a claim filedprior to June 30, 1982.

(b)(1) A parent is not entitled to ben-efits if the deceased miner was sur-vived by a spouse or child at the timeof such miner’s death.

(2) A brother or sister is not entitledto benefits if the deceased miner wassurvived by a spouse, child, or parentat the time of such miner’s death.


(Pub. L. No. 96–511)



780

20 CFR Ch. VI (4–1–98 Edition)§ 725.223

§ 725.223 Duration of entitlement; par-ent, brother, or sister.

(a) A parent, sister, or brother is en-titled to benefits beginning with themonth all the conditions of entitle-ment described in § 725.222 are met.

(b) The last month for which suchparent is entitled to benefits is themonth in which the parent dies.

(c) The last month for which suchbrother or sister is entitled to benefitsis the month before the month inwhich any of the following events firstoccurs:

(1) The individual dies;(2)(i) The individual marries or re-

marries; or(ii) If already married, the individual

received support in any amount fromhis or her spouse;

(3) The individual attains age 18, and(i) Is not under a disability at that

time, and (ii) Is not a student (see§ 725.209(b)) during any part of themonth in which such individual attainsage 18;

(4) If the individual’s entitlement isbased on his or her status as a student,the earlier of:

(i) The first month during no part ofwhich he or she is a student; or

(ii) The month in which he or she at-tains age 23 and is not under a disabil-ity at that time;

(5) If the individual’s entitlement isbased on disability, the first month inno part of which the individual is undera disability.


(Pub. L. No. 96–511)


§ 725.224 Determination of relation-ship; parent, brother, or sister.

(a) An individual will be consideredto be the parent, brother, or sister of aminer if the courts of the State inwhich the miner was domiciled (see§ 225.231) at the time of death wouldfind, under the law they would apply,that the individual is the miner’s par-ent, brother, or sister.

(b) Where, under State law, the indi-vidual is not the miner’s parent, broth-er, or sister, but would, under Statelaw, have the same status (i.e., right to

share in the miner’s intestate personalproperty) as a parent, brother, or sis-ter, the individual will be considered tobe the parent, brother, or sister as ap-propriate.

§ 725.225 Determination of depend-ency; parent, brother, or sister.

An individual who is the miner’s par-ent, brother, or sister will be deter-mined to have been dependent on theminer if, during the 1-year period im-mediately prior to the miner’s death:

(a) The individual and the miner wereliving in the same household (see§ 725.232); and

(b) The individual was totally de-pendent on the miner for support (see§ 725.233(h)).


§ 725.226 ‘‘Good cause’’ for delayed fil-ing of proof of support.

(a) What constitutes ‘‘good cause.’’‘‘Good cause’’ may be found for failureto file timely proof of support wherethe parent, brother, or sister estab-lishes to the satisfaction of the Officethat such failure to file was due to:

(1) Circumstances beyond the individ-ual’s control, such as extended illness,mental, or physical incapacity, or com-munication difficulties; or

(2) Incorrect or incomplete informa-tion furnished the individual by the Of-fice; or

(3) Efforts by the individual to securesupporting evidence without a realiza-tion that such evidence could be sub-mitted after filing proof of support.

(b) What does not constitute ‘‘goodcause.’’ ‘‘Good cause’’ for failure to filetimely proof of support (see§ 725.222(a)(3)) does not exist when thereis evidence of record in the Office thatthe individual was informed that he orshe should file within the prescribedperiod and he or she failed to do so de-liberately or through negligence.

§ 725.227 Time of determination of re-lationship and dependency of sur-vivors.

The determination as to whether anindividual purporting to be an entitledsurvivor of a miner or beneficiary wasrelated to, or dependent upon, theminer is made after such individual


781


files a claim for benefits as a survivor.Such determination is based on thefacts and circumstances with respectto a reasonable period of time endingwith the miner’s death. A prior deter-mination that such individual was, orwas not, a dependent for the purposesof augmenting the miner’s benefits fora certain period, is not determinativeof the issue of whether the individual isa dependent survivor of such miner.

§ 725.228 Effect of conviction of felo-nious and intentional homicide onentitlement to benefits.

An individual who has been convictedof the felonious and intentional homi-cide of a miner of other beneficiaryshall not be entitled to receive anybenefits payable because of the deathof such miner or other beneficiary, andsuch person shall be considered non-existent in determining the entitle-ment to benefits of other individuals.

TERMS USED IN THIS SUBPART

§ 725.229 Intestate personal property.

References in this subpart to the‘‘same right to share in the intestatepersonal property’’ of a deceased miner(or surviving spouse) refer to the rightof an individual to share in such dis-tribution in the individual’s own rightand not the right of representation.

§ 725.230 Legal impediment.

For purposes of this subpart, ‘‘legalimpediment’’ means an impediment re-sulting from the lack of dissolution ofa previous marriage or otherwise aris-ing out of such previous marriage or itsdissolution or resulting from a defectin the procedure followed in connectionwith the purported marriage cere-mony—for example, the solemnizationof a marriage only through a religiousceremony in a country which requiresa civil ceremony for a valid marriage.

§ 725.231 Domicile.

(a) For purposes of this subpart, theterm ‘‘domicile’’ means the place of anindividual’s true, fixed, and permanenthome.

(b) The domicile of a deceased mineror surviving spouse is determined as ofthe time of death.

(c) If an individual was not domiciledin any State at the pertinent time, thelaw of the District of Columbia is ap-plied.

§ 725.232 Member of the same house-hold—‘‘living with,’’ ‘‘living in thesame household,’’ and ‘‘living in theminer’s household,’’ defined.

(a) Defined. (1) The term ‘‘member ofthe same household’’ as used in section402(a)(2) of the Act (with respect to aspouse); the term ‘‘living with’’ as usedin section 402(e) of the Act (with re-spect to a surviving spouse); and theterm ‘‘living in the same household’’ asused in this subpart, means that a hus-band and wife were customarily livingtogether as husband and wife in thesame place.

(2) The term ‘‘living in the miner’shousehold’’ as used in section 412(a)(5)of the Act (with respect to a parent,brother, or sister) means that theminer and such parent, brother, or sis-ter were sharing the same residence.

(b) Temporary absence. The temporaryabsence from the same residence of ei-ther the miner, or the miner’s spouse,parent, brother, or sister (as the casemay be), does not preclude a findingthat one was ‘‘living with’’ the other,or that they were ‘‘members of thesame household.’’ The absence of onesuch individual from the residence inwhich both had customarily lived shall,in the absence of evidence to the con-trary, be considered temporary:

(1) If such absence was due to servicein the Armed Forces of the UnitedStates; or

(2) If the period of absence from hisor her residence did not exceed 6months and the absence was due tobusiness or employment reasons, or be-cause of confinement in a penal insti-tution or in a hospital, nursing home,or other curative institution; or

(3) In any other case, if the evidenceestablishes that despite such absencethey nevertheless reasonably expectedto resume physically living together.

(c) Relevant period of time. (1) The de-termination as to whether a survivingspouse had been ‘‘living with’’ theminer shall be based upon the facts andcircumstances as of the time of thedeath of the miner.


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20 CFR Ch. VI (4–1–98 Edition)§ 725.233

(2) The determination as to whethera spouse is a ‘‘member of the samehousehold’’ as the miner shall be basedupon the facts and circumstances withrespect to the period or periods of timeas to which the issue of membership inthe same household is material.

(3) The determination as to whethera parent, brother, or sister was ‘‘livingin the miner’s household’’ shall takeaccount of the 1-year period imme-diately prior to the miner’s death.

§ 725.233 Support and contributions.(a) Support defined. The term ‘‘sup-

port’’ includes food, shelter, clothing,ordinary medical expenses, and otherordinary and customary items for themaintenance of the person supported.

(b) Contributions defined. The term‘‘contributions’’ refers to contributionsactually provided by the contributorfrom such individual’s property, or theuse thereof, or by the use of such indi-vidual’s own credit.

(c) Regular contributions and substan-tial contributions defined. The terms‘‘regular contributions’’ and ‘‘substan-tial contributions’’ mean contributionsthat are customary and sufficient toconstitute a material factor in the costof the individual’s support.

(d) Contributions and community prop-erty. When a spouse receives and usesfor his or her support income fromservices or property, and such income,under applicable State law, is the com-munity property of the wife and herhusband, no part of such income is a‘‘contribution’’ by one spouse to theother’s support regardless of the legalinterest of the donor. However, when aspouse receives and uses for support,income from the services and the prop-erty of the other spouse and, under ap-plicable State law, such income is com-munity property, all of such income isconsidered to be a contribution by thedonor to the spouse’s support.

(e) Court order for support defined.References to a support order in thissubpart means any court order, judge-ment, or decree of a court of competentjurisdiction which requires regularcontributions that are a material fac-tor in the cost of the individual’s sup-port and which is in effect at the appli-cable time. If such contributions arerequired by a court order, this condi-

tion is met whether or not the con-tributions were actually made.

(f) Written agreement defined. Theterm ‘‘written agreement’’ in thephrase ‘‘substantial contributions pur-suant to a written agreement’’, as usedin this subpart means an agreementsigned by the miner providing for sub-stantial contributions by the miner forthe individual’s support. It must be ineffect at the applicable time but itneed not be legally enforceable.

(g) One-half support defined. The term‘‘one-half support’’ means that theminer made regular contributions, incash or in kind, to the support of a di-vorced spouse at the specified time orfor the specified period, and that theamount of such contributions equalledor exceeded one-half the total cost ofsuch individual’s support at such timeor during such period.

(h) Totally dependent for support de-fined. The term ‘‘totally dependent forsupport’’ as used in § 725.225(b) meansthat the miner made regular contribu-tions to the support of the miner’s par-ents, brother, or sister, as the case maybe, and that the amount of such con-tributions at least equalled the totalcost of such individual’s support.

Subpart C—Filing of Claims

§ 725.301 Who may file a claim.

(a) Any person who believes he or shemay be entitled to benefits under theAct may file a claim in accordancewith this subpart.

(b) A claimant who has attained theage of 18, is mentally competent andphysically able, may file a claim on hisor her own behalf.

(c) If a claimant is unable to file aclaim on his or her behalf because of alegal or physical impairment, the fol-lowing rules shall apply:

(1) A claimant between the ages of 16and 18 years who is mentally com-petent and not under the legal custodyor care of another person, or a commit-tee or institution, may upon filing astatement to the effect, file a claim onhis or her own behalf. In any other casewhere the claimant is under 18 years ofage, only a person, or the manager or


783


principal officer of an institution hav-ing legal custody or care of the claim-ant may file a claim on his or her be-half.

(2) If a claimant over 18 years of agehas a legally appointed guardian orcommittee, only the guardian or com-mittee may file a claim on his or herbehalf.

(3) If a claimant over 18 years of ageis mentally incompetent or physicallyunable to file a claim and is under thecare of another person, or an institu-tion, only the person, or the manageror principal officer of the institutionresponsible for the care of the claim-ant, may file a claim on his or her be-half.

(4) For good cause shown, the Officemay accept a claim executed by a per-son other than one described in para-graphs (2) or (3) of this section.

(d) Except as provided in § 725.305 ofthis part, in order for a claim to beconsidered, the claimant must be aliveat the time the claim is filed.

§ 725.302 Evidence of authority to filea claim on behalf of another.

(a) A person filing a claim on behalfof a claimant shall submit evidence ofhis or her authority to so act at thetime of filing or at a reasonable timethereafter in accordance with the fol-lowing:

(1) A legally appointed guardian orcommittee shall provide the Officewith certification of appointment by aproper official of the court.

(2) Any other person shall provide astatement describing his or her rela-tionship to the claimant, the extent towhich he or she has care of the claim-ant, or his or her position as an officerof the institution of which the claim-ant is an inmate. The Office may, atany time, require additional evidenceto establish the authority of any suchperson.

§ 725.303 Date and place of filing ofclaims.

(a) (1) Claims for benefits shall be de-livered, mailed to, or presented at, anyof the various district offices of the So-cial Security Administration, or any ofthe various offices of the Departmentof Labor authorized to accept claims,or, in the case of a claim filed by or on

behalf of a claimant residing outsidethe United States, mailed or presentedto any office maintained by the For-eign Service of the United States. Aclaim shall be considered filed on theday it is received by the office in whichit is first filed.

(2) A claim submitted to a ForeignService Office or any other agency orsubdivision of the U.S. Governmentshall be forwarded to the Office andconsidered filed as of the date it wasreceived at the Foreign Service Officeor other governmental agency or unit.

(b) A claim submitted by mail shallbe considered filed as of the date of de-livery unless a loss or impairment ofbenefit rights would result, in whichcase a claim shall be considered filed asof the date of its postmark. In the ab-sence of a legible postmark, other evi-dence may be used to establish themailing date.

§ 725.304 Forms and initial processing.(a) Claims shall be filed on forms pre-

scribed and approved by the Office. Thedistrict office at which the claim isfiled will assist claimants in complet-ing their forms.

(b) If the place at which a claim isfiled is an office of the Social SecurityAdministration, such office shall for-ward the completed claim form to anoffice of the DCMWC, which is author-ized to process the claim.

§ 725.305 When a written statement isconsidered a claim.

(a) The filing of a statement signedby an individual indicating an inten-tion to claim benefits shall be consid-ered to be the filing of a claim for thepurposes of this part under the follow-ing circumstances:

(1) The claimant or a proper personon his or her behalf (see § 725.301) exe-cutes and files a prescribed claim formwith the Office during the claimant’slifetime within the period specified inparagraph (b) of this section.

(2) Where the claimant dies withinthe period specified in paragraph (b) ofthis section without filing a prescribedclaim form, and a person acting on be-half of the deceased claimant’s estateexecutes and files a prescribed claimform within the period specified inparagraph (c) of this section.


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(b) Upon receipt of a written state-ment indicating an intention to claimbenefits, the Office shall notify thesigner in writing that to be consideredthe claim must be executed by theclaimant or a proper party on his orher behalf on the prescribed form andfiled with the Office within six monthsfrom the date of mailing of the notice.

(c) If before the notice specified inparagraph (b) of this section is sent, orwithin six months after such notice issent, the claimant dies without havingexecuted and filed a prescribed form, orwithout having had one executed andfiled in his or her behalf, the Officeshall upon receipt of notice of theclaimant’s death advise his or her es-tate, or those living at his or her lastknown address, in writing that for theclaim to be considered, a prescribedclaim form must be executed and filedby a person authorized to do so on be-half of the claimant’s estate within sixmonths of the date of the later notice.

(d) Claims based upon written state-ments indicating an intention to claimbenefits not perfected in accordancewith this section shall not be proc-essed.

§ 725.306 Withdrawal of a claim.(a) A claimant or an individual au-

thorized to execute a claim on a claim-ant’s behalf or on behalf of claimant’sestate under § 725.305, may withdraw apreviously filed claim provided that:

(1) He or she files a written requestwith the appropriate adjudication offi-cer indicating the reasons for seekingwithdrawal of the claim;

(2) The appropriate adjudication offi-cer approves the request for with-drawal on the grounds that it is in thebest interests of the claimant or his orher estate, and;

(3) Any benefits previously paid withrespect to the claim are reimbursed.

(b) When a claim had been withdrawnunder paragraph (a) of this section, theclaim will be considered not to havebeen filed.

§ 725.307 Cancellation of a request forwithdrawal.

At any time prior to approval, a re-quest for withdrawal may be canceledby a written request of the claimant ora person authorized to act on the

claimant’s behalf or on behalf of theclaimant’s estate.

§ 725.308 Time limits for filing claims.(a) A claim for benefits filed under

this part by, or on behalf of, a minershall be filed within three years after amedical determination of total disabil-ity due to pneumoconiosis which hasbeen communicated to the miner or aperson responsible for the care of theminer, or within three years after thedate of enactment of the Black LungBenefits Reform Act of 1977, whicheveris later. There is no time limit on thefiling of a claim by the survivor of aminer.

(b) A miner who is receiving benefitsunder part B of title IV of the Act andwho is notified by HEW of the right toseek medical benefits may file a claimfor medical benefits under part C oftitle IV of the Act and this part. TheSecretary of Health, Education, andWelfare is required to notify eachminer receiving benefits under part Bof this right. Notwithstanding the pro-visions of paragraph (a) of this section,a miner notified of his or her rightsunder this paragraph may file a claimunder this part on or before December31, 1980. Any claim filed after that dateshall be untimely unless the time forfiling has been enlarged for good causeshown.

(c) There shall be a rebuttable pre-sumption that every claim for benefitsis timely filed. However, except as pro-vided in paragraph (b) of this section,the time limits in this section are man-datory and may not be waived or tolledexcept upon a showing of extraordinarycircumstances.

[43 FR 36772, Aug. 18, 1978, as amended at 45FR 44264, July 1, 1980]

§ 725.309 Duplicate claims.(a) A claimant whose claim for bene-

fits was previously approved under partB of title IV of the Act may file a claimfor benefits under this part as providedin §§ 725.308(b) and 725.701A.

(b) A claimant who has filed a claimfor benefits under both parts B and C oftitle IV of the Act or who has filedmore than one claim for benefits underpart C of title IV of the Act beforeMarch 1, 1978, and whose claims arepending or have been denied (§ 727.102 of


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this subchapter) shall have his or herclaims considered in accordance with§ 727.103 of this subchapter.

(c) A claimant who filed a claim forbenefits under part B of title IV of theAct or part C of title IV of the Act be-fore March 1, 1978, and whose previousclaim(s) are pending or have been fi-nally denied, who files an additionalclaim under this part, shall have thelater claim merged with any earlierclaim subject to review under part 727of this subchapter. If an earlier claimsubject to review under part 727 of thissubchapter has been denied after re-view, a new claim filed under this partshall also be denied, on the grounds ofthe prior denial, unless the deputycommissioner determines that therehas been a material change in condi-tions or the later claim is a request formodification and the requirements of§ 725.310 are met. If an earlier survivor’sclaim subject to review under part 727of this subchapter has been denied, thenew claim filed under this part shallalso be denied unless the deputy com-missioner determines that the laterclaim is a request for modification andthe requirements of § 725.310 are met.

(d) In the case of a claimant who filesmore than one claim for benefits underthis part, the later claim shall bemerged with the earlier claim for allpurposes if the earlier claim is stillpending. If the earlier miner’s claimhas been finally denied, the later claimshall also be denied, on the grounds ofthe prior denial, unless the deputycommissioner determines that therehas been a material change in condi-tions or the later claim is a request formodification and the requirements of§ 725.310 are met. If an earlier survivor’sclaim filed under this part has been fi-nally denied, the new claim filed underthis part shall also be denied unless thedeputy commissioner determines thatthe later claim is a request for modi-fication and the requirements of§ 725.310 are met.

(e) Notwithstanding any other provi-sion of this part or part 727 of this sub-chapter, a person may exercise theright of review provided in paragraph(c) of § 727.103 at the same time suchperson is pursuing an appeal of a pre-viously denied part B claim under thelaw as it existed prior to March 1, 1978.

If the part B claim is ultimately ap-proved as a result of the appeal, theclaimant must immediately notify theSecretary of Labor and, where appro-priate, the coal mine operator, and allduplicate payments made under part Cshall be considered an overpaymentand arrangements shall be made to in-sure the repayment of such overpay-ments to the fund or an operator, asappropriate.

(f) In a case involving duplicateclaims, under no circumstances are du-plicate benefits payable for concurrentperiods of eligibility. Any duplicatebenefits paid shall be subject to collec-tion or offset under subpart G of thispart.

§ 725.310 Modification of awards anddenials.

(a) Upon his or her own initiative, orupon the request of any party ongrounds of a change in conditions orbecause of a mistake in a determina-tion of fact, the deputy commissionermay, at any time before one year fromthe date of the last payment of bene-fits, or at any time before one yearafter the denial of a claim, reconsiderthe terms of an award or denial of ben-efits.

(b) Modification proceedings shall beconducted in accordance with the pro-visions of this part as appropriate. Ad-ditional evidence may be submitted byany party or requested by the deputycommissioner. Modification proceed-ings shall not be initiated before an ad-ministrative law judge or the BenefitsReview Board.

(c) At the conclusion of modificationproceedings the deputy commissionermay issue a proposed decision andorder (§ 725.418), forward the claim for ahearing (§ 725.421) or, if appropriate,deny the claim by reason of abandon-ment (§ 725.409).

(d) An order issued following the con-clusion of modification proceedingsmay terminate, continue, reinstate, in-crease or decrease benefit payments oraward benefits. Such order shall not af-fect any benefits previously paid, ex-cept that an order increasing or de-creasing the amount of benefits pay-able may be made effective on the datefrom which benefits were determinedpayable by the terms of an earlier


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award. In the case of an award which isdecreased, any payment made in excessof the decreased rate shall be subject tocollection or offset under subpart G ofthis part.

§ 725.311 Communications with re-spect to claims; time computations.

(a) Unless otherwise specified by thispart, all requests, responses, notices,decisions, orders, or other communica-tions required or permitted by thispart shall be in writing.

(b) If required by this part, any docu-ment, brief, or other statement submit-ted in connection with the adjudicationof a claim under this part shall be sentto each party to the claim by the sub-mitting party. If proof of service is re-quired with respect to any communica-tion, such proof of service shall be sub-mitted to the appropriate adjudicationofficer and filed as part of the claimrecord.

(c) Whenever any notice, document,brief or other statement is served bymail, 7 days shall be added to the timewithin which a reply or response is re-quired to be submitted.

(d) In computing any period of timedescribed in this part, by any applica-ble statute, or by the order of any adju-dication officer, the day of the act orevent from which the designated periodof time begins to run shall not be in-cluded. The last day of the period shallbe included unless it is a Saturday,Sunday, or legal holiday, in whichevent the period extends until the nextday which is not a Saturday, Sunday,or legal holiday. ‘‘Legal holiday’’ in-cludes New Year’s Day, Washington’sBirthday, Memorial Day, IndependenceDay, Labor Day, Columbus Day, Veter-ans Day, Thanksgiving Day, ChristmasDay and any other day appointed as aholiday by the President or the Con-gress of the United States.

Subpart D—Adjudication ofClaims; Adjudication Officers

§ 725.350 Who are the adjudication of-ficers.

(a) General. The persons authorizedby the Secretary of Labor to acceptevidence and decide claims on the basisof such evidence are called ‘‘adjudica-tion officers.’’ This section describes

the status of black lung claims adju-dication officers.

(b) Deputy commissioner. The deputycommissioner is that official of theDCMWC or his designee who is author-ized to perform functions with respectto the development, processing, and ad-judication of claims in accordance withthis part.

(c) Administrative law judge. An ad-ministrative law judge is that officialappointed pursuant to 5 U.S.C. 3105 (orPub. L. 94–504) who is qualified to pre-side at hearings under 5 U.S.C. 557 andis empowered by the Secretary to con-duct formal hearings with respect to,and adjudicate, claims in accordancewith this part. A person appointedunder Public Law 94–504 shall not beconsidered an administrative law judgefor purposes of this part for any periodafter March 1, 1979.

§ 725.351 Powers of adjudication offi-cers.

(a) Deputy commissioner. The deputycommissioner is authorized to: (1)Make determinations with respect toclaims as is provided in this part; (2)conduct conferences and informal dis-covery proceedings as provided in thispart; (3) compel the production of docu-ments by the issuance of a subpoena,with the written approval of the Direc-tor; (4) prepare documents for the sig-nature of parties; (5) issue appropriateorders as provided in this part; (6) doall other things necessary to enablehim or her to discharge the duties ofthe office.

(b) Administrative Law Judge. An ad-ministrative law judge is authorized to:(1) conduct formal hearings in accord-ance with the provisions of this part;(2) administer oaths and examine wit-nesses; (3) compel the production ofdocuments and appearance of witnessesby the issuance of subpoenas; (4) issuedecisions and orders with respect toclaims as provided in this part; and (5)do all other things necessary to enablehim or her to discharge the duties ofthe office.

(c) If any person in proceedings be-fore an adjudication officer disobeys orresists any lawful order or process, ormisbehaves during a hearing or so nearthe place thereof as to obstruct the


787


same, or neglects to produce, after hav-ing been ordered to do so, any perti-nent book, paper or document, or re-fuses to appear after having been sub-poenaed, or upon appearing refuses totake the oath as a witness, or afterhaving taken the oath refuses to be ex-amined according to law, the deputycommissioner with the approval of theDirector, or the administrative lawjudge responsible for the adjudicationof the claim, shall certify the facts tothe Federal district court having juris-diction in the place in which he or sheis sitting (or to the U.S. District Courtfor the District of Columbia if he or sheis sitting in the District) which shallthereupon in a summary manner hearthe evidence as to the acts complainedof, and, if the evidence so warrants,punish such person in the same mannerand to the same extent as for a con-tempt committed before the court, orcommit such person upon the samecondition as if the doing of the forbid-den act had occurred with reference tothe process or in the presence of thecourt.

§ 725.352 Disqualification of adjudica-tion officer.

(a) No adjudication officer shall con-duct any proceedings in a claim inwhich he or she is prejudiced or partial,or where he or she has any interest inthe matter pending for decision. A de-cision to withdraw from the consider-ation of a claim shall be within the dis-cretion of the adjudication officer. Ifthat adjudication officer withdraws,another officer shall be designated bythe Director or the Chief Administra-tive Law Judge, as the case may be, tocomplete the adjudication of the claim.

(b) No adjudication officer shall bepermitted to appear or act as a rep-resentative of a party under this partwhile such individual is employed as anadjudication officer. No adjudicationofficer shall be permitted at any timeto appear or act as a representative inconnection with any case or claim inwhich he or she was personally in-volved. No fee or reimbursement shallbe awarded under this part to an indi-vidual who acts in violation of thisparagraph.

(c) No adjudication officer shall actin any claim involving a party which

employed such adjudication officerwithin one year before the adjudicationof such claim.

(d) Notwithstanding paragraph (a) ofthis section, no adjudication officershall be permitted to act in any claiminvolving a party who is related to theadjudication officer by consanguinityor affinity within the third degree asdetermined by the law of the placewhere such party is domiciled. Any ac-tion taken by an adjudication officer inknowing violation of this paragraphshall be void.

PARTIES AND REPRESENTATIVES

§ 725.360 Parties to proceedings.(a) Except as provided in § 725.361, no

person other than the Secretary ofLabor and authorized personnel of theDepartment of Labor shall participateat any stage in the adjudication of aclaim for benefits under this part, un-less such person is determined by theappropriate adjudication officer toqualify under the provisions of this sec-tion as a party to the claim. The fol-lowing persons shall be parties:

(1) The claimant;(2) A person other than a claimant,

authorized to execute a claim on suchclaimant’s behalf under § 725.301;

(3) Any coal mine operator notifiedunder § 725.412 of its possible liabilityfor the claim;

(4) Any insurance carrier of such op-erator; and

(5) The Director in all proceedings re-lating to a claim for benefits under thispart.

(b) A widow, child, parent, brother,or sister, or the representative of a de-cedent’s estate, who makes a showingin writing that his or her rights withrespect to benefits may be prejudicedby a decision of an adjudication officer,may be made a party.

(c) Any coal mine operator or prioroperator or insurance carrier which hasnot been notified under § 725.412 andwhich makes a showing in writing thatits rights may be prejudiced by a deci-sion of an adjudication officer may bemade a party.

(d) Any other individual may bemade a party if that individual’s rightswith respect to benefits may be preju-diced by a decision to be made.


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§ 725.361 Party amicus curiae.At the discretion of the Chief Admin-

istrative Law Judge or the administra-tive law judge assigned to the case, aperson or entity which is not a partymay be allowed to participate amicuscuriae in a formal hearing only as toan issue of law. A person may partici-pate amicus curiae in a formal hearingupon written request submitted withsupporting arguments prior to thehearing. If the request is granted, theadministrative law judge hearing thecase will inform the party of the extentto which participation will be per-mitted. The request may, however, bedenied summarily and without expla-nation.

§ 725.362 Representation of parties.(a) Except for the Secretary of Labor,

whose interests shall be represented bythe Solicitor of Labor or his or her des-ignee, each of the parties may appointan individual to represent his or her in-terest in any proceeding for determina-tion of a claim under this part. Suchappointment shall be made in writingor on the record at the hearing. A writ-ten notice appointing a representativeshall be signed by the party or his orher legal guardian and shall be sent tothe Office or, for representation at aformal hearing, to the Chief Adminis-trative Law Judge. In any case, suchrepresentative must be qualified under§ 725.363. No authorization for represen-tation or agreement between a claim-ant and representative as to theamount of a fee, filed with the SocialSecurity Administration in connectionwith a claim under part B of title IV ofthe Act, shall be valid under this part.A claimant who has previously author-ized a person to represent him or her inconnection with a claim originallyfiled under part B of title IV mayrenew such authorization by filing astatement to such effect with the Of-fice or appropriate adjudication officer.

(b) Any party may waive his or herright to be represented in the adjudica-tion of a claim. If an adjudication offi-cer determines, after an appropriate in-quiry has been made, that a claimantwho has been informed of his or herright to representation does not wishto obtain the services of a representa-tive, such adjudication officer shall

proceed to consider the claim in ac-cordance with this part, unless it is ap-parent that the claimant is, for anyreason, unable to continue without thehelp of a representative. However, itshall not be necessary for an adjudica-tion officer to inquire as to the abilityof a claimant to proceed without rep-resentation in any adjudication takingplace without a hearing. The failure ofa claimant to obtain representation inan adjudication taking place without ahearing shall be considered a waiver ofthe claimant’s right to representation.However, at any time during the proc-essing or adjudication of a claim, anyclaimant may revoke such waiver andobtain a representative.

§ 725.363 Qualification of representa-tive.

(a) Attorney. Any attorney in goodstanding who is admitted to practicebefore a court of a State, territory, dis-trict, or insular possession, or beforethe Supreme Court of the UnitedStates or other Federal court and isnot, pursuant to any provision of law,prohibited from acting as a representa-tive, may be appointed as a representa-tive.

(b) Other person. With the approval ofthe adjudication officer, any other per-son may be appointed as a representa-tive so long as that person is not, pur-suant to any provision of law, prohib-ited from acting as a representative.

§ 725.364 Authority of representative.

A representative, appointed andqualified as provided in §§ 725.362 and725.363, may make or give on behalf ofthe party he or she represents, any re-quest or notice relative to any proceed-ing before an adjudication officer, in-cluding formal hearing and review, ex-cept that such representative may notexecute a claim for benefits, unless heor she is a person designated in § 725.301as authorized to execute a claim. Arepresentative shall be entitled topresent or elicit evidence and make al-legations as to facts and law in anyproceeding affecting the party rep-resented and to obtain informationwith respect to the claim of such party


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to the same extent as such party. No-tice given to any party of any adminis-trative action, determination, or deci-sion, or request to any party for theproduction of evidence shall be sent tothe representative of such party andsuch notice or request shall have thesame force and effect as if it had beensent to the party represented.

§ 725.365 Approval of representative’sfees; lien against benefits.

No fee charged for representationservices rendered to a claimant withrespect to any claim under this partshall be valid unless approved underthis subpart. No contract or prioragreement for a fee shall be valid. Incases where the obligation to pay theattorney’s fee is upon the claimant, theamount of the fee awarded may bemade a lien upon the benefits dueunder an award and the adjudicationofficer shall fix, in the award approvingthe fee, such lien and the manner ofpayment of the fee. Any representativewho is not an attorney may be awardeda fee for services under this subpart,except that no lien may be imposedwith respect to such representative’sfee.

§ 725.366 Fees for representatives.(a) A representative seeking a fee for

services performed on behalf of aclaimant shall make application there-for to the deputy commissioner, admin-istrative law judge, or appropriate ap-pellate tribunal, as the case may be,before whom the services were per-formed. The application shall be filedand served upon the claimant and allother parties within the time limits al-lowed by the deputy commissioner, ad-ministrative law judge, or appropriateappellate tribunal. The applicationshall be supported by a complete state-ment of the extent and character of thenecessary work done, and shall indi-cate the professional status (e.g., attor-ney, paralegal, law clerk, lay rep-resentative or clerical) of the personperforming such work, and the cus-tomary billing rate for each such per-son. The application shall also includea listing of reasonable unreimbursedexpenses, including those for travel, in-curred by the representative or an em-ployee of a representative in establish-

ing the claimant’s case. Any fee re-quested under this paragraph shall alsocontain a description of any fee re-quested, charged, or received for serv-ices rendered to the claimant beforeany State or Federal court or agencyin connection with a related matter.

(b) Any fee approved under paragraph(a) of this section shall be reasonablycommensurate with the necessarywork done and shall take into accountthe quality of the representation, thequalifications of the representative,the complexity of the legal issues in-volved, the level of proceedings towhich the claim was raised, the level atwhich the representative entered theproceedings, and any other informationwhich may be relevant to the amountof fee requested. No fee approved shallinclude payment for time spent inpreparation of a fee application. No feeshall be approved for work done onclaims filed between December 30, 1969,and June 30, 1973, under part B of titleIV of the Act, except for services ren-dered on behalf of the claimant in re-gard to the review of the claim undersection 435 of the Act and part 727 ofthis subchapter.

(c) In awarding a fee, the appropriateadjudication officer shall consider, andshall add to the fee, the amount of rea-sonable and unreimbursed expenses in-curred in establishing the claimant’scase. Reimbursement for travel ex-penses incurred by an attorney shall bedetermined in accordance with the pro-visions of § 725.459(a). No reimburse-ment shall be permitted for expensesincurred in obtaining medical or otherevidence which has previously beensubmitted to the Office in connectionwith the claim.

(d) Upon receipt of a request for ap-proval of a fee, such request shall be re-viewed and evaluated by the appro-priate adjudication officer and a feeaward issued. Any party may requestreconsideration of a fee awarded by theadjudication officer. A revised or modi-fied fee award may then be issued, ifappropriate.

(e) Each request for reconsiderationor review of a fee award shall be inwriting and shall contain supportingstatements or information pertinent toany increase or decrease requested. If afee awarded by a deputy commissioner


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20 CFR Ch. VI (4–1–98 Edition)§ 725.367

is disputed, such award shall be appeal-able directly to the Benefits ReviewBoard. In such a fee dispute case, therecord before the Board shall consist ofthe order of the deputy commissionerawarding or denying the fee, the appli-cation for a fee, any written statementin opposition to the fee and the docu-mentary evidence contained in the filewhich verifies or refutes any itemclaimed in the fee application.



§ 725.367 Payment of a claimant’s at-torney’s fee by responsible opera-tor.

(a) If an operator declines to pay anybenefits on or before the 30th day afterreceiving written notice of its liabilityfor a claim on the ground that there isno liability for benefits within the pro-visions of the Act, and the person seek-ing benefits shall thereafter have uti-lized the services of an attorney in thesuccessful prosecution of the claim,there shall be awarded, in addition tothe award of benefits, in an order, areasonable attorney’s fee against theoperator or carrier in an amount ap-proved by the deputy commissioner,administrative law judge, Board, orcourt as the case may be, which shallbe paid promptly and directly by theoperator or carrier to the claimant’sattorney in a lump sum after the orderbecomes final.

(b) Section 205(a) of the Black LungBenefits Amendments of 1981, Pub. L.97–119, amended section 422 of the Actand relieved operators and carriersfrom liability for the payment of bene-fits on certain claims. Payment of ben-efits on those claims was made the re-sponsibility of the Trust Fund. Theclaims subject to this transfer of liabil-ity are described in § 725.496 of thispart. On claims subject to the transferof liability described above the TrustFund will pay all fees and costs whichhave been or will be awarded to claim-ant’s attorneys which were or wouldhave become the liability of an opera-tor or carrier but for the enactment ofthe 1981 Amendments and which havenot already been paid by such operator

or carrier. Section 9501(d)(7) of the In-ternal Revenue Code, which was alsoenacted as a part of the 1981 Amend-ments to the Act, expressly prohibitsthe Trust Fund from reimbursing anoperator or carrier for any attorneyfees or costs which it has paid on casessubject to the transfer of liability pro-visions.

[48 FR 24291, May 31, 1983]

§ 725.401 Claims development—gen-eral.

After a claim has been received bythe deputy commissioner, the deputycommissioner shall take such action asis necessary to develop, process, andmake determinations with respect tothe claim as provided in this subpart.

§ 725.402 Approved State workers’compensation law.

If a deputy commissioner determinesthat any claim filed under this part isone subject to adjudication under aworkers’ compensation law approvedunder part 722 of this subchapter, he orshe shall advise the claimant of thisdetermination and of the Act’s require-ment that the claim must be filedunder the applicable State workers’compensation law. The deputy commis-sioner shall then prepare a proposed de-cision and order dismissing the claimfor lack of jurisdiction pursuant to§ 725.418 and proceed as appropriate.

§ 725.403 Requirement to file underState workers’ compensation law—Section 415 claims.

(a) No benefits shall be payable to oron behalf of a claimant who has filed aclaim under section 415 of part B oftitle IV of the Act, for any period ofeligibility occurring between July 1,and December 31, 1973, unless theclaimant has filed and diligently pur-sued a claim for benefits under an ap-plicable State workers’ compensationlaw. A State workers’ compensationclaim need not be filed where filingwould be futile. It shall be determinedthat the filing of a State claim wouldbe futile when:

(1) The period within which the claimmay be filed under such law has ex-pired; or


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(2) Pneumoconiosis as defined in part718 of this subchapter is not compen-sable under such law; or

(3) The maximum amount of com-pensation or the maximum number ofcompensation payments allowableunder such law has already been paid;or

(4) The claimant does not meet oneor more conditions of eligibility forworkers’ compensation paymentsunder applicable State law; or

(5) The claimant otherwise estab-lishes to the satisfaction of the Officethat the filing of a claim under Statelaw would be futile.

(b) Where the Office determines thata claimant is required to file a Stateclaim under this section, the Officeshall so notify the claimant. Such no-tice shall instruct the claimant to filea State claim within 30 days of suchnotice. If no such State claim is filedwithin the 30-day period, no benefitsshall be payable under this part to theclaimant for any period between July1, and December 31, 1973.

(c) The failure of a claimant to com-ply with paragraph (a) of this sectionshall not absolve any operator of its li-ability for the payment of benefits to aclaimant for periods of eligibility oc-curring on or after January 1, 1974.

(d) The deputy commissioner may de-termine that a claimant is ineligiblefor benefits under section 415 of part Bof title IV of the Act without requiringthe claimant to file a claim under aState workers’ compensation law.

§ 725.404 Development of evidence—general.

(a) Employment history. Each claimantshall furnish the deputy commissionerwith a complete and detailed history ofthe coal miner’s employment and, uponrequest, supporting documentation.

(b) Matters of record. Where it is nec-essary to obtain proof of age, marriageor termination of marriage, death,family relationship, dependency (seesubpart B of this part), or any otherfact which may be proven as a matterof public record, the claimant shall fur-nish such proof to the deputy commis-sioner upon request.

(c) Documentary evidence. If a claim-ant is required to submit documents tothe deputy commissioner, the claimant

shall submit either the original, a cer-tified copy or a clear readable copythereof. The Deputy commissioner oradministrative law judge may requirethe submission of an original documentor certified copy thereof, if necessary.

(d) Submission of insufficient evidence.In the event a claimant submits insuf-ficient evidence regarding any matter,the deputy commissioner shall informthe claimant of what further evidenceis necessary and request that such evi-dence be submitted within a specifiedreasonable time which may, upon re-quest, be extended for good cause.

§ 725.405 Development of medical evi-dence; scheduling of medical exami-nations and tests.

(a) Upon receipt of a claim, the dep-uty commissioner shall ascertainwhether the claim was filed by or onaccount of a miner as defined in§ 725.202(a), and in the case of a claimfiled on account of a deceased miner,whether the claim was filed by an eligi-ble survivor of such miner as defined insubpart B of this part.

(b) In the case of a claim filed by oron behalf of a miner, the deputy com-missioner shall, where necessary,schedule the claimant for a medical ex-amination and testing under § 725.406.

(c) In the case of a claim filed by oron behalf of a survivor of a miner, thedeputy commissioner shall obtainwhatever medical evidence is necessaryand available for the development andevaluation of the claim.

(d) The deputy commissioner shall,where appropriate, collect other evi-dence necessary to establish:

(1) The nature and duration of theminer’s employment; and

(2) All other matters relevant to thedetermination of the claim.

(e) If at any time during the process-ing of the claim by the deputy commis-sioner, the evidence establishes thatthe claimant is not entitled to benefitsunder the Act, the deputy commis-sioner may terminate evidentiary de-velopment of the claim and proceed asappropriate.

§ 725.406 Medical examinations andtests.

(a) Medical examinations and testsauthorized by the deputy commissioner


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shall be conducted, if possible, in thevicinity of the miner’s residence byphysicians or in medical facilities se-lected from a list compiled by the Sec-retary, or by a physician or medical fa-cility approved by the deputy commis-sioner at the miner’s request.

(b) If any medical examination ortest conducted under paragraph (a) ofthis section is not administered or re-ported in compliance with the provi-sions of part 718 of this subchapter, thedeputy commissioner shall schedulethe miner for further examination andtesting where necessary and appro-priate.

(c) The cost of any medical examina-tion or test authorized under this sec-tion, including the cost of travel to andfrom the examination, shall be paid bythe fund. No reimbursement for over-night accommodations shall be author-ized unless the deputy commissionerdetermines that an adequate testing fa-cility is unavailable within one day’sround trip travel by automobile fromthe miner’s residence. The fund shallbe reimbursed for such payments by anoperator, if any, found liable for thepayment of benefits to the claimant.

§ 725.407 Additional medical evidence.(a) If, at any time after the comple-

tion of initial medical examinationsand tests, unresolved medical questionsremain, the deputy commissioner maycause the claimant to be examined by aphysician selected by the deputy com-missioner.

(b) Any miner dissatisfied with theresults of the medical examinations ortests conducted under § 725.406 may ob-tain further medical examinations ortests and submit them to the deputycommissioner. Such further examina-tions or tests shall be reimbursable bythe fund, or by a responsible coal oper-ator where appropriate, if the claimantis finally adjudicated entitled to bene-fits and if such further examinations ortests were relevant to the determina-tion of the claim.

(c) If additional medical evidence isobtained in accordance with paragraph(a) of this section, the deputy commis-sioner may order the physician se-lected to retest or reexamine the minerto do so without the presence or par-ticipation of any other physician who

previously examined the miner, andwithout benefit of the conclusions ofany other physician who has examinedthe miner.

§ 725.408 Refusal to submit to medicalexaminations or tests.

If an adjudication officer determinesthat a miner has unreasonably refusedto submit to medical examinations ortests scheduled under §§ 725.406 or725.407(a), all evidentiary developmentof the claim shall be suspended and theadjudication officer shall proceed todeny the claim by reason of abandon-ment (§ 725.409) or by dismissal(§ 725.465) as is appropriate.

§ 725.409 Denial of a claim by reasonof abandonment.

(a) A claim may be denied at anytime by the deputy commissioner byreason of abandonment where theclaimant fails:

(1) To undergo a required medical ex-amination without good cause; or,

(2) To submit evidence sufficient tomake a determination of the claim; or,

(3) To pursue the claim with reason-able diligence.

(b) If the deputy commissioner deter-mines that a denial by reason of aban-donment is appropriate, he or she shallnotify the claimant of the reasons forsuch denial and of the action whichmust be taken to avoid a denial by rea-son of abandonment. If there is no re-sponse to the notice within 30 daysafter such notice is sent, the claimshall be considered denied by reason ofabandonment. If the claimant respondsin a timely fashion, indicating a desireto pursue the claim, by requesting ahearing or indicating the intent to sub-mit additional evidence, the deputycommissioner shall, if a hearing is re-quested, proceed in accordance with§ 725.412 or allow a reasonable time ofnot less than 60 days for the claimantto take the specified remedial action.If the claimant completes the actionrequested within the time allowed, theclaim shall be developed, processed andadjudicated as specified in this part. Ifthe claimant does not fully complywith the action requested by the dep-uty commissioner, the deputy commis-sioner shall so notify the claimant. If


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the claimant does not request a hear-ing or fully comply with the action re-quested by the deputy commissionerwithin 30 days of such notification, theclaim shall be considered denied byreason of abandonment, except that anew claim may be filed at any time andnew evidence submitted where the re-quirements of § 725.310 are not met.

ADJUDICATION BY THE DEPUTYCOMMISSIONER

§ 725.410 Initial findings by the deputycommissioner.

(a) Based upon the evidence devel-oped, the deputy commissioner maymake an initial finding with respect tothe claim.

(b) If the evidence supports an initialfinding of eligibility, and it has beendetermined that a coal mine operatormay be liable for the claim, the deputycommissioner shall proceed in accord-ance with § 725.412. If no operator canbe identified, the deputy commissionershall proceed in accordance with§ 725.411.

(c) If the evidence submitted does notsupport an initial finding of eligibility,the deputy commissioner shall so no-tify the claimant in writing. This noti-fication shall specify the reasons whythe claim cannot be approved, the addi-tional evidence necessary to establishentitlement, the right of the claimantto submit additional evidence, and theright to request a hearing. Within 60days from the mailing of such notice,unless such period is extended by thedeputy commissioner for good causeshown, the claimant may submit newevidence or request a hearing. If theclaimant:

(1) Takes no action within the speci-fied 60 day period, the claim shall beconsidered denied by reason of aban-donment (see § 725.409).

(2) Submits new evidence within thespecified 60 day period, the deputycommissioner shall reconsider the ini-tial finding, taking into account theadditional evidence submitted. If thenew evidence supports a finding of enti-tlement the deputy commissioner shallproceed in accordance with paragraph(b) of this section. If the new evidencedoes not support a finding of entitle-ment, the deputy commissioner shall

notify the claimant in writing of thisfact and the reasons therefor, and thathe or she may request a hearing within60 days after receipt of such notice un-less the period is extended by the dep-uty commissioner for good causeshown. If no hearing is requested, theclaim shall be deemed denied by reasonof abandonment (see § 725.409).

(d) Unless an earlier operator identi-fication has been made, if a hearing isrequested under paragraph (c) of thissection, the deputy commissioner shallidentify the coal mine operator, if any,which may be liable for the payment ofbenefits to the claimant and proceed inaccordance with § 725.412. If no such op-erator can be identified, the deputycommissioner may schedule a con-ference (see § 725.416) or refer the claimto the Office of Administrative LawJudges for appropriate proceedings.

§ 725.411 Adjudication upon initialfindings of eligibility and no opera-tor responsibility.

Where the deputy commissioner hasfound that the claimant is eligible andthat there is no operator responsiblefor the payment of benefits, the deputycommissioner shall issue a proposeddecision and order including findings offact and conclusions of law as requiredby § 725.418 and authorize the paymentof benefits. The claimant shall have 30days after the date of issuance of theproposed decision and order withinwhich to reject any or all of its terms.If the claimant does not reject the pro-posed decision and order, either inwhole or in part, within this 30-day pe-riod, it will become final and effective.If for any reason the claimant rejects aproposed decision and order, the deputycommissioner may take such action asis appropriate including adjustment ofthe benefits to the level authorized bythe uncontested portion of the pro-posed decision and order, if appro-priate.

§ 725.412 Identification and notifica-tion of responsible operator.

(a) At any time during the processingof a claim under this part, after suffi-cient evidence has been made availableto the deputy commissioner, the dep-uty commissioner may identify a coalminer operator (see § 725.491) which


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may be liable for the payment of theclaim in accordance with the criteriacontained in subpart F of this part.Such identification shall be made assoon after the filing of the claim as theevidence obtained permits. If the claimis subject to review under part 727 ofthis subchapter, the deputy commis-sioner may proceed to make initialfindings (§ 725.410) with respect to aclaim before identifying a potentiallyliable coal mine operator. In the caseof a claim subject to review under part727 of the subchapter which is deniedby reason of abandonment (see§ 725.409), the deputy commissioner maydecline to identify and notify an opera-tor, unless a timely request for a hear-ing is made by the claimant.

(b) After the deputy commissioneridentifies an operator which may beliable for payment of benefits, the dep-uty commissioner shall notify such op-erator in writing. Such notificationshall include a copy of the claimant’sclaim form and a copy of all documen-tary evidence pertaining to the claimobtained by the deputy commissioner,if any, and the initial findings of thedeputy commissioner, if any. All docu-ments sent to an operator in accord-ance with this paragraph shall also beprovided by the deputy commissionerto the claimant or his or her author-ized representative.

(c) If within one year after the finaladjudication of a claim, the adjudica-tion officer determines that an opera-tor which may be liable for the pay-ment of benefits has not been notifiedunder this section, such adjudicationofficer shall give notice of possible li-ability and an opportunity to respondto such operator. The adjudication offi-cer shall then take such further actionon the claim as may be appropriate.There shall be no time limit applicableto a later identification of an operatorunder this paragraph if the operatorfraudulently concealed its identity asan employer of the miner.

(d) If, in any case, there is a disputebetween two or more operators as towhich may be liable for the payment ofbenefits to the claimant, all such oper-ators shall be notified under this sec-tion and the issue of which operator isliable shall be determined by the ap-propriate adjudication officer.

§ 725.413 Operator’s response to notifi-cation.

(a) Within 30 days after receipt of no-tification issued under § 725.412, unlesssuch period is extended by the deputycommissioner for good cause shown, orin the interest of justice, a notified op-erator shall indicate an intent to ac-cept or contest liability. If notice isgiven to the operator after initial find-ings have been made, the operator shallindicate its agreement or disagreementwith each such finding. If notice isgiven to the operator before initialfindings have been made, the operatorshall indicate agreement or disagree-ment with the operator’s identificationas a potentially liable coal mine opera-tor. An operator’s response to notifica-tion shall be in writing and shall besent to the deputy commissioner, theclaimant, and all other parties to theclaim.

(b)(1) If the operator accepts liabilityfor the claim after initial findings havebeen made, the deputy commissionershall issue a proposed decision andorder under § 725.418.

(2) If the operator contests its liabil-ity or any of the initial findings of thedeputy commissioner, if any, or if thedeputy commissioner has determinedthe claimant to be ineligible for bene-fits, the deputy commissioner shallproceed to adjudicate the claim in ac-cordance with this subpart.

(3) If the operator fails to respondwithin the specified period, such opera-tor shall be deemed to have acceptedthe initial findings of the deputy com-missioner when made and shall not, ex-cept as provided in § 725.463, be per-mitted to raise issues or present evi-dence with respect to issues inconsist-ent with the initial findings in any fur-ther proceeding conducted with respectto the claim. In a case where an opera-tor has failed to respond to notifica-tion, such failure shall be considered awaiver of such operator’s right to con-test the claim, unless the operator’sfailure to respond to notice is excusedfor good cause shown, and the deputycommissioner may proceed to issue aproposed decision and order pursuantto § 725.418, undertake further develop-ment, hold a conference, or refer theclaim for a hearing.


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(c) Any operator or carrier may inwriting designate an office or personauthorized to receive notice of a claimon behalf of such operator or carrier.All such notices to the operator or car-rier shall thereafter be sent to the des-ignated office or person.

§ 725.414 Development of operator’sevidence, claimant’s rebuttal evi-dence.

(a) If an operator notified of its pos-sible liability for a claim after the dep-uty commissioner has made initialfindings (§ 725.410) with respect to theclaim contests the claim, such operatorshall be allowed a reasonable time, tobe determined by the deputy commis-sioner from the date on which the no-tice of contest is sent, within which tosubmit to the deputy commissionerand exchange with all other parties allavailable evidence relevant to any con-tested issue in the claim. During thisperiod, a notified operator may havethe miner examined by a physician se-lected by such operator, except that nominer shall be required to travel morethan 100 miles from his or her place ofresidence for the purpose of submittingto a medical examination requested byan operator, unless a trip of greaterdistance is authorized in writing by thedeputy commissioner.

(b) If an operator is notified of itspossible liability for a claim before thedeputy commissioner has made initialfindings with respect to the claim or ifno initial findings are made, and suchoperator indicates its intent to contestthe claim, such operator shall prompt-ly undertake the development of itsevidence, including any medical evi-dence which may be obtained, if the op-erator seeks to have the miner exam-ined by a physician which it selects.Any evidence obtained by an operatorshall be sent to the deputy commis-sioner and all other parties to theclaim. On the basis of the operator’sevidence and all other evidence submit-ted to the deputy commissioner, thedeputy commissioner may make initialfindings with respect to the claim ormay take such other action as is appro-priate. If the deputy commissionermakes an initial finding that theclaimant is ineligible for benefits, thedeputy commissioner shall proceed to

consider the claim as provided in§ 725.410(c). If the deputy commissionermakes an initial finding that theclaimant is eligible for benefits andthat the notified operator is liable forsuch benefits, the parties shall be sonotified. Within 30 days from the dateon which notice of the deputy commis-sioner’s initial findings of eligibilityand liability is sent to the parties, eachparty shall either accept or contestany or all of such initial findings andshall, except as provided in paragraph(d) of this section, submit any avail-able evidence not previously submit-ted, to the deputy commissioner. Thedeputy commissioner shall then pro-ceed to adjudicate the claim under§ 725.415. The failure by an operator torespond to initial findings of eligibilitymade under this paragraph shall havethe same consequences as an operator’sfailure to respond to notice of a claim(see § 725.413(b)(3)).

(c) The report of any medical exam-ination or test conducted under thissection, or any other evidence submit-ted, shall be submitted to the deputycommissioner and sent to the otherparties to the claim within the applica-ble period set forth in this section, un-less the deputy commissioner enlargessuch period for good cause shown or inthe interest of justice.

(d) Upon receipt of a medical reportobtained by an operator under this sec-tion, a claimant shall, upon request, beallowed a reasonable time, as deter-mined by the deputy commissionerfrom the date on which the operator’sreport is received, to obtain additionalevidence in support of the claim. Suchevidence shall be obtained, submittedto the deputy commissioner, and ex-changed with the other parties withinthe period allowed, unless the period isenlarged by the deputy commissionerfor good cause shown.

(e) (1) Any documentary evidence ob-tained by a party during the time aclaim is pending before a deputy com-missioner, which is withheld from thedeputy commissioner or any otherparty to the claim, shall not be admit-ted in any later proceedings held withrespect to the claim in the absence ofextraordinary circumstances, unless


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the admission of such evidence is re-quested by the Director or such otherparty.

(2) If an operator notified of a claimdoes not undertake a good faith effortto develop its evidence while the claimis pending before the deputy commis-sioner, the deputy commissioner shallproceed to adjudicate the claim in ac-cordance with § 725.415. A notified oper-ator which does not undertake a goodfaith effort to develop its evidence be-fore the deputy commissioner shall beconsidered to have waived its right toeither have the claimant examined bya physician of its choosing or have theclaimant’s evidence submitted for re-view by a physician of its choosing.

§ 725.415 Action by the deputy commis-sioner after development of opera-tor’s evidence.

(a) At the end of the period permittedunder § 725.414 for the submission ofevidence, the deputy commissionershall review the claim on the basis ofall evidence submitted.

(b) After review of all evidence sub-mitted, the deputy commissioner mayschedule a conference in accordancewith § 725.416, issue a proposed decisionand order in accordance with § 725.418,forward the claim to the Office of Ad-ministrative Law Judges in accordancewith § 725.421, or take such other actionas the deputy commissioner considersappropriate.

§ 725.416 Conferences.(a) At the conclusion of the period

permitted by § 725.414 for the submis-sion of evidence, the deputy commis-sioner may conduct an informal con-ference in any claim where it appearsthat such conference will assist in thevoluntary resolution of any issueraised with respect to the claim. Theconference proceedings shall not bestenographically reported and sworntestimony shall not be taken.

(b) The deputy commissioner shallnotify the parties of a definite timeand place for the conference and mayin his or her discretion, or on the mo-tion of any party, cancel or reschedulea conference.

(c) Any representative of an operator,of an operator’s insurance carrier, or ofa claimant must have sufficient au-

thority to stipulate facts or issues oragree to a final dispositon of the claim.

(d) Procedures to be followed at aconference shall be within the discre-tion of the deputy commissioner. Inthe case of a conference involving anunrepresented claimant the deputycommissioner shall fully inform theclaimant of the consequences of anyagreement the claimant is asked tosign. If it is apparent that the unrepre-sented claimant does not understandthe nature or effect of the proceedings,the deputy commissioner shall not per-mit the execution of any stipulation oragreement in the claim unless it isclear that the best interests of theclaimant are served thereby.

§ 725.417 Action at the conclusion ofconference.

(a) At the conclusion of a conference,the deputy commissioner shall preparea stipulation of contested anduncontested issues which shall besigned by the parties and the deputycommissioner. If a hearing is con-ducted with respect to the claim, thisstipulation shall be submitted to theOffice of Administrative Law Judgesand placed in claim record.

(b) In any case, where appropriate,the deputy commissioner may permit areasonable time for the submission ofadditional evidence following a con-ference.

(c) Within 20 days after the termi-nation of all conference proceedings,the deputy commissioner shall prepareand send to the parties a memorandumof conference, on a form prescribed bythe Office, summarizing the conferenceand including the following:

(1) Date, time and place of con-ference;

(2) Names, addresses, telephone num-bers, and status (i.e., claimant, attor-ney, operator, carrier’s representative,etc.);

(3) Issues discussed at conference;(4) Additional material presented

(i.e., medical reports, employment re-ports, marriage certificates, birth cer-tificates, etc.);

(5) Issues resolved at conference; and(6) Deputy commissioner’s rec-

ommendation.(d) Each party shall, in writing, ei-

ther accept or reject, in whole or in


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part, the deputy commissioner’s rec-ommendation, stating the reasons forsuch rejection. If no reply is receivedwithin 30 days from the date on whichthe recommendation was sent to par-ties, the recommendation shall bedeemed accepted.

§ 725.418 Proposed decision and order.(a) A proposed decision and order is a

document, issued by the deputy com-missioner after the evidentiary devel-opment of the claim is completed andall contested issues, if any, are joined,which purports to resolve a claim onthe basis of the evidence submitted toor obtained by the deputy commis-sioner. A proposed decision and ordershall be considered a final adjudicationof a claim only as provided in § 725.419.A proposed decision and order may beissued by the deputy commissioner inany claim and at any time during theadjudication of a claim if:

(1) Issuance is authorized or requiredby this part; or,

(2) The deputy commissioner deter-mines that its issuance will expeditethe adjudication of the claim.

(b) A proposed decision and ordershall contain findings of fact and con-clusions of law and an appropriateorder shall be served on all parties tothe claim.

§ 725.419 Response to proposed deci-sion and order.

(a) Within 30 days after the date ofissuance of a proposed decision andorder, any party may, in writing, re-quest a revision of the proposed deci-sion and order or a hearing. If a hear-ing is requested, the deputy commis-sioner shall refer the claim to the Of-fice of Administrative Law Judges (see§ 725.421).

(b) Any response made by a party toa proposed decision and order shallspecify the findings and conclusionswith which the responding party dis-agrees, and shall be served on the dep-uty commissioner and all other partiesto the claim.

(c) If a timely request for revision ofa proposed decision and order is made,the deputy commissioner may amendthe proposed decision and order, as cir-cumstances require, and serve the re-vised proposed decision and order on all

parties or take such other action as isappropriate. If a revised proposed deci-sion and order is issued, each party tothe claim shall have 30 days from thedate of issuance of that revised pro-posed decision and order within whichto request a hearing.

(d) If no response to a proposed deci-sion and order is sent to the deputycommissioner within the period de-scribed in paragraph (a) of this section,or if no response to a revised proposeddecision and order is sent to the deputycommissioner within the period de-scribed in paragraph (c) of this section,the proposed decision and order shallbecome a final decision and order,which is effective upon the expirationof the applicable 30-day period. Once aproposed decision and order or revisedproposed decision and order becomesfinal and effective, all rights to furtherproceedings with respect to the claimshall be considered waived, except asprovided in § 725.310.

§ 725.420 Initial determinations.(a) Section 9501(d)(1)(A)(1) of the In-

ternal Revenue Code provides that theBlack Lung Disability Trust Fundshall begin the payment of benefits onbehalf of an operator in any case inwhich the operator liable for such pay-ments ‘‘has not commenced payment ofsuch benefits within 30 days after thedate of an initial determination of eli-gibility by the Secretary * * *.’’ Forclaims filed on or after January 1, 1982,the payment of such interim benefitsfrom the Fund is limited to ‘‘benefitsaccruing after the date of such initialdetermination * * *.’’

(b) Except as provided in § 725.415 ofthis subpart, after the deputy commis-sioner has determined that a claimantis eligible for benefits, on the basis ofall evidence submitted by a claimantand operator, and has determined thata hearing will be necessary to resolvethe claim, the deputy commissionershall in writing so inform the partiesand direct the operator to begin thepayment of benefits to the claimant inaccordance with § 725.522. The date onwhich this writing is sent to the par-ties shall be considered the date of ini-tial determination of the claim.

(c) If a notified operator refuses tocommence payment of a claim within


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30 days from the date on which an ini-tial determination is made under thissection, benefits shall be paid by thefund to the claimant in accordancewith § 725.522, and the operator shall beliable to the fund, if such operator isdetermined liable for the claim, for allbenefits paid by the fund on behalf ofsuch operator, and, in addition, suchpenalties and interest as are appro-priate.


§ 725.421 Referral of a claim to the Of-fice of Administrative Law Judges.

(a) In any claim for which a formalhearing is requested or ordered, andwith respect to which the deputy com-missioner has completed developmentand adjudication without having re-solved all contested issues in theclaim, the deputy commissioner shallrefer the claim to the Office of Admin-istrative Law Judges for a hearing. Ifthe deputy commissioner with jurisdic-tion over the claim is located at anyplace outside Washington, DC, suchdeputy commissioner shall forward aclaim with respect to which a hearingis required by this part to the DCMWCin Washington, DC, which shall referthe claim to the Office of Administra-tive Law Judges for appropriate pro-ceedings.

(b) In any case referred to the Officeof Administrative Law Judges underthis section, the deputy commissionershall transmit to that office the follow-ing documents, which shall be placed inthe record at the hearing subject to theobjection of any party:

(1) Copies of the claim form or forms;(2) any statement, document, or plead-ing submitted by a party to the claim;(3) a copy of the notification to an op-erator of its possible liability for theclaim; (4) all evidence submitted to thedeputy commissioner under this part;(5) any written stipulation of law orfact or stipulation of contested anduncontested issues entered into by theparties; (6) any pertinent forms submit-ted to the deputy commissioner; (7) thestatement by the deputy commissionerof contested and uncontested issues inthe claim; and (8) the deputy commis-sioner’s initial determination of eligi-bility or other documents necessary to

establish the right of the fund to reim-bursement, if appropriate. Copies of thetransmittal notice shall also be sent toall parties to the claim.

(c) A party may at any time requestand obtain from the deputy commis-sioner copies of documents transmittedto the Office of Administrative LawJudges under paragraph (b) of this sec-tion. If the party has previously beenprovided with such documents, addi-tional copies may be sent to the partyupon the payment of a copying fee tobe determined by the deputy commis-sioner.


§ 725.422 Legal assistance.The Secretary or his or her designee

may, upon request, provide a claimantwith legal assistance in processing aclaim under the Act. Such assistancemay be made available to a claimant inthe discretion of the Solicitor of Laboror his or her designee at any time priorto or during the time in which theclaim is being adjudicated and shall befurnished without charge to the claim-ant. Representation of a claimant inadjudicatory proceedings shall not beprovided by the Department of Laborunless it is determined by the Solicitorof Labor that such representation is inthe best interests of the black lungbenefits program. In no event shall rep-resentation be provided to a claimantin a claim with respect to which theclaimant’s interests are adverse tothose of the Secretary of Labor or thefund.

Subpart E—Hearings

§ 725.450 Right to a hearing.Any party to a claim (see § 725.360)

shall have a right to a hearing concern-ing any contested issue of fact or lawunresolved by the deputy commis-sioner. There shall be no right to ahearing until the processing and adju-dication of the claim by the deputycommissioner has been completed.There shall be no right to a hearing ina claim with respect to which a deter-mination of the claim made by the dep-uty commissioner has become final andeffective in accordance with this part.


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§ 725.451 Request for hearing.After the completion of proceedings

before the deputy commissioner, or asis otherwise indicated in this part, anyparty may in writing request a hearingon any contested issue of fact or law. Adeputy commissioner may on his or herown initiative refer a case for hearing.If a hearing is requested, or if a deputycommissioner determines that a hear-ing is necessary to the resolution ofany issue, the claim shall be referred tothe Chief Administrative Law Judgefor a hearing under § 725.421.

§ 725.452 Type of hearing; parties.(a) A hearing held under this part

shall be conducted by an administra-tive law judge designated by the ChiefAdministrative Law Judge. Except asotherwise provided by this part, allhearings shall be conducted in accord-ance with the provisions of 5 U.S.C. 554et seq.

(b) All parties to a claim shall be per-mitted to participate fully at a hearingheld in connection with such claim.

(c) A full evidentiary hearing neednot be conducted if a party moves forsummary judgment and the adminis-trative law judge determines that thereis no genuine issue as to any materialfact and that the moving party is enti-tled to the relief requested as a matterof law. All parties shall be entitled torespond to the motion for summaryjudgment prior to decision thereon.

§ 725.453 Notice of hearing.All parties shall be given at least 30

days written notice of the date andplace of a hearing and the issues to beresolved at the hearing. Such noticeshall be sent to each party or rep-resentative by certified mail.

§ 725.453A Time and place of hearing.(a) The Chief Administrative Law

Judge shall assign a definite time andplace for a formal hearing, and shall,where possible, schedule the hearing tobe held at a place within 75 miles of theclaimant’s residence unless an alter-nate location is requested by theclaimant.

(b) If the claimant’s residence is notin any State, the Chief AdministrativeLaw Judge may, in his or her discre-

tion, schedule the hearing in the coun-try of the claimant’s residence.

(c) The Chief Administrative LawJudge or the administrative law judgeassigned the case may in his or her dis-cretion direct that a hearing with re-spect to a claim shall begin at one lo-cation and then later be reconvened atanother date and place.

§ 725.454 Change of time and place forhearing; transfer of cases.

(a) The Chief Administrative LawJudge or administrative law judge as-signed the case may change the timeand place for a hearing, either on his orher own motion or for good causeshown by a party. The administrativelaw judge may adjourn or postpone thehearing, or reopen the hearing for thereceipt of additional evidence, for goodcause shown, at any time prior to themailing to the parties of the decisionin the case. Unless otherwise agreed, atleast 10 days notice shall be given tothe parties of any change in the timeor place of hearing.

(b) The Chief Administrative LawJudge may for good cause shown trans-fer a case from one administrative lawjudge to another.

§ 725.455 Hearing procedures; gen-erally.

(a) General. The purpose of any hear-ing conducted under this subpart shallbe to resolve contested issues of fact orlaw. Except as provided in§ 725.421(b)(8), any findings or deter-minations made with respect to aclaim by a deputy commissioner shallnot be considered by the administra-tive law judge.

(b) Evidence. The administrative lawjudge shall at the hearing inquire fullyinto all matters at issue, and shall notbe bound by common law or statutoryrules of evidence, or by technical orformal rules of procedure, except asprovided by 5 U.S.C. 554 and this sub-part. The administrative law judgeshall receive into evidence the testi-mony of the witnesses and parties, theevidence submitted to the Office of Ad-ministrative Law Judges by the deputycommissioner under § 725.421, and suchadditional evidence as may be submit-ted in accordance with the provisionsof this subpart. The administrative law


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20 CFR Ch. VI (4–1–98 Edition)§ 725.456

judge may entertain the objections ofany party to the evidence submittedunder this section.

(c) Procedure. The conduct of thehearing and the order in which allega-tions and evidence shall be presentedshall be within the discretion of the ad-ministrative law judge and shall affordthe parties an opportunity for a fairhearing.

§ 725.456 Introduction of documentaryevidence.

(a) All documents transmitted to theOffice of Administrative Law Judgesunder § 725.421 shall be placed into evi-dence by the administrative law judgeas exhibits of the Director, subject toobjection by any party.

(b)(1) Any other documentary mate-rial, including medical reports, whichwas not submitted to the deputy com-missioner, may be received in evidencesubject to the objection of any party, ifsuch evidence is sent to all other par-ties at least 20 days before a hearing isheld in connection with the claim.

(2) Documentary evidence, which isnot exchanged with the parties in ac-cordance with this paragraph, may beadmitted at the hearing with the writ-ten consent of the parties or on therecord at the hearing, or upon a show-ing of good cause why such evidencewas not exchanged in accordance withthis paragraph. If documentary evi-dence is not exchanged in accordancewith paragraph (b)(1) of this sectionand the parties do not waive the 20-dayrequirement or good cause is notshown, the administrative law judgeshall either exclude the late evidencefrom the record or remand the claim tothe deputy commissioner for consider-ation of such evidence.

(3) A medical report which is notmade available to the parties in ac-cordance with paragraph (b)(1) of thissection shall not be admitted into evi-dence in any case unless the hearingrecord is kept open for at least 30 daysafter the hearing to permit the partiesto take such action as each considersappropriate in response to such evi-dence. If, in the opinion of the adminis-trative law judge, evidence is withheldfrom the parties for the purpose of de-laying the adjudication of the claim,the administrative law judge may ex-

clude such evidence from the hearingrecord and close the record at the con-clusion of the hearing.

(4) Notwithstanding any other provi-sion of this paragraph, documentaryevidence other than medical reportswhich is presented or discovered inconnection with the testimony of awitness at the hearing may be admit-ted into the hearing record, subject tothe objection of any party.

(c) All medical records and reportssubmitted by any party shall be consid-ered by the administrative law judge inaccordance with the quality standardscontained in part 718 of this subchapteras amended from time to time.

(d) Documentary evidence which isobtained by any party during the timea claim is pending before the deputycommissioner, and which is withheldby such party until the claim is for-warded to the Office of AdministrativeLaw Judges shall, notwithstandingparagraph (b) of this section, not be ad-mitted into the hearing record in theabsence of extraordinary cir-cumstances, unless such admission isrequested by any other party to theclaim (see § 725.414(e)).

(e) If, during the course of a hearing,it is determined by the administrativelaw judge that the documentary evi-dence submitted in accordance withthis section is incomplete as to anyissue which must be adjudicated, theadministrative law judge may, in his orher discretion, remand the claim to thedeputy commissioner with instructionsto develop only such additional evi-dence as is required, or allow the par-ties a reasonable time to obtain andsubmit such evidence, before the termi-nation of the hearing.


§ 725.457 Witnesses.(a) Witnesses at the hearing shall tes-

tify under oath or affirmation. The ad-ministrative law judge and the partiesmay question witnesses with respect toany matters relevant and material toany contested issue. Any party who in-tends to present the testimony of anexpert witness at a hearing shall so no-tify all other parties to the claim atleast 10 days before the hearing. Thefailure to give notice of the appearance


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of an expert witness in accordance withthis paragraph, unless notice is waivedby all parties, shall preclude the pres-entation of testimony by such expertwitness.

(b) No person shall be required to ap-pear as a witness in any proceeding be-fore an administrative law judge at aplace more than 100 miles from his orher place of residence, unless the law-ful mileage and witness fee for 1 day’sattendance is paid in advance of thehearing date.

§ 725.458 Deposition; interrogatories.The testimony of any witness or

party may be taken by deposition orinterrogatory according to the rules ofpractice of the Federal district courtfor the judicial district in which thecase is pending (or of the U.S. DistrictCourt for the District of Columbia ifthe case is pending in the District oroutside the United States), except thatat least 30 days prior notice of any dep-osition shall be given to all parties un-less such notice is waived. No post-hearing deposition or interrogatoryshall be permitted unless authorized bythe administrative law judge upon themotion of a party to the claim.

§ 725.459 Witness fees.(a) A witness summoned to hearing

before an administrative law judge, orwhose deposition is taken, shall receivethe same fees and mileage as witnessesin courts of the United States. Exceptas provided in paragraph (c) of this sec-tion, such fees shall be paid by theparty summoning the witness.

(b) No claimant shall be required tobear the financial responsibility forproducing an expert witness for cross-examination if such expert witness, re-gardless of his or her availability to at-tend the hearing, has previously sub-mitted depositions, interrogatories, ormedical reports. Such expert witness, ifhe or she is required to attend thehearing, respond to interrogatories orgive a deposition, shall be summonedand shall have his or her expert witnessfee paid by the party who summonssuch witness.

(c) If a claimant is determined enti-tled to benefits, there may be assessedas costs against a responsible operator,if any, fees and mileage for necessary

witnesses attending the hearing at therequest of the claimant. Both the ne-cessity for the witness and the reason-ableness of the fees of any expert wit-ness shall be approved by the adminis-trative law judge. The amounts award-ed against a responsible operator as at-torney’s fees, or costs, fees and mileagefor witnesses, shall not in any respectaffect or diminish benefits payableunder the Act.

§ 725.459A Oral argument and writtenallegations.

The parties, upon request, may be al-lowed a reasonable time for the presen-tation of oral argument at the hearing.Briefs or other written statements orallegations as to facts or law may befiled by any party with the permissionof the administrative law judge. Copiesof any brief or other written statementshall be filed with the administrativelaw judge and served on all parties bythe submitting party.

§ 725.460 Consolidated hearings.When two or more hearings are to be

held, and the same or substantiallysimilar evidence is relevant and mate-rial to the matters at issue at eachsuch hearing, the Chief AdministrativeLaw Judge may, upon motion by anyparty or on his or her own motion,order that a consolidated hearing beconducted. Where consolidated hear-ings are held, a single record of theproceedings shall be made and the evi-dence introduced in one claim may beconsidered as introduced in the others,and a separate or joint decision shallbe made, as appropriate.

§ 725.461 Waiver of right to appear andpresent evidence.

(a) If all parties waive their right toappear before the administrative lawjudge, it shall not be necessary for theadministrative law judge to give noticeof, or conduct, an oral hearing. A waiv-er of the right to appear shall be madein writing and filed with the Chief Ad-ministrative Law Judge or the admin-istrative law judge assigned to hear thecase. Such waiver may be withdrawnby a party for good cause shown at anytime prior to the mailing of the deci-sion in the claim. Even though all ofthe parties have filed a waiver of the


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right to appear, the administrative lawjudge may, nevertheless, after givingnotice of the time and place, conduct ahearing if he or she believes that thepersonal appearance and testimony ofthe party or parties would assist inascertaining the facts in issue in theclaim. Where a waiver has been filed byall parties, and they do not appear be-fore the administrative law judge per-sonally or by representative, the ad-ministrative law judge shall make arecord of the relevant documentaryevidence submitted in accordance withthis part and any further written stipu-lations of the parties. Such documentsand stipulations shall be considered theevidence of record in the case and thedecision shall be based upon such evi-dence.

(b) Except as provided in § 725.456(a),the unexcused failure of any party toattend a hearing shall constitute awaiver of such party’s right to presentevidence at the hearing, and may re-sult in a dismissal of the claim (see§ 725.465).

§ 725.462 Withdrawal of controversionof issues set for formal hearing; ef-fect.

A party may, on the record, withdrawhis or her controversion of any or allissues set for hearing. If a party with-draws his or her controversion of allissues, the administrative law judgeshall remand the case to the deputycommissioner for the issuance of an ap-propriate order.

§ 725.463 Issues to be resolved at hear-ing; new issues.

(a) Except as otherwise provided inthis section, the hearing shall be con-fined to those contested issues whichhave been identified by the deputycommissioner (see § 725.421) or anyother issue raised in writing before thedeputy commissioner.

(b) An administrative law judge mayconsider a new issue only if such issuewas not reasonably ascertainable bythe parties at the time the claim wasbefore the deputy commissioner. Suchnew issue may be raised upon applica-tion of any party, or upon an adminis-trative law judge’s own motion, withnotice to all parties, at any time aftera claim has been transmitted by the

deputy commissioner to the Office ofAdministrative Law Judges and priorto decision by an administrative lawjudge. If a new issue is raised, the ad-ministrative law judge may, in his orher discretion, either remand the caseto the deputy commissioner with in-structions for further proceedings, hearand resolve the new issue, or refuse toconsider such new issue.

(c) If a new issue is to be consideredby the administrative law judge, aparty may, upon request, be granted anappropriate continuance.

§ 725.464 Record of hearing.

All hearings shall be open to the pub-lic and shall be mechanically or steno-graphically reported. All evidence uponwhich the administrative law judge re-lies for decision shall be contained inthe transcript of testimony, either di-rectly or by appropriate reference. Allmedical reports, exhibits, and anyother pertinent document or record, ei-ther in whole or in material part, in-troduced as evidence, shall be markedfor identification and incorporated intothe record.

§ 725.465 Dismissals for cause.

(a) The administrative law judgemay, at the request of any party, or onhis or her own motion, dismiss a claim:

(1) Upon the failure of the claimantor his or her representative to attend ahearing without good cause;

(2) Upon the failure of the claimantto comply with a lawful order of theadministrative law judge; or

(3) Where there has been a prior finaladjudication of the claim or defense tothe claim under the provisions of thissubchapter and no new evidence is sub-mitted (except as provided in part 727of this subchapter).

(b) A party who is not a proper partyto the claim (see § 725.360) shall be dis-missed by the administrative lawjudge.

(c) In any case where a dismissal of aclaim, defense, or party is sought, theadministrative law judge shall issue anorder to show cause why the dismissalshould not be granted and afford allparties a reasonable time to respond tosuch order. After the time for responsehas expired, the administrative law


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judge shall take such action as is ap-propriate to rule on the dismissal,which may include an order dismissingthe claim, defense or party.

(d) No claim shall be dismissed in acase with respect to which paymentsprior to final adjudication have beenmade to the claimant in accordancewith § 725.522, except upon the motionor written agreement of the Director.

§ 725.466 Order of dismissal.(a) An order dismissing a claim shall

be served on the parties in accordancewith § 725.477. The dismissal of a claimshall have the same effect as a decisionand order disposing of the claim on itsmerits, except as provided in paragraph(b) of this section. Such order shall ad-vise the parties of their right to re-quest review by the Benefits ReviewBoard.

(b) Where the Chief AdministrativeLaw Judge or the presiding administra-tive law judge issues a decision andorder dismissing the claim after a showcause proceeding, the deputy commis-sioner shall terminate any paymentsbeing made to the claimant under§ 725.522, and the order of dismissalshall, if appropriate, order the claim-ant to reimburse the Fund for all bene-fits paid to the claimant.

§ 725.475 Termination of hearings.Hearings are officially terminated

when all the evidence has been re-ceived, witnesses heard, pleadings andbriefs submitted to the administrativelaw judge, and the transcript of theproceedings has been printed and deliv-ered to the administrative law judge.

§ 725.476 Issuance of decision andorder.

Within 20 days after the official ter-mination of the hearing (see § 725.475),the administrative law judge shallissue a decision and order with respectto the claim making an award to theclaimant, rejecting the claim, or tak-ing such other action as is appropriate.

§ 725.477 Form and contents of deci-sion and order.

(a) Orders adjudicating claims forbenefits shall be designated by theterm ‘‘decision and order’’ or ‘‘supple-mental decision and order’’ as appro-

priate, followed by a descriptive phrasedesignating the particular type oforder, such as ‘‘award of benefits,’’ ‘‘re-jection of claim,’’ ‘‘suspension of bene-fits,’’ ‘‘modification of award.’’

(b) A decision and order shall containa statement of the basis of the order,the names of the parties, findings offact, conclusions of law, and an award,rejection or other appropriate para-graph containing the action of the ad-ministrative law judge, his or her sig-nature and the date of issuance. A deci-sion and order shall be based upon therecord made before the administrativelaw judge.

§ 725.478 Filing and service of decisionand order.

On the date of issuance of a decisionand order under § 725.477, the adminis-trative law judge shall serve the deci-sion and order on all parties to theclaim by certified mail. On the samedate, the original record of the claimshall be returned to the DCMWC inWashington, DC, and the decision andorder shall be considered to be filed inthe office of the deputy commissioner.Immediately upon receipt of a decisionand order awarding benefits, the dep-uty commissioner shall compute theamount of benefits due, including anyinterest or penalties, and the amountof reimbursement owed the Fund, ifany, and so notify the parties. Anycomputation made by the deputy com-missioner under this paragraph shallstrictly observe the terms of the awardmade by the administrative judge.

§ 725.479 Finality of decisions and or-ders.

(a) A decision and order shall becomeeffective when filed in the office of thedeputy commissioner (see § 725.478), andunless proceedings for suspension orsetting aside of such order are insti-tuted within 30 days of such filing, theorder shall become final at the expira-tion of the 30th day after such filing(see § 725.481).

(b) Any party may, within 30 daysafter the filing of a decision and orderunder § 725.478, request a reconsider-ation of such decision and order by theadministrative law judge. The proce-dures to be followed in the reconsider-ation of a decision and order shall be


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determined by the administrative lawjudge.

(c) The time for appeal to the Bene-fits Review Board shall be suspendedduring the consideration of a requestfor reconsideration. After the adminis-trative law judge has issued and filed adenial of the request for reconsider-ation, or a revised decision and order inaccordance with this part, any dissatis-fied party shall have 30 days withinwhich to institute proceedings to setaside the new decision and order or af-firmance of the original decision andorder.

§ 725.480 Modification of decisions andorders.

(a) A party who is dissatisfied with adecision and order which has becomefinal in accordance with § 725.479 mayrequest a modification of the decisionand order if the conditions set forth in§ 725.310 are met.

§ 725.481 Right to appeal to the Bene-fits Review Board.

Any party dissatisfied with a deci-sion and order issued by an administra-tive law judge may, before the decisionand order becomes final (see § 725.479),appeal the decision and order to theBenefits Review Board. A notice of ap-peal shall be filed with the Board. Pro-ceedings before the Board shall be con-ducted in accordance with part 802 ofthis title.

§ 725.482 Judicial review.(a) Any person adversely affected or

aggrieved by a final order of the Bene-fits Review Board may obtain a reviewof that order in the U.S. court of ap-peals for the circuit in which the in-jury occurred by filing in such courtwithin 60 days following the issuance ofsuch Board order a written petitionpraying that the order be modified orset aside. The payment of the amountsrequired by an award shall not bestayed pending final decision in anysuch proceeding unless ordered by thecourt. No stay shall be issued unlessthe court finds that irreparable injurywould otherwise ensue to an operatoror carrier.

(b) The Director, Office of Workers’Compensation Program, as designee ofthe Secretary of Labor responsible for

the administration and enforcement ofthe Act, shall be considered the properparty to appear and present argumenton behalf of the Secretary of Labor inall review proceedings conducted pur-suant to this part and the Act, eitheras petitioner or respondent.

§ 725.483 Costs in proceedings broughtwithout reasonable grounds.

If a United States court having juris-diction of proceedings regarding anyclaim or final decision and order, de-termines that the proceedings havebeen instituted or continued beforesuch court without reasonable ground,the costs of such proceedings shall beassessed against the party who has soinstituted or continued such proceed-ings.

Subpart F—Responsible Coal MineOperators

GENERAL PROVISIONS

§ 725.490 Statutory provisions andscope.

(a) One of the major purposes of theblack lung benefits amendments of 1977was to provide a more effective meansof transferring the responsibility forthe payment of benefits from the Fed-eral government to the coal industrywith respect to claims filed under thispart. In furtherance of this goal, aBlack Lung Disability Trust Fund fi-nanced by the coal industry was estab-lished by the Black Lung Benefits Rev-enue Act of 1977. The primary purposeof the Fund is to pay benefits with re-spect to all claims in which the lastcoal mine employment of the miner onwhose account the claim was filed oc-curred before January 1, 1970. With re-spect to most claims in which the min-er’s last coal mine employment oc-curred after January 1, 1970, individualcoal mine operators will be liable forthe payment of benefits. The 1981amendments to the Act relieved indi-vidual coal mine operators from the li-ability for payment of certain specialclaims involving coal mine employ-ment on or after January 1, 1970, wherethe claim was previously denied andsubsequently approved under section435 of the Act. See § 725.496 for a de-tailed description of these special


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claims. Where no such operator existsor the operator determined to be liableis in default in any case, the Fund shallpay the benefits due and seek reim-bursement as is appropriate. See also§ 725.420 for the Fund’s role in the pay-ment of interim benefits in certaincontested cases. In addition, the BlackLung Benefits Reform Act of 1977amended certain provisions affectingthe scope of coverage under the Actand describing the effects of particularcorporate transactions on the liabilityof operators.

(b) The provisions of this subpart de-fine the term ‘‘operator,’’ prescribe themanner in which the identity of an op-erator which may be liable for the pay-ment of benefits—referred to herein asa ‘‘responsible operator’’—will be de-termined, and briefly describe the obli-gations of operators to secure the pay-ment of benefits. (See also part 726 ofthis subchapter.)

[43 FR 36772, Aug. 18,1978, as amended at 48FR 24292, May 31,1983]

§ 725.491 Operator defined.(a) In accordance with section 3(d) of

the Act, an operator for purposes ofthis part is ‘‘any owner, lessee or otherperson who operates, controls, or su-pervises a coal mine or any independ-ent contractor performing services orconstruction at such mine.’’ In accord-ance with sections 402(d) and 422(b) ofthe Act, certain other employers, in-cluding those engaged in coal mineconstruction, maintenance, and trans-portation, shall also be considered tobe operators for purposes of this part.An independent contractor or self-em-ployed miner, construction worker,coal preparation worker, or transpor-tation worker may also be considered acoal mine operator for purpose of thispart. It is Congress’ intent that anyemployer of a miner as defined in§ 725.202(a) shall, to the extent appro-priate, be considered an operator forfor the purposes of this part, and theprovisions of this part shall be con-strued in accordance with this intent.

(b)(1) In determining which operatoror other employer is the employer of aparticular miner, primary consider-ation shall be given to the identity ofthe employer which is directly respon-sible for the supervision, operation and

control of the mine or mines or otherfacilities where the miner was em-ployed. However, Congress has made itclear that such supervision or controlmay be directly or indirectly exercised.Therefore, in appropriate cases where,for example, the individual or businessentity most directly connected withthe mine site is not capable of assum-ing liability for the payment of bene-fits (§ 725.492(d)) or is no longer in busi-ness and such individual or businessentity is a subsidiary of a parent com-pany, a member of a joint venture, apartner in a partnership, or is substan-tially owned or controlled by anotherbusiness entity, such parent entity orother member of a joint venture orpartner or controlling business entitymay be considered an operator for pur-poses of this part, regardless of the na-ture of its business activities.

(2) Where a coal mine is leased, andthe lease empowers the lessor to makedecisions with respect to the terms andconditions under which coal is to be ex-tracted or prepared, such as, but notlimited to, the manner of extraction orpreparation or the amount of coal to beproduced, the lessor may be consideredan operator with respect to employeesof the lessee. An individual land owneror others who lease coal lands or min-eral rights, who have never been coalmine operators or are not in the regu-lar business of leasing coal mines, shallnot be considered a coal mine operatorin accordance with the terms of thissection. Where a lessor previously oper-ated a coal mine, it may be consideredan operator with respect to employeesof any lessee of such mine, particularlywhere the leasing arrangement was ex-ecuted or renewed after the effectivedate of this part and does not requirethe lessee to secure benefits providedby the Act.

(3) In any claim in which the liabilityof a lessor for claims arising out of em-ployment with a lessee is brought intoquestion, the lessee shall be consideredprimarily liable for the claim, and theliability of the lessor may be estab-lished only after it has been deter-mined that the lessee is unable to pro-vide for the payment of benefits to asuccessful claimant. In any case in-volving the liability of a lessor for aclaim arising out of employment with


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a lessee, any determination of lessor li-ability shall be made on the basis ofthe facts present in the case in consid-eration of the terms and intent of theact and this part.

(4) A former coal mine operatorwhich has become a lessor of coalminer shall be liable for approvedclaims arising out of coal mine em-ployment with such lessor during thetime the lessor was a coal mine opera-tor, if such employment terminated onor after January 1, 1970, and the condi-tions for liability contained in § 725.492are met.

(c) (1) An independent contractorwhich performs or performed servicesor engages or engaged in constructionat a mine or preparation or transpor-tation facility may be held liable forthe payment of benefits under this partas a coal mine operator with respect toits employees who work or haveworked in or around a coal mine orcoal preparation or transportation fa-cility in the extraction, preparation, ortransportation of coal or in coal mineconstruction in any period duringwhich such employees were exposed tocoal dust during their employmentwith such contractor. Such contrac-tor’s status as an operator shall not becontingent upon the amount or per-centage of its work or business relatedto activities in or around a mine, norupon the number or percentage of itsemployees engaged in such activities.

(2) (i) Any individual who works orhas worked as a sole proprietor, a part-ner in a partnership, a member of afamily business or who is otherwiseself-employed in or around a coal mineor coal preparation or transportationfacility in the extraction, preparation,or transportation of coal or in coalmine construction during any periodsuch individual was exposed to coaldust may be considered an operatorunder this part.

(ii) A self-employed operator, depend-ing upon the facts of the case, may beconsidered an employee of any otheroperator, person, or business entitywhich substantially controls, super-vises, or is financially responsible forthe activities of the self-employed op-erator.

(iii) For the purposes of this part, alessor of a coal mine which leases such

mine to a self-employed operator shallbe considered the employer of suchself-employed operator and its employ-ees if the lease or agreement is exe-cuted or renewed after the effectivedate of this part and such lease oragreement does not require the lesseeto guarantee the payment of benefitswhich may be required under this part.

§ 725.492 Responsible operator de-fined.

(a) A ‘‘responsible operator’’ is theoperator which is determined liable forthe payment of benefits under this partfor any period after December 31, 1973.In order for an employer to be consid-ered a responsible operator in any case,the following shall be established:

(1) The miner’s disability or deathshall have arisen at least in part out ofemployment in or around a mine orother facility during a period when themine or facility was operated by suchoperator, except as provided in§ 725.493(a)(2);

(2) The operator shall have been anoperator of a coal mine or other facil-ity for any period after June 30, 1973;

(3) The miner’s employment with theoperator or other employer shall haveincluded at least 1 working day(§ 725.493(b)) after December 31, 1969;and

(4) The operator or the employershall be capable of assuming its liabil-ity for the payment of continuing bene-fits under this part, through any of thefollowing means:

(i) By obtaining a policy or contractof insurance under section 423 of theAct and part 726 of this subchapter; or

(ii) By qualifying as a self-insurerunder section 423 of the Act and part726 of this subchapter; or

(iii) By possessing any assets thatmay be available for the payment ofbenefits under this part or through anaction under subpart H of this part.

(b) In the absence of evidence to thecontrary, a showing that a business orcorporate entity exists shall be deemedsufficient evidence of an operator’s ca-pability of assuming liability underthis part.

(c) For the purposes of determiningwhether an employer is or was an oper-ator or other employer covered by theAct which may be found liable for the


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payment of benefits to an employee ofsuch employer under this part, thereshall be a rebuttable presumption thatduring the course of an individual’semployment such individual was regu-larly and continuously exposed to coaldust during the course of employment.The presumption may be rebutted by ashowing that the employee was not ex-posed to coal dust for significant peri-ods during such employment.For purposes of § 725.493(a), a year ofcoal mine employment may be estab-lished by accumulating intermittentperiods of coal mine employment.

§ 725.493 Criteria for identifying a re-sponsible operator.

(a)(1) Subject to the provisions ofparagraphs (a)(2) and (3) of this section,and provided that the conditions of§ 725.492(a)(2) through (a)(4) are met,the operator or other employer withwhich the miner had the most recentperiods of cumulative employment ofnot less than 1 year, as determined inaccordance with paragraph (b) of thissection, shall be the responsible opera-tor.

(2)(i) Except as otherwise provided inthis paragraph, if the operator de-scribed in paragraph (a)(1) of this sec-tion was an operator of a mine ormines or the owner of the assets there-of on or after January 1, 1970, (a ‘‘prioroperator’’) and on or after January 1,1970, transferred such mine or mines orsubstantially all of the assets thereofto another operator (a ‘‘successor oper-ator’’), such successor operator shall beliable for and shall secure the paymentof all benefits which would have beenpayable by the prior operator with re-spect to miners previously employed bysuch prior operator as if the acquisi-tion had not occurred and the prior op-erator had continued to be a coal mineoperator. A lessor of a coal mine maybe considered a prior or successor oper-ator in accordance with this subpart.

(ii) The stated congressional objec-tive supporting section 422(i) of the Actis to prevent a coal operator from cir-cumventing liability under this part byentering into corporate or other busi-ness transactions which make the as-sessment of liability against that oper-ator a financial or legal impossibility.Accordingly, a prior operator under

paragraph (a)(2)(i) of this section,which transfers a mine or mines or sub-stantially all the assets thereof, shallremain primarily liable for the pay-ment of benefits under this part predi-cated on employment with the prioroperator if such prior operator meetsthe conditions of § 725.492(a)(2) and(a)(4). If the conditions in § 725.492(a)(2)and (a)(4) are not met, the successoroperator shall, if appropriate, be liablefor the payment of such benefits.

(iii) Except as is provided in para-graph (a)(2)(ii) of this section, if the op-erator described in paragraph (a)(1) ofthis section is a prior operator which,on or after January 1, 1970, transferredits coal mining business or substan-tially all the assets thereof to a succes-sor operator, or if such business or as-sets was subsequently transferred to asuccesssor of such successor operator,such successor operator which hasmost recently acquired the coal miningoperations in question or substantiallyall of the assets thereof shall bedeemed the responsible operator if itmeets the conditions of § 725.492(a)(2)and (a)(4). If such successor operatorfails to meet such conditions, any prioroperator or any operator in the chainof succession, beginning with the mostrecent operator, which acquired thecoal mining business in question orsubstantially all of the assets thereofon or after January 1, 1970, and whichmeets the conditions of § 725.492(a)(2)and (a)(4), may be determined to be theresponsible operator. Wherever possiblethe employer of the miner shall be con-sidered the responsible operator. How-ever, any successor operator may bedetermined to be the responsible opera-tor with respect to a claim whether ornot the miner on whose total disabilityor death the claim is predicated wasemployed by such successor operatorfor any period of time.

(3) For purposes of paragraph (a)(2) ofthis section, the following shall applyto corporate reorganizations, liquida-tions, and such other transactions asare enumerated in this section, occur-ring on or after January 1, 1970:

(i) If an operator ceases to exist byreason of a reorganization which in-volves a change in identity, form, orplace of business or organization, how-ever effected, the resulting entity shall


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be treated as the operator to whichthis section applies;

(ii) If an operator ceases to exist byreason of a liquidation into a parent orsuccessor corporation, the parent orsuccessor corporation shall be treatedas the operator to which this sectionapplies;

(iii) If an operator ceases to exist byreason of a sale of substantially all itsassets, merger, consolidation, or divi-sion, the successor operator or corpora-tion, or business entity shall be treatedas the operator to which this sectionapplies.

(4) If there is no operator whichmeets the conditions of paragraphs (a)(1) or (2) of this section, the responsibleoperator shall be considered to be theoperator with which the miner had thelatest periods of cumulative employ-ment of not less than 1 year, subject tothe provisions of paragraph (a)(2) ofthis section and provided that the con-ditions of § 725.492(a)(2)–(a)(4) are met.

(5) No determination of responsibilitymade under paragraphs (a)(1)–(b)(4) ofthis section shall be construed to limitthe authority of the Secretary to de-termine that any individual or businessentity is an operator under the Act.

(6) In the event an operator or otheremployer is determined to be a respon-sible operator under the provisions ofparagraphs (a)(1)–(b)(4) of this section,there shall be a rebuttable presumptionthat the miner’s pneumoconiosis arosein whole or in part out of his or heremployment with such operator. Un-less this presumption is rebutted, theresponsible operator shall be liable topay benefits to the claimant on ac-count of the disability or death of theminer in accordance with this part. Aminer’s pneumoconiosis, or disabilitytherefrom, shall be considered to havearisen in whole or in part out of workin or around a mine if such work con-tributed to or aggravated the progres-sion or advancement of a miner’s lossof ability to perform his or her regularcoal mine employment or comparableemployment.

(b) From the evidence presented, theidentity of the operator or other em-ployer with which the miner had themost recent periods of cumulative em-ployment of not less than 1 year and,to the extent the evidence permits, the

beginning and ending dates of such pe-riods, shall be ascertained. For pur-poses of this section, a year of employ-ment means a period of 1 year, or par-tial periods totalling 1 year, duringwhich the miner was regularly em-ployed in or around a coal mine by theoperator or other employer. Regularemployment may be established on thebasis of any evidence presented, includ-ing the testimony of a claimant orother witnesses, and shall not be con-tingent upon a finding of a specificnumber of days of employment withina given period. However, if an operatoror other employer proves that theminer was not employed by it for a pe-riod of at least 125 working days, suchoperator or other employer shall be de-termined to have established that theminer was not regularly employed for acumulative year by such operator oremployer for the purposes of paragraph(a) of this section. A ‘‘working day’’means any day or part of a day forwhich a miner received pay for work asa miner (see § 725.202(a)).

§ 725.494 Insurance coverage.

(a) Any operator which may be liablefor the payment of benefits under thispart shall secure such liability pursu-ant to section 423 of the act by:

(1) Qualifying as a self-insurer or es-tablishing a qualified self-insurancetrust as provided in part 726 of thischapter; or

(2) Insuring and keeping insured thepayment of such benefits with an au-thorized insurance carrier or fund inaccordance with the provisions of part726 of this subchapter.

(b) A coal mine construction ortransportation employer which is notalso a coal mine operator shall not berequired to purchase insurance or qual-ify as a self-insurer in accordance withthis part and part 726 of this sub-chapter. However, such employer shallbe liable for the payment of benefits toany of its employees who are exposedto coal dust in the course of their em-ployment, if eligibility is establishedunder this part or part 727 of this sub-chapter and it is determined that suchemployer is a responsible operatorwithin the meaning of this part. An


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employer other than a coal mine opera-tor which may be liable for the pay-ment of benefits under this part or part727 of this subchapter shall take suchaction as may be appropriate to guar-antee the discharge of such liability. Inconnection with the liability of an em-ployer described in this paragraph, thedeputy commissioner or other adju-dication officer may require a depositof security in accordance with § 725.606.A coal mine construction or transpor-tation employer which also operates acoal mine or coal preparation facilityshall not be excused from its obligationto purchase insurance or self-insure itspotential liability under the act withrespect to all covered employees, as de-scribed in paragraph (a) of this section.Any attempt by a coal mine operatorto alter its corporate structure or reas-sign employees within such structurefor the purpose of avoiding the insur-ance obligations of the act shall beconsidered void for the purpose of de-termining whether such operator is incompliance with the insurance require-ments of the act, or is the employer ofsuch employees.

§ 725.495 Penalty for failure to insure.(a) Any employer required to secure

the payment of benefits under the actand § 725.494 which fails to secure suchbenefits shall be subject to a civil pen-alty to be assessed by the Secretary ofLabor of not more than $1,000 for eachday during which such failure occurs;and in any case where such employer isa corporation, the president, secretary,and treasurer thereof shall be also sev-erally liable for such civil penalty asherein provided for the failure of suchcorporation to secure the payment ofbenefits; and such president, secretary,and treasurer shall be severally person-ally liable, jointly with such corpora-tion, for any payments or other benefitwhich may accrue under the act in re-spect to any injury which may occur toany employee of such corporationwhile it shall so fail to secure the pay-ment of benefits as required by the act.

(b) If the Director determines that anoperator has not fully discharged itsinsurance obligations imposed by theact, the Director shall notify the oper-ator of its violation, and if correctiveaction is not taken within a reasonable

time specified by the Director, the Di-rector shall forward the case to theChief Administrative Law Judge for ap-propriate proceedings. The administra-tive law judge assigned the case shallschedule and conduct a hearing withrespect to the liability of the operatorfor the penalty described in this sec-tion. A penalty hearing conducted inaccordance with this paragraph shallbe subject to the provisions of 5 U.S.C.554 and proceedings shall be determinedin the discretion of the administrativelaw judge.

(c) An action may be commencedunder this section at any time after in-formation supporting such action be-comes known to the Director.

(d) In determining the amount of anypenalty assessed under this section, theadministrative law judge shall considerthe circumstances of the failure of anoperator to comply with paragraph (a)of this section and shall, in the absenceof mitigating circumstances, assess themaximum penalty allowed.

(e) Any penalty owed under this sec-tion shall be paid to the fund and maybe enforced by the Secretary on behalfof the fund as appropriate.

(f) An appeal from a decision issuedby an administrative law judge underthis section shall be taken in accord-ance with the provisions of the Admin-istrative Procedure Act, 5 U.S.C. 553 etseq. The Board shall not have jurisdic-tion to consider an appeal of a case ad-judicated under this part.

§ 725.496 Special claims transferred tothe Trust Fund.

(a) The 1981 amendments to the Actamended section 422 of the Act andtransferred liability for payment ofcertain special claims from operatorsand carriers to the Trust Fund. Theseprovisions apply to claims which weredenied before March 1, 1978, and whichhave been or will be approved in ac-cordance with section 435 of the Act.

(b) Section 402(i) of the Act definesthree classes of denied claims subjectto the transfer provisions:

(1) Claims filed with and denied bythe Social Security Administration be-fore March 1, 1978:


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20 CFR Ch. VI (4–1–98 Edition)§ 725.497

(2) Claims filed with the Departmentof Labor in which the claimant was no-tified by the Department of an admin-istrative or informal denial beforeMarch 1, 1977, and in which the claim-ant did not within one year of such no-tification 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 recon-

sideration of the denial on the groundof a change in conditions or because ofa mistake in a determination of fact;

(3) Claims filed with the Departmentof Labor and denied under the law ineffect prior to the enactment of theBlack Lung Benefits Reform Act of1977, that is, before March 1, 1978, fol-lowing a formal hearing before an ad-ministrative law judge or administra-tive review before the Benefits ReviewBoard or review before a United StatesCourt of Appeals.

(c) Where more than one claim wasfiled with the Social Security Adminis-tration and/or the Department of Laborprior to March 1, 1978, by or on behalfof a miner or a surviving dependent ofa miner, unless such claims were re-quired to be merged by the agency’sregulations, the procedural history ofeach such claim must be consideredseparately to determine whether theclaim is subject to the transfer of li-ability provisions.

(d) For a claim filed with and deniedby the Social Security Administrationprior to March 1, 1978, to come withinthe transfer provisions, such claimmust have been or must be approvedunder the provisions of section 435 ofthe Act. No claim filed with and deniedby the Social Security Administrationis subject to the transfer of liabilityprovisions unless a request was madeby or on behalf of the claimant for re-view of such denied claim under section435. Such review must have been re-quested by the filing of a valid electioncard or other equivalent documentwith the Social Security Administra-tion in accordance with section 435(a)and its implementing regulations at 20CFR 410.700–410.707.

(e) Where a claim filed with the De-partment of Labor prior to March 1,1977, was subjected to repeated admin-

istrative or informal denials, the lastsuch denial issued during the pendencyof the claim determines whether theclaim is subject to the transfer of li-ability provisions.

(f) Where a miner’s claim comeswithin the transfer of liability provi-sions of the 1981 amendments the TrustFund is also liable for the payment ofany benefits to which the miner’s de-pendent survivors are entitled after theminer’s death. However, if the sur-vivor’s entitlement was established ona separate claim not subject to thetransfer of liability provisions prior toapproval of the miner’s claim undersection 435, the party responsible forthe payment of such survivors’ benefitsshall not be relieved of that respon-sibility because the miner’s claim wasultimately approved and found subjectto the transfer of liability provisions.

[48 FR 24292, May 31, 1983]

§ 725.497 Procedures in special claimstransferred to the Trust Fund.

(a) General. It is the purpose of thissection to define procedures to expe-dite the handling and disposition ofclaims affected by the benefit liabilitytransfer provisions of section 205 of theBlack Lung Benefits Amendments of1981.

(b) Action by the Department. TheOWCP shall, in accordance with thecriteria contained in § 725.496, revieweach claim which is or may be affectedby the provisions of section 205 of theBlack Lung Benefits Amendments of1981. Any party to a claim, adjudica-tion officer, or adjudicative body mayrequest that such a review be con-ducted and that the record be supple-mented with any additional docu-mentation necessary for an informedconsideration of the transferability ofthe claim. Where the issue of the trans-ferability of the claim can not be re-solved by agreement of the parties andthe evidence of record is not sufficientfor a resolution of the issue, the hear-ing record may be reopened or the caseremanded for the development of theadditional evidence concerning the pro-cedural history of the claim necessaryto such resolution. Such determina-tions shall be made on an expeditedbasis.


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(c) Dismissal of operators. If it is deter-mined that a coal mine operator or in-surance carrier which previously par-ticipated in the consideration or adju-dication of any claim, may no longerbe found liable for the payment of ben-efits to the claimant by reason of sec-tion 205 of the Black Lung BenefitsAmendments of 1981, such operator orcarrier shall be promptly dismissed asa party to the claim. The dismissal ofan operator or carrier shall be con-cluded at the earliest possible time andin no event shall an operator or carrierparticipate as a necessary party in anyclaim for which only the Trust Fundmay be liable.

(d) Procedure following dismissal of anoperator. After it has been determinedthat an operator or carrier must be dis-missed as a party in any claim in ac-cordance with this section, the Direc-tor shall take such action as is author-ized by the Act to bring about theproper and expeditious resolution ofthe claim in light of all relevant medi-cal and other evidence. Action to betaken in this regard by the Directormay include, but is not limited to, theassignment of the claim to the BlackLung Disability Trust Fund for thepayment of benefits, the reimburse-ment of benefits previously paid by anoperator or carrier if appropriate, thedefense of the claim on behalf of theTrust Fund, or proceedings authorizedby § 725.310.

(e) Any claimant whose claim hasbeen subsequently denied in a modi-fication proceeding will be entitled toexpedited review of the modificationdecision. Where a formal hearing waspreviously held, the claimant maywaive his right to a further hearingand ask that a decision be made on therecord of the prior hearing, as supple-mented by any additional documentaryevidence which the parties wish to in-troduce and briefs of the parties, if de-sired. In any case in which the claim-ant waives his right to a second hear-ing, a decision and order must beissued within 30 days of the date uponwhich the parties agree the record hasbeen completed.

[48 FR 24293, May 31, 1983]

Subpart G—Payment of Benefits§ 725.501 Payment provisions gen-

erally.The provisions of this subpart govern

the payment of benefits to claimantswhose claims are approved for paymentunder section 415 and part C of title IVof the act or approved after reviewunder section 435 of the act and part 727of this subchapter.

§ 725.502 Manner of payment, paymentperiods.

(a) Benefits under the act shall bepaid periodically, promptly, and di-rectly to the person entitled thereto orhis or her representative payee (see§ 725.510).

(b) Benefits are payable for monthlyperiods and shall be paid to an eligibleclaimant beginning with the monthduring which eligibility begins andshall terminate with the month beforethe month during which eligibility ter-minates. If a claimant dies in the firstmonth during which all requirmentsfor eligibility are met, benefits shall bepaid for that month.

(c) Except as is otherwise provided inthis part, all past due benefits shall bepaid during the month in which thefirst benefit payment is made.

§ 725.503 Date from which benefits arepayable.

(a) In accordance with the provisionsof section 6(a) of the Longshoremen’sAct as incorporated by section 422(a) ofthe act, and except as provided in§ 725.503A, the provisions of this sectionshall be applicable in determining thedate from which benefits are payable toan eligible claimant.

(b) In the case of a miner who is to-tally disabled due to pneumoconiosis,benefits are payable to such miner be-ginning with the month of onset oftotal disability. Where the evidencedoes not establish the month of onset,benefits shall be payable to such minerbeginning with the month duringwhich the claim was filed, or themonth during which the claimantelected review under part 727 of thissubchapter.

(c) Except as is provided in part 727 ofthis subchapter, in the case of a sur-vivor of a miner who died due to or


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20 CFR Ch. VI (4–1–98 Edition)§ 725.503A

while totally disabled by pneumo-coniosis, benefits shall be payable be-ginning with the month of the miner’sdeath, or January 1, 1974, whichever islater.

(d) No benefits shall be payable withrespect to a claim filed between July 1and December 31, 1973 (a section 415claim), for any period of eligibilityprior to July 1, 1973 (or January 1, 1974if the claim is approved under part 727of this subpart), nor shall any benefitsbe payable with respect to such claimpursuant to the provisions of section415 of part B of title IV of the act forany period of eligibility after Decem-ber 31, 1973. Where in the case of a sec-tion 415 claim, eligibility continues be-yond December 31, 1973, benefits for pe-riods of eligibility occurring after suchdate shall be payable under part C oftitle IV of the act.

(e) No benefits shall be payable withrespect to a claim filed after December31, 1973 (a part C claim), for any periodof eligibility occurring before January1, 1974.

(f) Each decision and order awardingbenefits shall indicate the month fromwhich benefits are payable to the eligi-ble claimant.

§ 725.503A Payments to a claimant em-ployed as a miner.

(a) In the case of a claimant who isemployed as a miner (see § 725.202(a)) atthe time of a final determination ofsuch miner’s eligibility for benefits, nobenefits shall be payable unless:

(1) The miner’s eligibility is estab-lished under section 411(c)(3) of the act;or (2) the miner terminates his or hercoal mine employment within 1 yearfrom the date of the final determina-tion of the claim.

(b) If the eligibility of a workingminer is established under section411(c)(3) of the act, benefits shall bepayable as is otherwise provided in thispart. If eligibility cannot be estab-lished under section 411(c)(3), and theminer continues to be employed as aminer in any capacity for a period ofless than 1 year after a final deter-mination of the claim, benefits shall bepayable beginning with the month dur-ing which the miner ends his or hercoal mine employment. If the miner’semployment continues for more than 1

year after a final determination of eli-gibility, such determination shall beconsidered a denial of benefits on thebasis of the miner’s continued employ-ment, and the miner may seek benefitsonly as provided in § 725.310, if applica-ble, or by filing a new claim under thispart. The provisions of subparts D andE of this part shall be applicable toclaims considered under this section asis appropriate.

(c) In any case where the miner re-turns to coal mine or comparable andgainful work, the payments to suchminer shall be suspended and no bene-fits shall be payable (except as pro-vided in section 411(c)(3) of the act) forthe period during which the miner con-tinues to work. If the miner again ter-minates employment, the deputy com-missioner may require the miner tosubmit to further medical examinationbefore authorizing the payment of ben-efits.

§ 725.504 Payees.

Benefits may be paid, as appropriate,to a beneficiary, to a qualified depend-ent, or to a representative authorizedunder this subpart to receive paymentson behalf of such beneficiary or de-pendent.

§ 725.505 Payment on behalf of an-other; ‘‘legal guardian’’ defined.

Benefits are paid only to the bene-ficiary, his or her representative payee(see § 725.510) or his or her legal guard-ian. As used in this section, ‘‘legalguardian’’ means an individual who hasbeen appointed by a court of competentjurisdiction or otherwise appointedpursuant to law to assume control ofand responsibility for the care of thebeneficiary, the management of his orher estate, or both.

§ 725.506 Guardian for minor or in-competent.

An adjudication officer may requirethat a legal guardian or representativebe appointed to receive benefit pay-ments payable to any person who ismentally incompetent or a minor andto exercise the powers granted to, or toperform the duties otherwise requiredof such person under the act.


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§ 725.510 Representative payee.(a) If the deputy commissioner deter-

mines that the best interests of a bene-ficiary are served thereby, the deputycommissioner may certify the paymentof such beneficiary’s benefits to a rep-resentative payee.

(b) Before any amount shall be cer-tified for payment to any representa-tive payee for or on behalf of a bene-ficiary, such representative payee shallsubmit to the deputy commissionersuch evidence as may be required of hisor her relationship to, or his or her re-sponsibility for the care of, the bene-ficiary on whose behalf payment is tobe made, or of his or her authority toreceive such a payment. The deputycommissioner may, at any time there-after, require evidence of the continuedexistence of such relationship, respon-sibility, or authority. If a person re-questing representative payee statusfails to submit the required evidencewithin a reasonable period of timeafter it is requested, no further pay-ments shall be certified to him or heron behalf of the beneficiary unless therequired evidence is thereafter submit-ted.

(c) All benefit payments made to arepresentative payee shall be availableonly for the use and benefit of the ben-eficiary, as defined in § 725.511.

§ 725.511 Use and benefit defined.(a) Payments certified to a represent-

ative payee shall be considered as hav-ing been applied for the use and benefitof the beneficiary when they are usedfor the beneficiary’s current mainte-nance—i.e., to replace current incomelost because of the disability of thebeneficiary. Where a beneficiary is re-ceiving care in an institution, currentmaintenance shall include the cus-tomary charges made by the institu-tion and charges made for the currentand foreseeable needs of the bene-ficiary which are not met by the insti-tution.

(b) Payments certified to a represent-ative payee which are not needed forthe current maintenance of the bene-ficiary, except as they may be usedunder § 725.512, shall be conserved or in-vested on the beneficiary’s behalf. Pre-ferred investments are U.S. savingsbonds which shall be purchased in ac-

cordance with applicable regulations ofthe U.S. Treasury Department (31 CFRpart 315). Surplus funds may also be in-vested in accordance with the rules ap-plicable to investment of trust estatesby trustees. For example, surplus fundsmay be deposited in an interest or divi-dend bearing account in a bank ortrust company or in a savings and loanassociation if the account is either fed-erally insured or is otherwise insuredin accordance with State law require-ments. Surplus funds deposited in aninterest or dividend bearing account ina bank or trust company or in a sav-ings and loan association must be in aform of account which clearly showsthat the representative payee has onlya fiduciary, and not a personal, inter-est in the funds. The preferred forms ofsuch accounts are as follows:

Name of beneficiary —————————————by (Name of representative payee) represent-ative payee,or (Name of beneficiary)by (Name of representative payee) trustee.

U.S. savings bonds purchased with surplusfunds by a representative payee for an inca-pacitated adult beneficiary should be reg-istered as follows: (Name of beneficiary) (So-cial Security No.), for whom (Name of payee)is representative payee for black lung bene-fits.

§ 725.512 Support of legally dependentspouse, child, or parent.

If current maintenance needs of abeneficiary are being reasonably met, arelative or other person to whom pay-ments are certified as representativepayee on behalf of the beneficiary mayuse part of the payments so certifiedfor the support of the legally dependentspouse, a legally dependent child, or alegally dependent parent of the bene-ficiary.

§ 725.513 Accountability; transfer.(a) The deputy commissioner may re-

quire a representative payee to submitperiodic reports including a full ac-counting of the use of all benefit pay-ments certified to a representativepayee. If a requested report or account-ing is not submitted within the timeallowed, the deputy commissioner shallterminate the certification of the rep-resentative payee and thereafter pay-ments shall be made directly to thebeneficiary. A certification which is


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20 CFR Ch. VI (4–1–98 Edition)§ 725.514

terminated under this section may bereinstated for good cause, providedthat all required reports are suppliedto the deputy commissioner.

(b) A representative payee who hasconserved or invested funds from pay-ments under this part shall, upon thedirection of the deputy commissioner,transfer any such funds (including in-terest) to a successor payee appointedby the deputy commissioner or, at theoption of the deputy commissioner,shall transfer such funds to the Officefor recertification to a successor payeeor the beneficiary.

§ 725.514 Certification to dependent ofaugmentation portion of benefit.

(a) If the basic benefit of a miner orof a surviving spouse is augmented be-cause of one or more dependents, and itappears to the deputy commissionerthat the best interests of such depend-ent would be served thereby, or thatthe augmented benefit is not beingused for the use and benefit (as definedin this subpart) of the augmentee, thedeputy commissioner may certify pay-ment of the amount of such augmenta-tion (to the extent attributable to suchdependent) to such dependent directly,or to a legal guardian or a representa-tive payee for the use and benefit ofsuch dependent.

(b) Any request to the deputy com-missioner to certify separate paymentof the amount of an augmentation inaccordance with paragraph (a) of thissection shall be in writing on suchform and in accordance with such in-structions as are prescribed by the Of-fice.

(c) The deputy commissioner shallspecify the terms and conditions of anycertification authorized under this sec-tion and may terminate any such cer-tification where appropriate.

(d) Any payment made under thissection, if otherwise valid under theAct, is a complete settlement and sat-isfaction of all claims, rights, and in-terests in and to such payment, exceptthat such payment shall not be con-strued to abridge the rights of anyparty to recoup any overpaymentmade.

§ 725.515 Assignment and exemptionfrom claims of creditors.

Except as provided by the act andthis part, no assignment, release, orcommutation of benefits due or pay-able under this part shall be valid, andall benefits shall be exempt fromclaims of creditors and from levy, exe-cution, and attachment or other rem-edy or recovery or collection of a debt,which exemption may not be waived.

BENEFIT RATES

§ 725.520 Computation of benefits.

(a) Basic rate. The amount of benefitspayable to a beneficiary for a month isdetermined, in the first instance, bycomputing the ‘‘basic rate.’’ The basicrate is equal to 371⁄2 percent of themonthly pay rate for Federal employ-ees in GS–2, step 1. That rate for amonth is determined by:

(1) Ascertaining the lowest annualrate of pay (step 1) for Grade GS–2 ofthe General Schedule applicable tosuch month (see 5 U.S.C. 5332);

(2) Ascertaining the monthly ratethereof by dividing the amount deter-mined in paragraph (a)(1) of this sec-tion by 12; and

(3) Ascertaining the basic rate underthe Act by multiplying the amount de-termined in paragraph (a)(2) of this sec-tion by 0.375 (that is, by 371⁄2 percent).

(b) Basic benefit. When a miner or sur-viving spouse is entitled to benefits fora month for which he or she has no de-pendents who qualify under this partand when a surviving child of a mineror spouse, or a parent, brother, or sis-ter of a miner, is entitled to benefitsfor a month for which he or she is theonly beneficiary entitled to benefits,the amount of benefits to which suchbeneficiary is entitled is equal to thebasic rate as computed in accordancewith this section (raised, if not a mul-tiple of 10 cents, to the next high mul-tiple of 10 cents). This amount is re-ferred to as the ‘‘basic benefit.’’

(c) Augmented benefit. (1) When aminer or surviving spouse is entitled tobenefits for a month for which he orshe has one or more dependents whoqualify under this part, the amount ofbenefits to which such miner or surviv-ing spouse is entitled is increased. This


815


increase is referred to as an ‘‘aug-mentation.’’

(2) The benefits of a miner or surviv-ing spouse are augmented to take ac-count of a particular dependent begin-ning with the first month in whichsuch dependent satisfies the conditionsset forth in this part, and continues tobe augmented through the month be-fore the month in which such depend-ent ceases to satisfy the conditions setforth in this part, except in the case ofa child who qualifies as a dependent be-cause he or she is a student. In the lat-ter case, such benefits continue to beaugmented through the month beforethe first month during no part of whichhe or she qualifies as a student.

(3) The basic rate is augmented by 50percent for one such dependent, 75 per-cent for two such dependents, and 100percent for three or more such depend-ents.

(d) Survivor benefits. As used in thissection, ‘‘survivor’’ means a survivingchild of a miner or surviving spouse, ora surviving parent, brother, or sister ofa miner, who establishes entitlementto benefits under this part.

(e) Computation and rounding. (1) Anycomputation prescribed by this sectionis made to the third decimal place.

(2) Monthly benefits are payable inmultiples of 10 cents. Therefore, amonthly payment of amounts derivedunder paragraph (c)(3) of this sectionwhich is not a multiple of 10 cents isincreased to the next higher multipleof 10 cents.

(3) Since a fraction of a cent is not amultiple of 10 cents, such an amountwhich contains a fraction in the thirddecimal place is raised to the nexthigher multiple of 10 cents.

(f) Eligibility based on the coal mine em-ployment of more than one miner. Wherean individual, for any month, is enti-tled (and/or qualifies as a dependent forpurposes of augmentation of benefits)based on the disability or death due topneumoconiosis arising out of the coalmine employment of more than oneminer, the benefit payable to or on be-half of such individual shall be at arate equal to the highest rate of bene-fits for which entitlement is estab-lished by reason of eligibility as a ben-eficiary, or by reason of his or her

qualification as a dependent for aug-mentation of benefit purposes.


§ 725.521 Commutation of payments;lump sum awards.

(a) Whenever the deputy commis-sioner determines that it is in the in-terest of justice, the liability for bene-fits or any part thereof as determinedby a final adjudication, may, with theapproval of the Director, be dischargedby the payment of a lump sum equal tothe present value of future benefit pay-ments commuted, computed at 4 per-cent true discount compounded annu-ally.

(b) Applications for commutation offuture payments of benefits shall bemade to the deputy commissioner inthe manner prescribed by the deputycommissioner. If the deputy commis-sioner determines that an award of alump sum payment of such benefitswould be in the interest of justice, heor she shall refer such application, to-gether with the reasons in support ofsuch determination, to the Director forconsideration.

(c) The Director shall, in his or herdiscretion, grant or deny the applica-tion for commutation of payments.Such decision may be appealed to theBenefits Review Board.

(d) The computation of allcommutations of such benefits shall bemade by the OWCP. For this purposethe file shall contain the date of birthof the person on whose behalf com-mutation is sought, as well as the dateupon which such commutation shall beeffective.

(e) For purposes of determining theamount of any lump sum award, theprobability of the death of the disabledminer and/or other persons entitled tobenefits before the expiration of the pe-riod during which he or she is entitledto benefits, shall be determined in ac-cordance with the most current UnitedStates Life Tables, as developed by theDepartment of Health, Education, andWelfare, and the probability of the re-marriage of a surviving spouse shall bedetermined in accordance with the re-marriage tables of the Dutch Royal In-surance Institution. The probability of


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20 CFR Ch. VI (4–1–98 Edition)§ 725.522

the happening of any other contin-gency affecting the amount or durationof the compensation shall be dis-regarded.

(f) In the event that an operator orcarrier is adjudicated liable for thepayment of benefits, such operator orcarrier shall be notified of and given anopportunity to participate in the pro-ceedings to determine whether a lumpsum award shall be made. Such opera-tor or carrier shall, in the event a lumpsum award is made, tender full andprompt payment of such award to theclaimant as though such award were afinal payment of monthly benefits. Ex-cept as provided in paragraph (g) ofthis section, such lump sum awardshall forever discharge such operatoror carrier from its responsibility tomake monthly benefit payments underthe act to the person who has re-quested such lump-sum award. In theevent that an operator or carrier is ad-judicated liable for the payment ofbenefits, such operator or carrier shallnot be liable for any portion of a com-muted or lump sum award predicatedupon benefits due any claimant priorto January 1, 1974.

(g) In the event a lump-sum award isapproved under this section, suchaward shall not operate to discharge anoperator carrier, or the Fund from anyresponsibility imposed by the act forthe payment of medical benefits to aneligible miner.

§ 725.522 Payments prior to final adju-dication.

(a) Unless a stay of payments is or-dered by the Board or appropriatecourt under section 21 of the LHWCA,the payment of benefits to a claimantwho has been determined eligibletherefor by a deputy commissioner, ad-ministrative law judge, the Board, or acourt shall commence within no morethan 30 days following an initial deter-mination of eligibility by such deputycommissioner, or the filing of an awardof benefits by such administrative lawjudge, Board, or court, notwithstand-ing the pendency of further proceedingsbefore an admininstrative law judge oran appeal to the Board or court.

(b) If an operator or carrier has beeninitially determined liable for the pay-ment of benefits to an eligible claim-

ant by the deputy commissioner (see§ 725.420), or ordered to pay benefits byan administrative law judge, theBoard, or an appropriate court, andsuch operator or carrier fails or refusesto commence the payment of benefits(including all past due benefits andmedical expenses) within the 30-day pe-riod specified in paragraph (a) of thissection, the fund shall commence thepayments due and owing and shall con-tinue such payments as appropriate. Inthe event that the fund undertakes thepayment of benefits on behalf of an op-erator or carrier, the provisions of§§ 725.601–725.608 shall be applicable tosuch operator or carrier.

(c) If benefit payments are com-menced prior to the final adjudicationof the claim and it is later determinedby an administrative law judge, theBoard, or court that the claimant wasineligible to receive such payments,such payments shall be consideredoverpayments pursuant to § 725.540 ofthis subpart which may be recovered inaccordance with the provisions of thissubpart.

SPECIAL PROVISIONS FOR OPERATORPAYMENTS

§ 725.530 Operator payments; gen-erally.

(a) An operator or carrier which hasbeen determined liable for the paymentof benefits to a claimant by the deputycommissioner, or ordered to pay suchbenefits by an administrative lawjudge, the Board, or a court, or an op-erator who has agreed that it is liablefor the payment of benefits to a claim-ant, shall commence the payment ofbenefits (including past due benefits,medical costs, penalties and interest, ifany) within 30 days of such determina-tion, order, or agreement. Thereafter,monthly benefit payments shall bemade for the duration of the claimant’seligibility. Arrangements for the pay-ment of medical costs shall be made bysuch operator or carrier in accordancewith the provisions of subpart I of thispart.

(b) Benefit payments made by an op-erator or carrier shall be made directlyto the person entitled thereto or a rep-resentative payee if authorized by thedeputy commissioner. The payment of


817


a claimant’s attorney’s fee, if any isawarded, shall be made directly to suchattorney. Reimbursement of the fund,including interest, shall be paid di-rectly to the Secretary on behalf of thefund.

§ 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 theduly appointed agent for the estate of adeceased beneficiary, shall execute re-ceipts for benefits paid by any operatorwhich shall be produced by such opera-tor for inspection whenever the deputycommissioner requires. A canceledcheck shall be considered adequate re-ceipt of payment for purposes of thissection. No operator or carrier shall berequired to retain receipts for pay-ments made for more than 5 years afterthe date on which such receipt was exe-cuted.


(Pub. L. No. 96–511, 94 Stat. 2812 (44 U.S.C.3501 et seq.))

[43 FR 36772, Aug. 18, 1978, as amended at 47FR 145, Jan. 5, 1982]

§ 725.532 Suspension, reduction, or ter-mination of payments.

(a) No suspension, reduction, or ter-mination in the payment of benefits ispermitted unless authorized by thedeputy commissioner, administrativelaw judge, Board, or court. No suspen-sion, reduction, or termination shall beauthorized except upon the occurrenceof an event which terminates a claim-ant’s eligibility for benefits (see sub-part B of this part) or as is otherwiseprovided in subpart C of this part,§§ 725.306 and 725.310, or this subpart seealso §§ 725.533–725.546).

(b) Any unauthorized suspension inthe payment of benefits by an operatoror carrier shall be treated as providedin subpart H.

(c) Unless suspension, reduction, ortermination of benefits payments is re-quired by an administrative law judge,the Benefits Review Board or a court,the deputy commissioner, after receiv-ing notification of the occurrence of anevent that would require the suspen-sion, reduction, or termination of bene-

fits, shall follow the procedures for thedetermination of claims set forth insubparts D and E.


INCREASES AND REDUCTIONS OFBENEFITS

§ 725.533 Modification of benefitsamounts; general.

(a) Under certain circumstances theamount of monthly benefits as com-puted in § 725.520 or lump-sum award(§ 725.521) shall be modified to deter-mine the amount actually to be paid toa beneficiary. With respect to any ben-efits payable for all periods of eligi-bility after January 1, 1974, a reductionof the amount of benefits payable shallbe required on account of:

(1) Any compensation or benefits re-ceived under any State workers’ com-pensation law because of death or par-tial or total disability due to pneumo-coniosis; or

(2) Any compensation or benefits re-ceived under or pursuant to any Fed-eral law including part B of title IV ofthe act because of death or partial ortotal disability due to pneumoconiosis;or

(3) In the case of benefits to a parent,brother, or sister as a result of a claimfiled at any time or benefits payable ona miner’s claim which was filed on orafter January 1, 1982, the excess earn-ings from wages and from net earningsfrom self-employment (see § 410.530 ofthis title) of such parent, brother, sis-ter, or miner, respectively; or

(4) The fact that a claim for benefitsfrom an additional beneficiary is filed,or that such claim is effective for apayment during the month of filing, ora dependent qualifies under this partfor an augmentation portion of a bene-fit of a miner or widow for a period inwhich another dependent has pre-viously qualified for an augmentation.

(b) With respect to periods of eligi-bility occurring after June 30, 1973, butbefore January 1, 1974, benefits shall bereduced in months of eligibility occur-ring during such period only:

(1) By an amount equal to any pay-ment received under the workers’ com-pensation, unemployment compensa-tion, or disability insurance laws of


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20 CFR Ch. VI (4–1–98 Edition)§ 725.534

any State on account of the disabilityor death of the miner due to pneumo-coniosis; and

(2) On account of excess earningsunder section 203 (b) through (l) of theSocial Security Act; and

(3) For failure to report earningsfrom work in employment and self-em-ployment within the prescribed periodof time; and

(4) By reason of the fact that a claimfor benefits from an additional bene-ficiary is filed, or that such a claim iseffective for a month prior to themonth of filing, or a dependent quali-fies under this part or this chapter foran augmentation portion of a benefit ofa miner or surviving spouse for amonth for which another dependenthas previously qualified for an aug-mentation.

(c) With respect to claims filed be-tween July 1 and December 31, 1973, andpaid for periods of eligibility occurringduring such period, there shall be noretroactive adjustment of benefits paidin light of the amendments enacted bythe Black Lung Benefits Reform Act of1977 insofar as such amendments affectevents which cause a reduction in bene-fits.

(d) An adjustment in a beneficiary’smonthly benefit may be required be-cause an overpayment or under-payment has been made to such bene-ficiary (see §§ 725.540–725.546).

(e) A suspension of a beneficiary’smonthly benefits may be required whenthe Office has information indicatingthat reductions on account of excessearnings may reasonably be expected.

(f) Monthly benefit rates are payablein multiples of 10 cents. Any monthlybenefit rate which, after the applicablecomputations, augmentations, and re-ductions is not a multiple of 10 cents,is increased to the next higher multipleof 10 cents. Since a fraction of a cent isnot a multiple of 10 cents, a benefitrate which contains such a fraction inthe third decimal is raised to the nexthigher multiple of 10 cents.

(g) Any individual entitled to a bene-fit, who is aware of any circumstanceswhich could affect entitlement to bene-fits, eligibility for payment, or theamount of benefits, or result in the ter-mination, suspension, or reduction ofbenefits, shall promptly report these

circumstances to the Office. The Officemay at any time require an individualreceiving, or claiming entitlement to,benefits, either on his or her own be-half or on behalf of another, to submita written statement giving pertinentinformation bearing upon the issue ofwhether or not an event has occurredwhich would cause such benefit to beterminated, or which would subjectsuch benefit to reductions or suspen-sion under the provisions of the Act.The failure of an individual to submitany such report or statement, properlyexecuted, to the Office shall subjectsuch benefit to reductions, suspension,or termination as the case may be.


EDITORIAL NOTE: Section 725.533(a)(3) re-vised at 48 FR 24293, May 31, 1983, containsinformation collection requirements whichare not effective until approved by the Officeof Management and Budget. Notice of ap-proval will be published in the Federal Reg-ister.

§ 725.534 Reduction of State benefits.

No benefits under section 415 of partB of title IV of the Act shall be payableto the residents of a State which, afterDecember 31, 1969, reduces the benefitspayable to persons eligible to receivebenefits under section 415 of the Actunder State laws applicable to its gen-eral work force with regard to workers’compensation (including compensationfor occupational disease), unemploy-ment compensation, or disability in-surance benefits which are funded inwhole or in part out of employer con-tributions.

§ 725.535 Reduction; receipt of State orFederal benefit.

(a) As used in this section the term‘‘State or Federal benefit’’ means apayment to an individual on account oftotal or partial disability or death dueto pneumoconiosis only under State orFederal laws relating to workers’ com-pensation. With respect to a claim forwhich benefits are payable for anymonth between July 1 and December31, 1973, ‘‘State benefit’’ means a pay-ment to a beneficiary made on accountof disability or death due to pneumo-coniosis under State laws relating to


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workers’ compensation (including com-pensation for occupational disease),unemployment compensation, or dis-ability insurance.

(b) Benefit payments to a beneficiaryfor any month are reduced (but notbelow zero) by an amount equal to anypayments of State or Federal benefitsreceived by such beneficiary for suchmonth.

(c) Where a State or Federal benefitis paid periodically but not monthly, orin a lump sum as a commutation of ora substitution for periodic benefits, thereduction under this section is made atsuch time or times and in suchamounts as the Office determines willapproximate as nearly as practicablethe reduction required under paragraph(b) of this section. In making such a de-termination, a weekly State or Federalbenefit is multiplied by 41⁄3 and a bi-weekly benefit is multiplied by 21⁄6 toascertain the monthly equivalent forreduction purposes.

(d) Amounts paid or incurred or to beincurred by the individual for medical,legal, or related expenses in connectionwith this claim for State or Federalbenefits (defined in paragraph (a) ofthis section) are excluded in computingthe reduction under paragraph (b) ofthis section, to the extent that theyare consistent with State or FederalLaw. Such medical, legal, or relatedexpenses may be evidenced by theState or Federal benefit awards, com-promise agreement, or court order inthe State or Federal benefit proceed-ings, or by such other evidence as theOffice may require. Such other evi-dence may consist of:

(1) A detailed statement by the indi-vidual’s attorney, physician, or the em-ployer’s insurance carrier; or:

(2) Bills, receipts, or canceled checks;or

(3) Other evidence indicating theamount of such expenses; or

(4) Any combination of the foregoingevidence from which the amount ofsuch expenses may be determinable.Such expenses shall not be excludedunless established by evidence as re-quired by the Office.

§ 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 whoseclaim was filed on or after January 1,1982, benefit payments are reduced asappropriate by an amount equal to thededuction which would be made withrespect to excess earnings under theprovisions of sections 203 (b), (f), (g),(h), (j), and (l) of the Social SecurityAct (42 U.S.C. 403 (b), (f), (g), (h), (j),and (l)), as if such benefit paymentswere benefits payable under section 202of the Social Security Act (42 U.S.C.402) (see §§ 404.428–404.456 of this title).

[48 FR 24293, May 31, 1983]

EDITORIAL NOTE: Section 725.536 revised at48 FR 24293, May 31, 1983, contains informa-tion collection requirements which are noteffective until approved by the Office ofManagement and Budget. Notice of approvalwill be published in the FEDERAL REGISTER.

§ 725.537 Reductions; retroactive effectof an additional claim for benefits.

Beginning with the month in which aperson other than a miner files a claimand becomes entitled to benefits, thebenefits of other persons entitled tobenefits with respect to the sameminer, are adjusted downward, if nec-essary, so that no more than the per-missible amount of benefits (the maxi-mum amount for the number of bene-ficiaries involved) will be paid.

§ 725.538 Reductions; effect of aug-mentation of benefits based on sub-sequent qualification of individual.

(a) Ordinarily, a written request thatthe benefits of a miner or survivingspouse be augmented on account of aqualified dependent is made as part ofthe claim for benefits. However, it mayalso be made thereafter.

(b) In the latter case, beginning withthe month in which such a request isfiled on account of a particular depend-ent and in which such dependent quali-fies for augmentation purposes underthis part, the augmented benefits at-tributable to other qualified depend-ents (with respect to the same miner orsurviving spouse), if any, are adjusteddownward, if necessary, so that thepermissible amount of augmented ben-efits (the maximum amount for thenumber of dependents involved) willnot be exceeded.

(c) Where, based on the entitlementto benefits of a miner or surviving


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20 CFR Ch. VI (4–1–98 Edition)§ 725.539

spouse, a dependent would have quali-fied for augmentation purposes for aprior month of such miner’s or surviv-ing spouse’s entitlement had such re-quest been filed in such prior month,such request is effective for such priormonth. For any month before themonth of filing such request, however,otherwise correct benefits previouslycertified by the Office may not bechanged. Rather the amount of theaugmented benefit attributable to thedependent filing such request in thelater month is reduced for each monthof the retroactive period to the extentthat may be necessary. This meansthat for each month of the retroactiveperiod, the amount payable to the de-pendent filing the later augmentationrequest is the difference, if any, be-tween:

(1) The total amount of augmentedbenefits certified for payment for otherdependents for that month, and

(2) The permissible amount of aug-mented benefits (the maximum amountfor the number of dependents involved)payable for the month for all depend-ents, including the dependent filinglater.

§ 725.539 More than one reductionevent.

If a reduction for receipt of State orFederal benefits and a reduction on ac-count of excess earnings are chargeableto the same month, the benefit for suchmonth is first reduced (but not belowzero) by the amount of the State orFederal benefits, and the remainder ofthe benefit for such month, if any, isthen reduced (but not below zero) bythe amount of excess earnings charge-able to such month.

OVERPAYMENTS; UNDERPAYMENTS

§ 725.540 Overpayments.(a) General. As used in this subpart,

the term ‘‘overpayment’’ includes:(1) Payment where no amount is pay-

able 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 amountsrequired by the Act (see § 725.533);

(4) A payment under this part madeto a resident of a State whose residents

are not entitled to benefits (see§§ 725.402 and 725.403);

(5) Payment resulting from failure toterminate benefits to an individual nolonger entitled thereto;

(6) Duplicate benefits paid to a claim-ant on account of concurrent eligi-bility under this part and part 410 or727 of this title or as provided in§ 725.309.

(b) Overpaid beneficiary is living. If thebeneficiary to whom an overpaymentwas made is living at the time of a de-termination of such overpayment, isentitled to benefits at the time of theoverpayment, or at any time thereafterbecomes so entitled, no benefit for anymonth is payable to such individual,except as provided in paragraph (c) ofthis section, until an amount equal tothe amount of the overpayment hasbeen withheld or refunded.

(c) Adjustment by withholding part of amonthly benefit. Adjustment underparagraph (b) of this section may be ef-fected by withholding a part of themonthly benefit payable to a bene-ficiary where it is determined that:

(1) Withholding the full amount eachmonth would deprive the beneficiary ofincome required for ordinary and nec-essary living expenses;

(2) The overpayment was not causedby the beneficiary’s intentionally falsestatement or representation, or willfulconcealment of, or deliberate failure tofurnish, material information; and

(3) Recoupment can be effected in anamount of not less than $10 a monthand at a rate which would not unrea-sonably extend the period of adjust-ment.

(d) Overpaid beneficiary dies before ad-justment. If an overpaid beneficiary diesbefore adjustment is completed underthe provisions of paragraph (b) of thissection, recovery of the overpaymentshall be effected through repayment bythe estate of the deceased overpaidbeneficiary, or by withholding ofamounts due the estate of such de-ceased beneficiary, or both.

§ 725.541 Notice of waiver of adjust-ment or recovery of overpayment.

Whenever a determination is madethat more than the correct amount ofpayment has been made, notice of the


821


provisions of section 204(b) of the So-cial Security Act regarding waiver ofadjustment or recovery shall be sent tothe overpaid individual, to any otherindividual against whom adjustment orrecovery of the overpayment is to beeffected, and to any operator or carrierwhich may be liable to such overpaidindividual.

§ 725.542 When waiver of adjustmentor recovery may be applied.

There shall be no adjustment or re-covery of an overpayment in any casewhere an incorrect payment has beenmade with respect to an individual:

(a) Who is without fault, and where(b) Adjustment or recovery would ei-

ther:(1) Defeat the purpose of title IV of

the Act, or(2) Be against equity and good con-

science.

§ 725.543 Standards for waiver of ad-justment or recovery.

The standards for determining theapplicability of the criteria listed in§ 725.542 shall be the same as those ap-plied by the Social Security Adminis-tration under §§ 410.561–410.561h of thistitle.

§ 725.544 Collection and compromise ofclaims for overpayment.

(a) General effect of the Federal ClaimsCollection Act of 1966. In accordancewith the Federal Claims Collection Actof 1966 and applicable regulations,claims by the Office against an individ-ual for recovery of an overpaymentunder this part not exceeding the sumof $20,000, exclusive of interest, may becompromised, or collection suspendedor terminated, where such individualor his or her estate does not have thepresent or prospective ability to paythe full amount of the claim within areasonable time (see paragraph (c) ofthis section), or the cost of collectionis likely to exceed the amount of re-covery (see paragraph (d) of this sec-tion), except as provided under para-graph (b) of this section.

(b) When there will be no compromise,suspension, or termination of collection ofa claim for overpayment. (1) In any casewhere the overpaid individual is alive,a claim for overpayment will not be

compromised, nor will there be suspen-sion or termination of collection of theclaim by the Office, if there is an indi-cation of fraud, the filing of a falseclaim, or misrepresentation on the partof such individual or on the part of anyother party having any interest in theclaim.

(2) In any case where the overpaid in-dividual is deceased:

(i) A claim for overpayment in excessof $5,000 will not be compromised, norwill there be suspension or terminationof collection of the claim by the Officeif there is an indication of fraud, thefiling of a false claim, or misrepresen-tation on the part of such deceased in-dividual; and

(ii) A claim for overpayment, regard-less of the amount, will not be com-promised, nor will there be suspensionor termination of collection of theclaim by the Office if there is an indi-cation that any person other than thedeceased overpaid individual had a partin the fraudulent action which resultedin the overpayment.

(c) Inability to pay claim for recovery ofoverpayment. In determining whetherthe overpaid individual is unable topay a claim for recovery of an overpay-ment under this part, the Office shallconsider the individual’s age, health,present and potential income (includ-ing inheritance prospects), assets (e.g.,real property, savings account), pos-sible concealment or improper transferof assets, and assets or income of suchindividual which may be available inenforced collection proceedings. TheOffice will also consider exemptionsavailable to such individual under thepertinent State or Federal law in suchproceedings. In the event the overpaidindividual is deceased, the Office shallconsider the available assets of the es-tate, taking into account any liens orsuperior claims against the estate.

(d) Cost of collection or litigative prob-abilities. Where the probable costs of re-covering an overpayment under thispart would not justify enforced collec-tion proceedings for the full amount ofthe claim, or where there is doubt con-cerning the Office’s ability to establishits claim as well as the time which itwill take to effect such collection, acompromise or settlement for less thanthe full amount may be considered.


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20 CFR Ch. VI (4–1–98 Edition)§ 725.545

(e) Amount of compromise. The amountto be accepted in compromise of aclaim for overpayment under this partshall bear a reasonable relationship tothe amount which can be recovered byenforced collection proceedings, givingdue consideration to the exemptionavailable to the overpaid individualunder State or Federal law and thetime which collection will take.

(f) Payment. Payment of the amountthe Office has agreed to accept as acompromise in full settlement of aclaim for recovery of an overpaymentunder this part shall be made withinthe time and in the manner set by theOffice. A claim for the overpaymentshall not be considered compromised orsettled until the full payment of thecompromised amount has been madewithin the time and manner set by theOffice. Failure of the overpaid individ-ual or his or her estate to make suchpayment as provided shall result in re-instatement of the full amount of theoverpayment less any amounts paidprior to such default.


(Pub. L. No. 96–511)


§ 725.545 Underpayments.(a) General. As used in this subpart,

the term ‘‘underpayment’’ includes apayment in an amount less than theamount of the benefit due for suchmonth, and nonpayment where someamount of such benefits is payable.

(b) Underpaid individual is living. If anindividual to whom an underpaymentwas made is living, the deficit rep-resented by such underpayment shallbe paid to such individual either in asingle payment (if he or she is not enti-tled to a monthly benefit or if a singlepayment is requested by the claimantin writing) or by increasing one ormore monthly benefit payments towhich such individual becomes enti-tled.

(c) Underpaid individual dies before ad-justment of underpayment. If an individ-ual to whom an underpayment wasmade dies before receiving payment ofthe deficit or negotiating the check orchecks representing payment of the

deficit, such payment shall be distrib-uted to the living person (or persons) inthe highest order of priority as follows:

(1) The deceased individual’s surviv-ing spouse who was either:

(i) Living in the same household withthe deceased individual at the time ofsuch individual’s death; or

(ii) In the case of a deceased miner,entitled for the month of death toblack lung benefits as his or her surviv-ing spouse or surviving divorcedspouse.

(2) In the case of a deceased miner orspouse his or her child entitled to bene-fits as the surviving child of suchminer or surviving spouse for themonth in which such miner or spousedied (if more than one such child, inequal shares to each such child).

(3) In the case of a deceased miner,his parent entitled to benefits as thesurviving parent of such miner for themonth in which such miner died (ifmore than one such parent, in equalshares to each such parent).

(4) The surviving spouse of the de-ceased individual who does not qualifyunder paragraph (c)(1) of this section.

(5) The child or children of the de-ceased individual who do not qualifyunder paragraph (c)(2) of this section(if more than one such child, in equalshares to each such child).

(6) The parent or parents of the de-ceased individual who do not qualifyunder paragraph (c)(3) of this section(if more than one such parent, in equalshares to each such parent).

(7) The legal representative of the es-tate of the deceased individual as de-fined in paragraph (e) of this section.

(d) Deceased beneficiary. In the eventthat a person, who is otherwise quali-fied to receive payments as the resultof a deficit caused by an underpaymentunder the provisions of paragraph (c) ofthis section, dies before receiving pay-ment or before negotiating the checkor checks representing such payment,his or her share of the underpaymentshall be divided among the remainingliving person(s) in the same order orpriority. In the event that there is(are) no other such person(s), the un-derpayment shall be paid to the livingperson(s) in the next lower order of pri-ority under paragraph (c) of this sec-tion.


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(e) Definition of legal representative.The term ‘‘legal representative,’’ forthe purpose of qualifying for receipt ofan underpayment, generally means theexecutor or the administrator of theestate of the deceased beneficiary.However, it may also include an indi-vidual, institution or organization act-ing on behalf of an unadministered es-tate, provided the person can give theOffice good acquittance (as defined inparagraph (f) of this section). The fol-lowing persons may qualify as legalrepresentative for purposes of this sec-tion, provided they can give the Officegood acquittance:

(1) A person who qualifies under aState’s ‘‘small estate’’ statute; or

(2) A person resident in a foreigncountry who under the laws and cus-toms of that country, has the right toreceive assets of the estate; or

(3) A public administrator; or(4) A person who has the authority

under applicable law to collect the as-sets of the estate of the deceased bene-ficiary.

(f) Definition of ‘‘good acquittance.’’ Aperson is considered to give the Office‘‘good acquittance’’ when payment tothat person will release the Office fromfurther liability for such payment.

§ 725.546 Relation to provisions for re-ductions or increases.

The amount of an overpayment or anunderpayment is the difference be-tween the amount to which the bene-ficiary was actually entitled and theamount paid. Overpayment and under-payment simultaneously outstandingagainst the same beneficiary shall firstbe adjusted against one another beforeadjustment pursuant to the other pro-visions of this subpart.

§ 725.547 Applicability of overpaymentand underpayment provisions tooperator or carrier.

(a) The provisions of this subpart re-lating to overpayments and underpay-ments shall be applicable to overpay-ments and underpayments made by re-sponsible operators or their insurancecarriers, as appropriate. However, if anoverpayment has been made by an op-erator, the provisions of §§ 725.541–725.544 shall not be applicable.

(b) No operator or carrier may makean adjustment of an overpayment with-out prior application to, and approvalby, the Office which shall exercise fullsupervisory authority over the adjust-ment of all overpayments.

(c) In any case involving either over-payments or underpayments, the Officemay take any necessary action, anddeputy commissioners may issue ap-propriate orders to protect the rightsof the parties.

(d) Disputes arising out of orders soissued shall be resolved by the proce-dures set out in subpart E of this part.

Subpart H—Enforcement ofLiability; Reports

§ 725.601 Enforcement generally.(a) The Act, together with certain in-

corporated provisions from the Long-shoremen’s and Harbor Workers’ Com-pensation Act, contains a number ofprovisions which subject an operator orother employer, claimants and othersto penalties for failure to comply withcertain provisions of the Act, or failureto commence and continue promptperiodic payments to a beneficiary.

(b) It is the policy and intent of theDepartment to vigorously enforce theprovisions of this part through the useof the remedies provided by the Act.Accordingly, if an operator refuses topay benefits with respect to a claim forwhich the operator has been adju-dicated liable, the Director shall in-voke and execute the lien on the prop-erty of the operator as described in§ 725.603. Enforcement of this lien shallbe pursued in an appropriate U.S. dis-trict court. If the Director determinesthat the remedy provided by § 725.603may not be sufficient to guarantee thecontinued compliance with the termsof an award or awards against the oper-ator, the Director shall in additionseek an injunction in the U.S. districtcourt to prohibit future noncomplianceby the operator and such other relief asthe court considers appropriate (see§ 725.604). If an operator unlawfully sus-pends or terminates the payment ofbenefits to a claimant, the deputy com-missioner shall declare the award indefault and proceed in accordance with§ 725.605. In all cases payments in addi-tion to compensation (see § 725.607) and


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20 CFR Ch. VI (4–1–98 Edition)§ 725.602

interest (see § 725.608) shall be soughtby the Director or awarded by the dep-uty commissioner.

(c) In certain instances the remediesprovided by the Act are concurrent;that is, more than one remedy mightbe appropriate in any given case. Insuch a case, the Director shall selectthe remedy or remedies appropriate forthe enforcement action. In making thisselection, the Director shall considerthe best interests of the claimant aswell as those of the Fund.

§ 725.602 Reimbursement of the fund.(a) In any case in which the fund has

paid benefits, including medical bene-fits, on behalf of an operator or otheremployer which is determined liabletherefore, or liable for a part thereof,such operator or other employer shallsimultaneously with the first paymentof benefits made to the beneficiary, re-imburse the fund (with interest) for thefull amount of all benefit paymentsmade by the fund with respect to theclaim.

(b) In any case where benefit pay-ments have been made by the fund, thefund shall be subrogated to the rightsof the beneficiary. The Secretary ofLabor may, as appropriate, exercisesuch subrogation rights.

§ 725.603 Payments by the fund on be-half of an operator; liens.

(a) If an amount is paid out of thefund to an individual entitled to bene-fits under this part or part 727 of thissubchapter on behalf of an operator orother employer which is or was re-quired to pay or secure the payment ofall or a portion of such amount (see§ 725.522), the operator or other em-ployer shall be liable to the UnitedStates for repayment to the fund of theamount of benefits properly attrib-utable to such operator or other em-ployer.

(b) If an operator or other employerliable to the fund refuses to pay, afterdemand, the amount of such liability,there shall be a lien in favor of theUnited States upon all property andrights to property, whether real or per-sonal, belonging to such operator orother employer. The lien arises on thedate on which such liability is finallydetermined, and continues until it is

satisfied or becomes unenforceable byreason of lapse of time.

(c) (1) Except as otherwise providedunder this section, the priority of thelien shall be determined in the samemanner as under section 6323 of the In-ternal Revenue Code of 1954.

(2) In the case of a bankruptcy or in-solvency proceeding, the lien imposedunder this section shall be treated inthe same manner as a lien for taxes dueand owing to the United States for pur-poses of the Bankruptcy Act or section3466 of the Revised Statutes (31 U.S.C.191).

(3) For purposes of applying section6323(a) of the Internal Revenue Code of1954 to determine the priority betweenthe lien imposed under this section andthe Federal tax lien, each lien shall betreated as a judgment lien arising as ofthe time notice of such lien is filed.

(4) For purposes of the section, noticeof the lien imposed hereunder shall befiled in the same manner as under sec-tion 6323(f) (disregarding paragraph (4)thereof) and (g) of the Internal Reve-nue Code of 1954.

(5) In any case where there has beena refusal or neglect to pay the liabilityimposed under this section, the Sec-retary of Labor may bring a civil ac-tion in a district court of the UnitedStates to enforce the lien of the UnitedStates under this section with respectto such liability or to subject any prop-erty, of whatever nature, of the opera-tor, or in which it has any right, title,or interest, to the payment of such li-ability.

(6) The liability imposed by thisparagraph may be collected at a pro-ceeding in court if the proceeding iscommenced within 6 years after thedate upon which the liability was fi-nally determined, or prior to the expi-ration of any period for collectionagreed upon in writing by the operatorand the United States before the expi-ration of such 6-year period. This pe-riod of limitation shall be suspendedfor any period during which the assetsof the operator are in the custody orcontrol of any court of the UnitedStates, or of any State, or the Districtof Columbia, and for 6 months there-after, and for any period during whichthe operator is outside the United


825


States if such period of absence is for acontinuous period of at least 6 months.

§ 725.604 Enforcement of final awards.Notwithstanding the provisions of

§ 725.603, if an operator or other em-ployer or its officers or agents fails tocomply with an order awarding bene-fits that has become final, any bene-ficiary of such award or the deputycommissioner may apply for the en-forcement of the order to the Federaldistrict court for the judicial districtin which the injury occurred (or to theU.S. District Court for the District ofColumbia if the injury occurred in theDistrict). If the court determines thatthe order was made and served in ac-cordance with law, and that such oper-ator or other employer or its officers oragents have failed to comply there-with, the court shall enforce obedienceto the order by writ of injunction or byother proper process, mandatory orotherwise, to enjoin upon such opera-tor or other employer and its officersor agents compliance with the order.

§ 725.605 Defaults.(a) Except as is otherwise provided in

this part, no suspension, terminationor other failure to pay benefits award-ed to a claimant is permitted. If an em-ployer found liable for the payment ofsuch benefits fails to make such pay-ments within 30 days after any date onwhich such benefits are due and pay-able, the person to whom such benefitsare payable may, within one year aftersuch default, make application to thedeputy commissioner for a supple-mentary order declaring the amount ofthe default.

(b) If after investigation, notice andhearing as provided in subparts D andE of this part, a default is found, thedeputy commissioner or the adminis-trative law judge, if a hearing is re-quested, shall issue a supplementaryorder declaring the amount of the de-fault, if any. In cases where a lump-sum award has been made, if the pay-ment in default is an installment, thedeputy commissioner or administrativelaw judge, may, in his or her discre-tion, declare the whole of the award asthe amount in default. The applicantmay file a certified copy of such sup-plementary order with the clerk of the

Federal district court for the judicialdistrict in which the operator has itsprincipal place of business or main-tains an office or for the judicial dis-trict in which the injury occurred. Incase such principal place of business oroffice is in the District of Columbia, acopy of such supplementary order maybe filed with the clerk of the U.S. Dis-trict Court for the District of Colum-bia. Such supplementary order shall befinal and the court shall, upon the fil-ing of the copy, enter judgment for theamount declared in default by the sup-plementary order if such supple-mentary order is in accordance withlaw. Review of the judgment may behad as in civil suits for damages atcommon law. Final proceedings to exe-cute the judgment may be had by writof execution in the form used by thecourt in suits at common law in ac-tions of assumpsit. No fee shall be re-quired for filing the supplementaryorder nor for entry of judgment there-on, and the applicant shall not be lia-ble for costs in a proceeding for reviewof the judgment unless the court shallotherwise direct. The court shall mod-ify such judgment to conform to anylater benefits order upon presentationof a certified copy thereof to the court.

(c) In cases where judgment cannotbe satisfied by reason of the employer’sinsolvency or other circumstances pre-cluding payment, the deputy commis-sioner shall make payment from thefund, and in addition, provide any nec-essary medical, surgical, and othertreatment required by subpart I of thispart. A defaulting employer shall beliable to the Fund for payment of theamounts paid by the fund under thissection; and for the purpose of enforc-ing this liability, the fund shall be sub-rogated to all the rights of the personreceiving such payments or benefits.

§ 725.606 Security for the payment ofbenefits.

Whenever an adjudication officerdeems it advisable, he or she may re-quire any operator or other employerto make a deposit with the Treasurerof the United States to secure theprompt and convenient payment ofbenefits to eligible claimants. Pay-ments may be made from such deposit,or such deposit may be returned to an


826

20 CFR Ch. VI (4–1–98 Edition)§ 725.607

operator or other employer, only uponthe order of such adjudication officer.The adjudication officer shall requirethe deposit of security pursuant to thissection in any case where an operatoror other liable employer is uninsuredor has failed to secure the payment ofbenefits.

§ 725.607 Payments in addition to com-pensation.

(a) If any benefits payable under theterms of (1) an award by a deputy com-missioner (§ 725.419(d)), (2) a decisionand order filed and served by an admin-istrative law judge (§ 725.478), or (3) adecision filed by the Board or a U.S.court of appeals, are not paid by an op-erator or other employer ordered tomake such payments within 10 daysafter such payments become due, thereshall be added to such unpaid benefitsan amount equal to 20 percent thereof,which shall be paid to the claimant atthe same time as, but in addition to,such benefits, unless review of theorder making such award is sought asprovided in section 21 of the LHWCAand an order staying payments hasbeen issued.

(b) If, on account of an operator’s orother employer’s failure to pay benefitsas provided in paragraph (a) of this sec-tion, benefit payments are made by thefund, the eligible claimant shall never-theless be entitled to receive such addi-tional compensation to which he or shemay be eligible under paragraph (a) ofthis section, with respect to allamounts paid by the fund on behalf ofsuch operator or other employer.

(c) The fund shall not be liable forpayments in addition to compensationunder any circumstances.

§ 725.608 Interest.(a) If an operator or other employer

fails or refuses to pay any or all bene-fits due under the terms of an initialdetermination by a deputy commis-sioner (§ 725.420), a decision and orderfiled and served by an administrativelaw judge (§ 725.478) or a decision filedby the Board or a United States courtof appeals, including any penaltyawarded in addition to benefits in ac-cordance with § 725.607, such operatorshall be liable for simple annual inter-est on all past due benefits computed

from the date on which such benefitswere due and payable, in addition tosuch operator’s or other employer’s li-ability as is otherwise provided in thispart. On claims filed on or after Janu-ary 1, 1982, in which the payment ofretroactive benefits has been withheldpending final adjudication of liabilityin accordance with section 422(d) of theAct as amended, interest on such with-held retroactive benefit payments shallbegin to accumulate 30 days after thedate of the first determination thatsuch an award should be made. Thefirst determination that such an awardshould be made may be a deputy com-missioner’s initial determination of en-titlement, an award made by an admin-istrative law judge or a decision by theBoard or a court, whichever is the firstsuch determination of entitlementmade upon the claim. Except as pro-vided in paragraph (b) of this section,interest payments owed under thisparagraph shall be made directly to thebeneficiary. However, an operator orother employer shall have no obliga-tion to pay interest except with respectto benefits which it has either agreedto pay or it has been directed to pay byan order which has become final.

(b) If an operator or other employerfails or refuses to pay any or all bene-fits due pursuant to an award of bene-fits or an initial determination of eligi-bility made by the deputy commis-sioner and the Fund undertakes suchpayments, such operator or other em-ployer shall be liable to the Fund forsimple annual interest on all paymentsmade by the Fund for which such oper-ator is determined liable, computedfrom the first date on which such bene-fits are paid by the Fund, in additionto such operator’s liability to theFund, as is otherwise provided in thispart. Interest payments owed pursuantto this paragraph shall be paid directlyto the Fund.

(c) The rates of interest applicable toparagraphs (a) and (b) of this sectionshall be computed as follows:

(1) For all amounts outstanding priorto January 1, 1982, the rate shall be 6%simple annual interest;

(2) For all amounts outstanding forany period during calendar year 1982the rate shall be 15% simple annual in-terest; and


827


(3) For all amounts outstanding dur-ing any period after calendar year 1982the rate shall be simple annual interestat the rate established by section 6621of the Internal Revenue Code of 1954which is in effect for such period.

(d) The Fund shall not be liable forthe payment of interest under any cir-cumstances, other than the payment ofinterest on advances from the UnitedStates Treasury as provided by section9501(c) of the Internal Revene Code of1954.

[48 FR 24294, May 31, 1983]

§ 725.620 Failure to secure benefits;other penalties.

(a) If an operator fails to dischargeits insurance obligations under theAct, the provisions of § 725.495 shallapply.

(b) Any employer who knowinglytransfers, sells, encumbers, assigns, orin any manner disposes of, conceals, se-crets, or destroys any property belong-ing to such employer, after one of itsemployees has been injured within thepurview of the Act, and with intent toavoid the payment of benefits underthe Act to such miner or his or her de-pendents, shall be guilty of a mis-demeanor and, upon conviction thereof,shall be punished by a fine of not morethan $1,000, or by imprisonment for notmore than one year, or by both. In anycase where such employer is a corpora-tion, the president, secretary, andtreasurer thereof shall be also sever-ally liable for such penalty or impris-onment as well as jointly liable withsuch corporation for such fine.

(c) No agreement by a miner to payany portion of a premium paid to a car-rier by such miner’s employer or tocontribute to a benefit fund or depart-ment maintained by such employer forthe purpose of providing benefits ormedical services and supplies as re-quired by this part shall be valid; andany employer who makes a deductionfor such purpose from the pay of aminer entitled to benefits under theAct shall be guilty of a misdemeanorand upon conviction thereof shall bepunished by a fine of not more than$1,000.

(d) No agreement by a miner to waivehis or her right to benefits under theAct and the provisions of this partshall be valid.

(e) This section shall not affect anyother liability of the employer underthis part.

§ 725.621 Reports.

(a) Upon making the first payment ofbenefits and upon suspension, reduc-tion, or increase of payments, the oper-ator or other employer responsible formaking payments shall immediatelynotify the deputy commissioner of theaction taken, in accordance with aform prescribed by the Office.

(b) Within 16 days after final pay-ment of benefits has been made by anemployer, such employer shall so no-tify the deputy commissioner, in ac-cordance with a form prescribed by theOffice, stating that such final payment,has been made, the total amount ofbenefits paid, the name of the bene-ficiary, and such other information asthe Office deems pertinent.

(c) The Director may from time totime prescribe such additional reportsto be made by operators, other employ-ers, or carriers as the Director mayconsider necessary for the efficient ad-ministration of the Act.

(d) Any employer who fails or refusesto file any report required of such em-ployer under this section shall be sub-ject to a civil penalty not to exceed$500 for each failure or refusal, whichpenalty shall be determined in accord-ance with the procedures set forth in§ 725.495, as appropriate.

(e) No request for information or re-sponse to such request shall be consid-ered a report for purposes of this sec-tion or the Act, unless it is so des-ignated by the Director or by this sec-tion.


(Pub. L. No. 96–511)



828

20 CFR Ch. VI (4–1–98 Edition)§ 725.701

Subpart I—Medical Benefits andVocational Rehabilitation

§ 725.701 Availability of medical bene-fits.

(a) A miner who is determined to beeligible for benefits under this part orpart 727 of this subchapter is entitledto medical benefits as set forth in thissubpart as of the date of his or herclaim, but in no event before January1, 1974. No medical benefits shall beprovided to the survivor or dependentof a miner under this part.

(b) A responsible operator, other em-ployer, or where there is neither, theFund, shall furnish a miner entitled tobenefits under this part with such med-ical, surgical, and other attendanceand treatment, nursing and hospitalservices, medicine and apparatus, andany other medical service or supply,for such periods as the nature of theminer’s pneumoconiosis and ancillarypulmonary conditions and disabilityrequire.

(c) The medical benefits referred toin paragraphs (a) and (b) of this sectionshall include palliative measures usefulonly to prevent pain or discomfort as-sociated with the miner’s pneumo-coniosis or attendant disability.

(d) The costs recoverable under thissubpart shall include the reasonablecost of travel necessary for medicaltreatment (to be determined in accord-ance with prevailing United Statesgovernment mileage rates) and the rea-sonable documented cost to the mineror medical provider incurred in com-municating with the employer, carrier,or district director on matters con-nected with medical benefits.

§ 725.701A Claims for medical benefitsonly under section 11 of the ReformAct.

(a) Section 11 of the Reform Act di-rects the Secretary of Health, Edu-cation and Welfare to notify eachminer receiving benefits under part Bof title IV of the Act that he or shemay file a claim for medical treatmentbenefits described in this subpart. Sec-tion 725.308(b) of this subpart providesthat a claim for medical treatmentbenefits shall be filed on or before De-cember 31, 1980, unless the period is en-larged for good cause shown. This sec-

tion sets forth the rules governing theprocessing adjudication, and paymentof claims filed under section 11.

(b) (1) A claim filed pursuant to thenotice described in paragraph (a) ofthis section shall be considered a claimfor medical benefits only, and shall befiled, processed, and adjudicated in ac-cordance with the provisions of thispart, except as provided in this section.While a claim for medical benefitsmust be treated as any other claimfiled under part C of title IV of the Act,the Department shall accept the SocialSecurity Administration’s finding ofentitlement as its initial determina-tion.

(2) In the case of a part B beneficiarywhose coal mine employment termi-nated before January 1, 1970, the Sec-retary shall make an immediate awardof medical benefits. Where the part Bbeneficiary’s coal mine employmentterminated on or after January 1, 1970,the Secretary shall immediately au-thorize the payment of medical bene-fits and thereafter inform the respon-sible operator, if any, of the operator’sright to contest the claimant’s entitle-ment for medical benefits.

(c) A miner on whose behalf a claimis filed under this section (see § 725.301)must have been alive on March 1, 1978,in order for the claim to be considered.

(d) The criteria contained in subpartC of part 727 of this subchapter are ap-plicable to claims for medical benefitsfiled under this section.

(e) No determination made with re-spect to a claim filed under this sectionshall affect any determination pre-viously made by the Social SecurityAdministration. The Social SecurityAdministration may, however, reopen apreviously approved claim if the condi-tions set forth in § 410.672(c) of thischapter are present. These conditionsare generally limited to fraud or con-cealment.

(f) If medical benefits are awardedunder this section, such benefits shallbe payable by a responsible coal mineoperator (see §§ 725.491–725.493), if theminer’s last employment occurred onor after January 1, 1970, and in allother cases by the fund. An operatorwhich may be required to provide med-ical treatment benefits to a minerunder this section shall have the right


829


to participate in the adjudication ofthe claim as is otherwise provided inthis part.

(g) Any miner whose coal mine em-ployment terminated after January 1,1970, may be required to submit to amedical examination requested by anidentified operator. The unreasonablerefusal to submit to such an examina-tion shall have the same consequencesas are provided under § 725.408.

(h) If a miner is determined eligiblefor medical benefits in accordance withthis section, such benefits shall be pro-vided from the date of filing, exceptthat such benefits may also includepayments for any unreimbursed medi-cal treatment costs incurred personallyby such miner during the period fromJanuary 1, 1974, to the date of filingwhich are attributable to medical carerequired as a result of the miner’s totaldisability due to pneumoconiosis. Noreimbursement for health insurancepremiums, taxes attributable to anypublic health insurance coverage, orother deduction or payments made forthe purpose of securing third party li-ability for medical care costs is au-thorized by this section. If a minerseeks reimbursement for medical carecosts personally incurred before the fil-ing of a claim under this section, thedeputy commissioner shall require doc-umented proof of the nature of themedical service provided, the identityof the medical provider, the cost of theservice, and the fact that the cost waspaid by the miner, before reimburse-ment before such cost may be awarded.

[43 FR 36772, Aug. 18, 1978, as amended at 45FR 44264, July 1, 1980]

§ 725.702 Physician defined.

The term ‘‘physician’’ includes onlydoctors of medicine (MD) and osteo-pathic practitioners within the scope oftheir practices as defined by State law.No treatment or medical services per-formed by any other practitioner of thehealing arts is authorized by this part,unless such treatment or service is au-thorized and supervised both by a phy-sician as defined in this section and thedistrict director.

§ 725.703 Notification of right to medi-cal benefits; authorization of treat-ment.

(a) Upon notification to a miner ofsuch miner’s entitlement to benefits,the Office shall provide the miner witha list of authorized treating physiciansand medical facilities in the area of theminer’s residence. The miner may se-lect a physician from this list or mayselect another physician with approvalof the Office. Where emergency serv-ices are necessary and appropriate, au-thorization by the Office shall not berequired.

(b) The Office may, on its own initia-tive, or at the request of a responsibleoperator, order a change of physiciansor facilities, but only where it has beendetermined that the change is desirableor necessary in the best interest of theminer. The miner may change physi-cians or facilities subject to the ap-proval of the Office.

(c) If adequate treatment cannot beobtained in the area of the claimant’sresidence, the Office may authorize theuse of physicians or medical facilitiesoutside such area as well as reimburse-ment for travel expenses and overnightaccommodations.

§ 725.704 Arrangements for medicalcare.

(a) Operator liability. If an operatorhas been determined liable for the pay-ment of benefits to a miner, the Officeshall notify such operator or insurer ofthe names, addresses, and telephonenumbers of the authorized providers ofmedical benefits chosen by an entitledminer, and shall require the operatoror insurer to:

(1) Notify the miner and the provid-ers chosen that such operator will beresponsible for the cost of medicalservices provided to the miner on ac-count of the miner’s total disabilitydue to pneumoconiosis;

(2) Designate a person or personswith decisionmaking authority withwhom the Office, the miner and author-ized providers may communicate onmatters involving medical benefits pro-vided under this subpart and notify theOffice, miner and providers of such des-ignation;


830

20 CFR Ch. VI (4–1–98 Edition)§ 725.705

(3) Make arrangements for the directreimbursement of providers for theirservices.

(b) Fund liability. If there is no opera-tor found liable for the payment of ben-efits, the Office shall make necessaryarrangements to provide medical careto the miner, notify the miner andmedical care facility selected of the li-ability of the fund, designate a personor persons with whom the miner orprovider may communicate on mattersrelating to medical care, and make ar-rangements for the direct reimburse-ment of the medical provider.

§ 725.705 Authorization to providemedical services.

(a) Except as provided in paragraph(b) of this section, medical servicesfrom an authorized provider which arepayable under § 725.701 shall not requireprior approval of the Office or the re-sponsible operator.

(b) Except where emergency treat-ment is required, prior approval of theOffice or the responsible operator shallbe obtained before any hospitalizationor surgery, or before ordering an appa-ratus for treatment where the purchaseprice exceeds $100. A request for ap-proval of non-emergency hospitaliza-tion or surgery shall be acted upon ex-peditiously, and approval or dis-approval will be given by telephone if awritten response cannot be given with-in 7 days following the request. No em-ployee of the Department of Labor,other than a district director or theChief, Branch of Medical Analysis andServices, DCMWC, is authorized to ap-prove a request for hospitalization orsurgery by telephone.

(c) Payment for medical services,treatment, or an apparatus shall bemade at no more than the rate prevail-ing in the community in which the pro-viding physician, medical facility orsupplier is located.

§ 725.706 Reports of physicians andsupervison of medical care.

(a) Within 30 days following the firstmedical or surgical treatment providedunder § 725.701, the treating physicianor facility shall furnish to the Officeand the responsible operator, if any, areport of such treatment.

(b) In order to permit continuing su-pervision of the medical care providedto the miner with respect to the neces-sity, character and sufficiency of anymedical care furnished or to be fur-nished, the treating physician, facility,employer or carrier shall provide suchreports in addition to those required byparagraph (a) of this section as the Of-fice may from time to time require.Within the discretion of the district di-rector, payment may be refused to anymedical provider who fails to submitany report required by this section.

§ 725.707 Disputes concerning medicalbenefits.

(a) Whenever a dispute develops con-cerning medical services under thispart, the district director shall at-tempt to informally resolve such dis-pute. In this regard the district direc-tor may, on his or her own initiative orat the request of the responsible opera-tor order the claimant to submit to anexamination by a physician selected bythe district director.

(b) If no informal resolution is ac-complished, the district director shallrefer the case to the Office of Adminis-trative Law Judges for hearing in ac-cordance with this part. Any such hear-ing shall be scheduled at the earliestpossible time and shall take precedenceover all other requests for hearing ex-cept for prior requests for hearing aris-ing under this section and as providedby § 727.405 of this subchapter. Duringthe pendency of such adjudication, theDirector may order the payment ofmedical benefits prior to final adju-dication under the same conditions ap-plicable to benefits awarded under§ 725.522.

(c) In the development or adjudica-tion of a dispute over medical benefits,the adjudication officer is authorizedto take whatever action may be nec-essary to protect the health of a to-tally disabled miner.

(d) Any interested medical providermay, if appropriate, be made a party toa dispute over medical benefits.

§ 725.710 Objective of vocational reha-bilitation.

The objective of vocational rehabili-tation is the return of a miner who istotally disabled for work in or around


831


a coal mine and who is unable to uti-lize those skills which were employedin the miner’s coal mine employmentto gainful employment commensuratewith such miner’s physical impair-ment. This objective may be achievedthrough a program of re-evaluation andredirection of the miner’s abilities, orretraining in another occupation, andselective job placement assistance.

§ 725.711 Requests for referral to voca-tional rehabilitation assistance.

Each miner who has been determinedentitled to receive benefits under partC of title IV of the Act shall be in-formed by the OWCP of the availabilityand advisability of vocational rehabili-tation services. If such miner choosesto avail himself or herself of vocationalrehabilitation, his or her request shallbe processed and referred by OWCP vo-cational rehabilitation advisors pursu-ant to the provisions of §§ 702.501–702.508of this chapter as is appropriate.

PART 726—BLACK LUNG BENEFITS;REQUIREMENTS FOR COAL MINEOPERATOR’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 Workmen’s Compensa-

tion programs.726.7 Forms, submission of information.

Subpart B—Authorization of Self-Insurers

726.101 Who may be authorized to self-in-sure.

726.102 Application for authority to becomea self-insurer; how filed; information tobe submitted.

726.103 Application for authority to self-in-sure; effect of regulations contained inthis part.

726.104 Action by the Office upon applica-tion 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 Treas-urer of the United States; authority tosell such securities; interest thereon.

726.108 Withdrawal of negotiable securities.

726.109 Increase or reduction in the amountof indemnity bond or negotiable securi-ties.

726.110 Filing of agreement and undertak-ing.

726.111 Notice of authorization to self-in-sure.

726.112 Reports required of self-insurer; ex-amination of accounts of self-insurer.

726.113 Disclosure of confidential informa-tion.

726.114 Period of authorization as self-in-surer; 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 obliga-

tions and duties of operator.

REPORTS BY CARRIER

726.208 Report by carrier of issuance of pol-icy 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.


SOURCE: 38 FR 12494, May 11, 1973, unlessotherwise noted.


Subpart A—General

§ 726.1 Statutory insurance require-ments for coal mine operators.

Section 423 of title IV of the FederalCoal Mine Health and Safety Act asamended (hereinafter the Act) requireseach coal mine operator who is operat-ing or has operated a coal mine in aState which is not included in the listpublished by the Secretary (see part 722of this chapter) to secure the paymentof benefits for which he may be found


832

20 CFR Ch. VI (4–1–98 Edition)§ 726.2

liable under section 422 of the Act andthe provisions of this subchapter by ei-ther (a) qualifying as a self-insurer, or(b) by subscribing to and maintainingin force a commercial insurance con-tract (including a policy or contractprocured from a State agency).

§ 726.2 Purpose and scope of this part.(a) This part provides rules directing

and controlling the circumstancesunder which a coal mine operator shallfulfill his insurance obligations underthe Act.

(b) This subpart A sets forth thescope and purpose of this part and gen-erally describes the statutory frame-work within which this part is opera-tive.

(c) Subpart B of this part sets forththe criteria a coal mine operator mustmeet in order to qualify as a self-in-surer.

(d) Subpart C of this part sets forththe rules and regulations of the Sec-retary governing contracts of insur-ance entered into by coal operators andcommercial insurance sources for thepayment of black lung benefits underpart C of the Act.

§ 726.3 Relationship of this part toother parts in this subchapter.

(a) This part 726 implements and ef-fectuates responsibilities for the pay-ment of black lung benefits placedupon coal operators by sections 415 and422 of the Act and the regulations ofthe Secretary in this subchapter, par-ticularly those set forth in part 725 ofthis subchapter. All definitions, usages,procedures, and other rules affectingthe responsibilities of coal operatorsprescribed in parts 715, 720, and 725 ofthis subchapter are hereby made appli-cable, as appropriate, to this part 726.

(b) In the event that an apparent con-flict arises between the interpretationof any provision in this part 726 and theinterpretation of some provision ap-pearing in a different incorporated partof this chapter, the conflicting provi-sions shall be read harmoniously to thefullest extent possible. In the eventthat a harmonious interpretation ofthe provisions is impossible, the provi-sion or provisions of this part shallgovern insofar as the question is onewhich arises out of a dispute over the

responsibilities and obligations of coalmine operators to secure the paymentof black lung benefits as prescribed bythe Act. No provision of this part shallbe operative as to matters falling out-side the purview of this part.

§ 726.4 Who must obtain insurancecoverage.

(a) Section 423 of part C of title IV ofthe Act requires each operator of a coalmine or former operator in any Statewhich does meet the requirements pre-scribed by the Secretary pursuant tosection 411 of part C of title IV of theAct to self-insure or obtain a policy orcontract of insurance to guarantee thepayment of benefits for which such op-erator may be adjudicated liable undersection 422 of the Act. In enacting sec-tions 422 and 423 of the Act Congresshas unambiguously expressed its intentthat coal mine operators bear the costof providing the benefits established bypart C of title IV of the Act. Section 3of the Act defines an ‘‘operator’’ as anyowner, lessee, or other person who op-erates, controls, or supervises a coalmine.

(b) Section 422(i) of the Act clearlyrecognizes that any individual or busi-ness entity who is or was a coal mineoperator may be found liable for thepayment of pneumoconiosis benefitsafter December 31, 1973. Within thisframework it is clear that the Sec-retary has wide latitude for determin-ing which operator shall be liable forthe payment of part C benefits. Com-prehensive standards have been pro-mulgated in subpart D or part 725 ofthis chapter for the purpose of guidingthe Secretary in making such deter-mination. It must be noted that pursu-ant to these standards any parent orsubsidiary corporation, any individualor corporate partner, or partnership,any lessee or lessor of a coal mine, anyjoint venture or participant in a jointventure, any transferee or transferor ofa corporation or other business entity,any former, current, or future operatoror any other form of business entitywhich has had or will have a substan-tial and reasonably direct interest inthe operation of a coal mine may be de-termined liable for the payment ofpneumoconiosis benefits after Decem-ber 31, 1973. The failure of any such


833


business entity to self-insure or obtaina policy or contract of insurance shallin no way relieve such business entityof its obligation to pay pneumoconiosisbenefits in respect of any case in whichsuch business entity’s responsibilityfor such payments has been properlyadjudicated. Any business entity de-scribed in this section shall take appro-priate steps to insure that any liabilityimposed by part C of the Act on suchbusiness entity shall be dischargeable.

§ 726.5 Effective date of insurance cov-erage.

Pursuant to section 422(c) of part C oftitle IV of the Act, no coal mine opera-tor shall be responsible for the pay-ment of any benefits whatsoever forany period prior to January 1, 1974.However, coal mine operators shall beliable as of January 1, 1974, for the pay-ment of benefits in respect of claimswhich were filed under section 415 ofpart B of title IV of the Act after July1, 1973. Section 415(a)(3) requires theSecretary to notify any operator whomay be liable for the payment of bene-fits under part C of title IV beginningon January 1, 1974, of the pendency of asection 415 claim. Section 415(a)(5) de-clares that any operator who has beennotified of the pendency of a section415 claim shall be bound by the deter-mination of the Secretary as to suchoperator’s liability and as to the claim-ant’s entitlement to benefits as if theclaim were filed under part C of titleIV of the Act and section 422 thereofhad been applicable to such operator.Therefore, even though no benefit pay-ments shall be required of an operatorprior to January 1, 1974, the liabilityfor these payments may be finally ad-judicated at any time after July 1, 1973.Neither the failure of an operator toexercise his right to participate in theadjudication of such a claim nor thefailure of an operator to obtain insur-ance coverage in respect of claims filedafter June 30, 1973, but before January1, 1974, shall excuse such operator fromhis liability for the payment of bene-fits to such claimants under part C oftitle IV of the Act.

§ 726.6 The Office of Workmen’s Com-pensation Programs.

The Office of Workmen’s Compensa-tion Programs (hereinafter the Officeor OWCP) is that subdivision of theEmployment Standards Administra-tion of the U.S. Department of Laborwhich has been empowered by the Sec-retary of Labor to carry out his func-tions under section 415 and part C oftitle IV of the Act. As noted through-out this part 726 the Office shall per-form a number of functions with re-spect to the regulation of both the self-insurance and commercial insuranceprograms. All correspondence with orsubmissions to the Office should be ad-dressed as follows:

Division of Coal Mine Workers’ Compensa-tion, Office of Workmen’s CompensationPrograms, Employment Standards Admin-istration, U.S. Department of Labor, Wash-ington, D.C. 20210

§ 726.7 Forms, submission of informa-tion.

Any information required by thispart 726 to be submitted to the Office ofWorkmen’s Compensation Programs orany other office or official of the De-partment of Labor, shall be submittedon such forms or in such manner as theSecretary deems appropriate and hasauthorized from time to time for suchpurposes.

Subpart B—Authorization of Self-Insurers

§ 726.101 Who may be authorized toself-insure.

(a) Pursuant to section 423 of part Cof title IV of the Act, authorization toself-insure against liability incurred bycoal mine operators on account of thetotal disability or death of miners dueto pneumoconiosis may be granted ordenied in the discretion of the Sec-retary. The provisions of this subpartdescribe the minimum requirementsestablished by the Secretary for deter-mining whether any particular coalmine operator shall be authorized as aself-insurer. Any operator who meetsthe standards and qualifications con-tained in this subpart prescribed for


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20 CFR Ch. VI (4–1–98 Edition)§ 726.102

self-insurers shall be required to de-posit security in the form of either anindemnity bond or negotiable securi-ties (at the option of the Office) of akind and in an amount determined bythe Office.

(b) The minimum requirementswhich must be met by any operatorseeking authorization to self-insure areas follows:

(1) Such operator must, at the timeof application, have been in the busi-ness of mining coal for at least the 3consecutive years prior to such appli-cation; and,

(2) Such operator must demonstratethe administrative capacity to fullyservice such claims as may be filedagainst him; and,

(3) Such operator’s average currentassets over the preceding 3 years (incomputing average current assets suchoperator shall not include the amountof any negotiable securities which hemay be required to deposit to securehis obligations under the Act) must ex-ceed current liabilities by the sum of—

(i) The estimated aggregate amountof black lung benefits (including medi-cal benefits) which such operator mayexpect to be required to pay during theensuing year; and,

(ii) The annual premium cost for anyindemnity bond purchased; and

(4) Such operator must obtain an in-demnity bond the face amount ofwhich, or deposit negotiable securitiesthe current value of which, shall be de-termined as follows:

(i) An operator with between 5 and 19employee-miners shall be required topost security in an amount equal to$3,000 times the average number of em-ployee-miners plus $75,000.

(ii) An operator with between 20 and100 employee-miners shall be requiredto post security in the amount of$135,000;

(iii) Thereafter, there shall be an in-crease in the amount of security whichshall be required to be posted of ap-proximately $75,000 per 100 employee-miners in excess of the first 100 em-ployee-miners;

(iv) The amounts of security requiredin this paragraph are the minimum se-curity requirements the Office shallprescribe in respect of any applicationfor authorization to self-insure. Any

factors bearing on a particular applica-tion which the Office deems pertinentshall be considered in fixing theamount of security which shall be re-quired, and may result in higher secu-rity requirements than those enumer-ated in this paragraph.

(v) For purposes of this paragraphthe number of employee-miners shallbe established by determining the max-imum quarterly average number offull-time employee-miners employedby the applicant during the preceding 4calendar quarters; and

(5) No operator with fewer than 5full-time employee-miners shall be per-mitted to self-insure.

(c) No operator who is unable to meetthe requirements of this section shouldapply for authorization to self-insureand no application for self-insuranceshall be approved by the Office untilsuch time as the amount prescribed bythe Office has been secured either byindemnity bond or the deposit of nego-tiable securities as prescribed in thissubpart.

§ 726.102 Application for authority tobecome a self-insurer; how filed; in-formation to be submitted.

(a) How filed. Application for author-ity to become a self-insurer shall be ad-dressed to the Office and be made on aform provided by the Office. Such ap-plication shall be signed by the appli-cant over his typewritten name and ifthe applicant is not an individual, bythe principal officer of the applicantduly authorized to make such applica-tion over his typewritten name and of-ficial designation and shall be sworn toby him. If the applicant is a corpora-tion, the corporate seal shall be af-fixed. The application shall be filedwith the Office in Washington, DC.

(b) Information to be submitted. Eachapplication for authority to self-insureshall contain:

(1) A statement of the employer’spayroll report for each of the preceding3 years;

(2) A statement of the average num-ber of employees engaged in employ-ment within the purview of the Act foreach of the preceding 3 years;

(3) A list of the mine or mines to becovered by any particular self-insur-ance agreement. Each such mine or


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mines listed shall be described by nameand reference shall be made to the Fed-eral Identification Number assignedsuch mine by the Bureau of Mines, U.S.Department of the Interior;

(4) A certified itemized statement ofthe gross and net assets and liabilitiesof the operator for each of the 3 preced-ing years in such manner as prescribedby the Office;

(5) A statement demonstrating theapplicant’s administrative capacity toprovide or procure adequate servicingfor a claim including both medical anddollar claims; and

(6) In addition to the aforementioned,the Office may in its discretion, re-quire the applicant to submit such fur-ther information or such evidence asthe Office may deem necessary to havein order to enable it to give adequateconsideration to such application.

(c) Who may file. An application forauthorization to self-insure may befiled by any parent or subsidiary cor-poration, partner or partnership, partyto a joint venture or joint venture, in-dividual, or other business entitywhich may be determined liable for thepayment of black lung benefits underpart C of title IV of the Act, regardlessof whether such applicant is directlyengaged in the business of mining coal.However, in each case for which au-thorization to self-insure is granted,the agreement and undertaking filedpursuant to § 726.110 and the securitydeposit shall be respectively filed byand deposited in the name of the appli-cant only.

§ 726.103 Application for authority toself-insure; effect of regulationscontained in this part.

As appropriate, each of the regula-tions, interpretations and require-ments contained in this part 726 includ-ing those described in subpart C of thispart shall be binding upon each appli-cant hereunder and the applicant’s con-sent to be bound by all requirements ofthe said regulations shall be deemed tobe included in and a part of the appli-cation, as fully as though writtentherein.

§ 726.104 Action by the Office upon ap-plication of operator.

(a) Upon receipt of a completed appli-cation for authorization to self-insure,the Office shall, after examination ofthe information contained in the appli-cation deny the applicant’s request forauthorization to self-insure or, deter-mine the amount of security whichmust be given by the applicant to guar-antee the payment of benefits and thedischarge of all other obligations whichmay be required of such applicantunder the Act.

(b) The applicant shall thereafter benotified that he may give security inthe amount fixed by the Office (see§ 726.105):

(1) In the form of an indemnity bondwith sureties satisfactory to the Office;or,

(2) By a deposit of negotiable securi-ties with a Federal Reserve Bank asprovided by the regulations in thispart.

(c) Any applicant who cannot meetthe security deposit requirements im-posed by the Office should proceed toobtain a commercial policy or contractof insurance. Any applicant for author-ization to self-insure whose applicationhas been rejected or who believes thatthe security deposit requirements im-posed by the Office are excessive may,in writing, request that the Office re-view its determination. A request forreview should contain such informa-tion as may be necessary to supportthe request that the amount of secu-rity required be reduced.

(d) Upon receipt of any such requestthe Office shall review its previous de-termination in light of any new or ad-ditional information submitted and in-form the applicant whether or not a re-duction in the amount of security ini-tially required is warranted.

§ 726.105 Fixing the amount of secu-rity.

The amount of security to be fixedand required by the Office shall be suchas the Office shall deem to be nec-essary and sufficient to secure the per-formance by the applicant of all obliga-tions imposed upon him as an operatorby the Act. The formula described in


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20 CFR Ch. VI (4–1–98 Edition)§ 726.106

§ 726.101 for determining the amount ofsecurity which shall be required is pre-scribed for the initial year of the blacklung benefits program only. In addi-tion, the formula is not the exclusivecriterion to be used by the Office in de-termining whether or not to authorizean applicant to self-insure. Other fac-tors such as the Office may deem rel-evant to any particular case shall beconsidered. The amount of securitywhich shall be required as computedpursuant to paragraph (b)(3) of § 726.101may be increased or decreased in ensu-ing years when experience or changedconditions so warrant.

§ 726.106 Type of security.

(a) The Office shall determine thetype or types of security which an ap-plicant shall or may procure. (See§ 726.104(b).)

(b) In the event the indemnity bondoption is selected such indemnity bondshall be in such form and contain suchprovisions as the Office may prescribe:Provided, That only corporations mayact as sureties on such indemnitybonds. In each case in which the suretyon any such bond is a surety company,such company must be one approved bythe U.S. Treasury Department underthe laws of the United States and theapplicable rules and regulations gov-erning bonding companies (see Depart-ment of Treasury’s Circular–570).

(c) An applicant for authorization toself-insure authorized to deposit nego-tiable securities to secure his obliga-tions under the Act in the amountfixed by the Office shall deposit any ne-gotiable securities acceptable as secu-rity for the deposit of public moneys ofthe United States under regulationsissued by the Secretary of the Treas-ury. (See 31 CFR 203.7 and 203.8.) Theapproval, valuation, acceptance, andcustody of such securities is herebycommitted to the several Federal Re-serve Banks and the Treasurer of theUnited States.

§ 726.107 Deposits of negotiable securi-ties with Federal Reserve banks orthe Treasurer of the United States;authority to sell such securities; in-terest thereon.

Deposits of securities provided for bythe regulations in this part shall be

made with any Federal Reserve bankor any branch of a Federal Reservebank designated by the Office, or theTreasurer of the United States, andshall be held subject to the order of theOffice with power in the Office, in itsdiscretion in the event of default bythe said self-insurer, to collect the in-terest as it may become due, to sell thesecurities or any of them as may be re-quired to discharge the obligations ofthe self-insurer under the Act and toapply the proceeds to the payment ofany benefits or medical expenses forwhich the self-insurer may be liable.The Office may, however, whenever itdeems it unnecessary to resort to suchsecurities for the payment of benefits,authorize the self-insurer to collect in-terest on the securities deposited byhim.

§ 726.108 Withdrawal of negotiable se-curities.

No withdrawal of negotiable securi-ties deposited by a self-insurer, shall bemade except upon authorization by theOffice. A self-insurer discontinuingbusiness, or discontinuing operationswithin the purview of the Act, or pro-viding security for the payment of ben-efits by commercial insurance underthe provisions of the Act may apply tothe Office for the withdrawal of securi-ties deposited under the regulations inthis part. With such application shallbe filed a sworn statement settingforth:

(a) A list of all outstanding cases inwhich benefits are being paid, with thenames of the miners and other bene-ficiaries, giving a statement of theamounts of benefits paid and the peri-ods for which such benefits have beenpaid; and (b) a similar list of all pend-ing cases in which no benefits have asyet been paid. In such cases withdraw-als may be authorized by the Office ofsuch securities as in the opinion of theOffice may not be necessary to provideadequate security for the payment ofoutstanding and potential liabilities ofsuch self-insurer under the Act.

§ 726.109 Increase or reduction in theamount of indemnity bond or nego-tiable securities.

Whenever in the opinion of the Officethe principal sum of the indemnity


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bond filed or the amount of negotiablesecurities deposited, by a self-insurer isinsufficient to afford adequate securityfor the payment of benefits and medi-cal expenses under the Act, the self-in-surer shall, upon demand by the Office,file such additional indemnity bond ordeposit such additional amount of ne-gotiable securities as the Office mayrequire. At any time upon applicationof a self-insurer, or on the initiative ofthe Office, when in its opinion the factswarrant, the principal sum of an in-demnity bond required to be given orthe amount of negotiable securities re-quired to be deposited may be reduced.A self-insurer seeking such reductionshall furnish such information as theOffice may request relative to his cur-rent affairs, the nature and hazard ofthe work of his employees, the amountof the payroll of his employees engagedin coal mine employment within thepurview of the Act, his financial condi-tion, and such other evidence as maybe deemed material, including a recordof payment of benefits made by him.

§ 726.110 Filing of agreement and un-dertaking.

(a) In addition to the requirementthat adequate security be procured asset forth in this subpart, the applicantfor the authorization to self-insureshall as a condition precedent to re-ceiving authorization to act as a self-insurer, execute and file with the Of-fice an agreement and undertaking in aform prescribed and provided by the Of-fice in which the applicant shall agree:

(1) To pay when due, as required bythe provisions of said Act, all benefitspayable on account of total disabilityor death of any of its employee-minerswithin the purview of the Act; (2) insuch cases to furnish medical, surgical,hospital, and other attendance, treat-ment, and care as required by the pro-visions of the Act; (3) to deposit withthe Office an indemnity bond in theamount which the Office shall fix, or todeposit negotiable securities as pro-vided for by the regulations in thispart in the amount which the Officeshall fix, accordingly as elected in theapplication; (4) to authorize the Officeto sell such negotiable securities so de-posited or any part thereof and from

the proceeds thereof to pay such bene-fits, medical, and other expenses andany accrued penalties imposed by lawas it may find to be due and payable.

(b) At such time when an applicanthas deposited the requisite amount ofnegotiable securities or obtained an in-demnity bond pursuant to § 726.106,such applicant shall send a completedagreement and undertaking togetherwith satisfactory proof that his obliga-tions and liabilities under the Act havebeen secured to the Office in Washing-ton, D.C.

§ 726.111 Notice of authorization toself-insure.

Upon receipt of a completed agree-ment and undertaking and satisfactoryproof that negotiable securities havebeen deposited or that an adequate in-demnity bond has been procured an ap-plicant for authorization to self-insureshall be notified by the Office in writ-ing, that he is authorized to self-insureto meet the obligations imposed uponsuch applicant by section 415 and partC of title IV of the Act.

§ 726.112 Reports required of self-in-surer; examination of accounts ofself-insurer.

(a) Each operator who has been au-thorized to self-insure under this partshall submit to the Office reports con-taining such information as the Officemay from time to time require or pre-scribe.

(b) Whenever it deems it to be nec-essary, the Office may inspect or exam-ine the books of account, records, andother papers of a self-insurer for thepurpose of verifying any financialstatement submitted to the Office bythe self-insurer or verifying any infor-mation furnished to the Office in anyreport required by this section, or anyother section of the regulations in thispart, and such self-insurer shall permitthe Office or its duly authorized rep-resentative to make such an inspectionor examination as the Office shall re-quire. In lieu of this requirement theOffice may in its discretion accept anadequate report of a certified public ac-countant.


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20 CFR Ch. VI (4–1–98 Edition)§ 726.113

(c) Failure to submit or make avail-able any report or information re-quested by the Office from an author-ized self-insurer pursuant to this sec-tion may, in appropriate circumstancesresult in a revocation of the authoriza-tion to self-insure.

§ 726.113 Disclosure of confidential in-formation.

Any financial information or records,or other information relating to thebusiness of an authorized self-insureror applicant for the authorization ofself-insurance obtained by the Officeshall be exempt from public disclosureto the extent provided in 5 U.S.C. 552(b)and the applicable regulations of theDepartment of Labor promulgatedthereunder. (See 29 CFR part 70.)

§ 726.114 Period of authorization asself-insurer; reauthorization.

(a) No initial authorization as a self-insurer shall be granted for a period inexcess of 18 months. A self-insurer whohas made an adequate deposit of nego-tiable securities as required by the Of-fice under the regulations in this partwill be reauthorized for the ensuing fis-cal year without additional security ifthe Office finds that his experience as aself-insurer warrants such action. If itis determined that such self-insurer’sexperience indicates a need for the de-posit of additional security, no reau-thorization shall be issued for the ensu-ing fiscal year until such time as theOffice receives satisfactory proof thatthe requisite amount of additional se-curities have been deposited. A self-in-surer who currently has on file an in-demnity bond, will receive from the Of-fice each year a bond form for execu-tion in contemplation of reauthoriza-tion, and the submission of such bondduly executed in the amount indicatedby the Office will be deemed and treat-ed as such self-insurer’s application forreauthorization for the ensuing Federalfiscal year.

(b) In each case for which there is anapproved change in the amount of ne-gotiable securities required or the faceamount of an indemnity bond obtained,a new agreement and undertaking shallbe executed.

§ 726.115 Revocation of authorizationto self-insure.

The Office may for good cause shownsuspend or revoke the authorization ofany self-insurer. Failure by a self-in-surer to comply with any provision orrequirement of law or of the regula-tions in this part, or with any lawfulorder or communication of the Office,or the failure or insolvency of the sur-ety on his indemnity bond, or impair-ment of financial responsibility of suchself-insurer, may be deemed good causefor such suspension or revocation.

Subpart C—Insurance Contracts§ 726.201 Insurance contracts—gen-

erally.Each operator of a coal mine who has

not obtained authorization as a self-in-surer shall purchase a policy or enterinto a contract with a commercial in-surance carrier or State agency. Pursu-ant to authority contained in sections422(a) and 423 (b) and (c) of part C oftitle IV of the Act, this subpart de-scribes a number of provisions whichare required to be incorporated in apolicy or contract of insurance ob-tained by a coal mine operator for thepurpose of meeting the responsibilityimposed upon such operator by the Actin respect of the total disability ordeath of miners due to pneumoconiosis.

§ 726.202 Who may underwrite an op-erator’s liability.

Each coal mine operator who is notauthorized to self-insure shall insureand keep insured the payment of bene-fits as required by the Act with anystock company or mutual company orassociation, or with any other person,or fund, including any State fund whilesuch company, association, person, orfund is authorized under the law of anyState to insure workmen’s compensa-tion.

§ 726.203 Federal Coal Mine Healthand Safety Act endorsement.

(a) The following form of endorse-ment shall be attached and applicableto the standard workmen’s compensa-tion and employer’s liability policyprepared by the National Council onCompensation Insurance affording cov-erage under the Federal Coal Mine


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Health and Safety Act of 1969, asamended:

It is agreed that: (1) With respect to oper-ations in a State designated in item 3 of thedeclarations, the unqualified term ‘‘work-men’s compensation law’’ includes part C oftitle IV of the Federal Coal Mine Health andSafety Act of 1969, 30 U.S.C. section 931–936,and any laws amendatory thereto, or supple-mentary thereto, which may be or becomeeffective while this policy is in force, anddefinition (a) of Insuring Agreement III isamended accordingly; (2) with respect tosuch insurance as is afforded by this endorse-ment, (a) the States, if any, named below,shall be deemed to be designated in item 3 ofthe declaration; (b) Insuring Agreement IV(2)is amended to read ‘‘by disease caused or ag-gravated by exposure of which the last day ofthe last exposure, in the employment of theinsured, to conditions causing the disease oc-curs during the policy period, or occurredprior to (effective date) and claim based onsuch disease is first filed against the insuredduring the policy period.’’

(b) The term ‘‘effective date’’ as usedin paragraph (a) of this section shall beconstrued to mean the effective date ofthe first policy or contract of insur-ance procured by an operator for pur-poses of meeting the obligations im-posed on such operator by section 423of part C of title IV of the Act.

(c) The Act contains a number of pro-visions and imposes a number of re-quirements on operators which differ invarying degrees from traditional work-men’s compensation concepts. To avoidunnecessary administrative delays andexpense which might be occasioned bythe drafting of an entirely new stand-ard workmen’s compensation policyspecially tailored to the Act, the Officehas determined that the existing stand-ard workmen’s compensation policysubject to the endorsement provisionscontained in paragraph (a) of this sec-tion shall be acceptable for purposes ofwriting commercial insurance coverageunder the Act. However, to avoid unduedisputes over the meaning of certainpolicy provisions and in accordancewith the authority contained in section423(b)(3) of the Act, the Office has de-termined that the following require-ments shall be applicable to all com-mercial insurance policies obtained byan operator for the purpose of insuringany liability incurred pursuant to theAct:

(1) Operator liability. (i) Section 415and part C of title IV of the Act pro-vide coverage for total disability ordeath due to pneumoconiosis to allclaimants who meet the eligibility re-quirements imposed by the Act. Sec-tion 422 of the Act and the regulationsduly promulgated thereunder (part 725of this chapter) set forth the conditionsunder which a coal mine operator maybe adjudicated liable for the paymentof benefits to an eligible claimant forany period subsequent to December 31,1973.

(ii) Section 422(c) of the Act pre-scribes that except as provided in 422(i)(see paragraph (c)(2) of this section) anoperator may be adjudicated liable forthe payment of benefits in any case ifthe total disability or death due topneumoconiosis upon which the claimis predicated arose at least in part outof employment in a mine in any periodduring which it was operated by suchoperator. The Act does not require thatsuch employment which contributed toor caused the total disability or deathdue to pneumoconiosis occur subse-quent to any particular date in time.The Secretary in establishing a for-mula for determining the operator lia-ble for the payment of benefits (seesubpart D of part 725 of this chapter) inrespect of any particular claim, musttherefore, within the framework andintent of title IV of the Act find in ap-propriate cases that an operator is lia-ble for the payment of benefits forsome period after December 31, 1973,even though the employment uponwhich an operator’s liability is basedoccurred prior to July 1, 1973, or priorto the effective date of the Act or theeffective date of any amendmentsthereto, or prior to the effective date ofany policy or contract of insurance ob-tained by such operator. Paragraph (a)of this section shall be construed to in-corporate these requirements in anypolicy or contract of insurance ob-tained by an operator to meet the obli-gations imposed on such operator bysection 423 of the Act.

(2) Successor liability. Section 422(i) ofpart C of title IV of the Act requiresthat a coal mine operator who afterDecember 30, 1969, acquired his mine orsubstantially all of the assets thereoffrom a person who was an operator of


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20 CFR Ch. VI (4–1–98 Edition)§ 726.204

such mine on or after December 30,1969, shall be liable for and shall securethe payment of benefits which wouldhave been payable by the prior opera-tor with respect to miners previouslyemployed in such mine if the acquisi-tion had not occurred and the prior op-erator had continued to operate suchmine. In the case of an operator who isdetermined liable for the payment ofbenefits under section 422(i) of the Actand part 725 of this subchapter, such li-ability shall accrue to such operatorregardless of the fact that the miner onwhose total disability or death theclaim is predicated was never employedby such operator in any capacity. Para-graph (a) of this section shall be con-strued to incorporate this requirementin any policy or contract of insuranceobtained by an operator to meet theobligations imposed on such operatorby section 423 of the Act.

(3) Medical eligibility. Pursuant to sec-tion 422(h) of part C of title IV of theAct and the regulations describedtherein (see subpart D of part 410 ofthis title) benefits shall be paid to eli-gible claimants on account of total dis-ability or death due to pneumoconiosisand in cases where the miner on whosedeath a claim is predicated was totallydisabled by pneumoconiosis at the timeof his death regardless of the cause ofsuch death. Paragraph (a) of this sec-tion shall be construed to incorporatethese requirements in any policy orcontract of insurance obtained by anoperator to meet the obligations im-posed on such operator by section 423of the Act.

(4) Payment of benefits, rates. Section422(c) of the Act by incorporating sec-tion 412(a) of the Act requires the pay-ment of benefits at a rate equal to 50per centum of the minimum monthlypayment to which a Federal employeein grade GS–2, who is totally disabledis entitled at the time of paymentunder chapter 81 of title 5, UnitedStates Code. These benefits are aug-mented on account of eligible depend-ents as appropriate (see section 412(a)of part B of title IV of the Act). Sincethe dollar amount of benefits payableto any beneficiary is required to becomputed at the time of payment suchamounts may be expected to increasefrom time to time as changes in the

GS–2 grade are enacted into law. Para-graph (a) of this section shall be con-strued to incorporate in any policy orcontract of insurance obtained by anoperator to meet the obligations im-posed on such operator by section 423of the Act, the requirement that thepayment of benefits to eligible bene-ficiaries shall be made in such dollaramounts as are prescribed by section412(a) of the Act computed at the timeof payment.

(5) Compromise and waiver of benefits.Section 422(a) of part C of title IV ofthe Act by incorporating sections 15(b)and 16 of the Longshoremen’s and Har-bor Workers’ Compensation Act (33U.S.C. 915(b) and 916) prohibits thecompromise and/or waiver of claims forbenefits filed or benefits payable undersection 415 and part C of title IV of theAct. Paragraph (a) of this section shallbe construed to incorporate these pro-hibitions in any policy or contract ofinsurance obtained by an operator tomeet the obligations imposed on suchoperator by section 423 of the Act.

(6) Additional requirements. In addi-tion to the highlighted requirementsdescribed in paragraph (c)(1) through(5) of this section, paragraph (a) of thissection shall, to the fullest extent pos-sible, be construed to bring any policyor contract of insurance entered intoby an operator for the purpose of insur-ing such operator’s liability under partC of title IV of the Act into conformitywith the legal requirements placedupon such operator by section 415 andpart C of title IV of the Act and parts720 and 725 of this subchapter.

(d) Nothing in this section shall re-lieve any operator or carrier of theduty to comply with any State work-men’s compensation law, except insofaras such State law is in conflict withthe provisions of this section.

§ 726.204 Statutory policy provisions.Pursuant to section 423(b) of part C

of title IV of the Act each policy orcontract of insurance obtained to com-ply with the requirements of section423(a) of the Act must contain or shallbe construed to contain—

(a) A provision to pay benefits re-quired under section 422 of the Act,notwithstanding the provisions of theState workmen’s compensation law


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which may provide for lesser payments;and,

(b) A provision that insolvency orbankruptcy of the operator or dis-charge therein (or both) shall not re-lieve the carrier from liability for suchpayments.

§ 726.205 Other forms of endorsementand policies.

Forms of endorsement or policiesother than that described in § 726.203may be entered into by operators to in-sure their liability under the Act. How-ever, any form of endorsement or pol-icy which materially alters or at-tempts to materially alter an opera-tor’s liability for the payment of anybenefits under the Act shall be deemedinsufficient to discharge such opera-tor’s duties and responsibilities as pre-scribed in part C of title IV of the Act.In any event, the failure of an operatorto obtain an adequate policy or con-tract of insurance shall not affect suchoperator’s liability for the payment ofany benefits for which he is determinedliable.

§ 726.206 Terms of policies.A policy or contract of insurance

shall be issued for the term of 1 yearfrom the date that it becomes effec-tive, but if such insurance be not need-ed except for a particular contract oroperation, the term of the policy maybe limited to the period of such con-tract or operation.

§ 726.207 Discharge by the carrier ofobligations and duties of operator.

Every obligation and duty in respectof payment of benefits, the providing ofmedical and other treatment and care,the payment or furnishing of any otherbenefit required by the Act and in re-spect of the carrying out of the admin-istrative procedure required or imposedby the Act or the regulations in thispart or 20 CFR part 725 upon an opera-tor shall be discharged and carried outby the carrier as appropriate. Notice toor knowledge of an operator of the oc-currence of total disability or deathdue to pneumoconiosis shall be noticeto or knowledge of such carrier. Juris-diction of the operator by a district di-rector, administrative law judge, theOffice, or appropriate appellate author-

ity under the Act shall be jurisdictionof such carrier. Any requirement underany benefits order, finding, or decisionshall be binding upon such carrier inthe same manner and to the same ex-tent as upon the operator.

REPORTS BY CARRIER

§ 726.208 Report by carrier of issuanceof policy or endorsement.

Each carrier shall report to the Of-fice each policy and endorsementissued, cancelled, or renewed by it toan operator. The report shall be madein such manner and on such form asthe Office may require.


(Pub. L. No. 96–511)


§ 726.209 Report; by whom sent.

The report of issuance, cancellation,or renewal of a policy and endorsementprovided for in § 726.208 shall be sent bythe home office of the carrier, exceptthat any carrier may authorize itsagency or agencies to make such re-ports to the Office.


(Pub. L. No. 96–511)


§ 726.210 Agreement to be bound by re-port.

Every carrier seeking to write insur-ance under the provisions of this Actshall be deemed to have agreed thatthe acceptance by the Office of a reportof the issuance or renewal of a policy ofinsurance, as provided for by § 726.208shall bind the carrier to full liabilityfor the obligations under this Act ofthe operator named in said report. Itshall be no defense to this agreementthat the carrier failed or delayed toissue, cancel, or renew the policy tothe operator covered by this report.



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20 CFR Ch. VI (4–1–98 Edition)§ 726.211

(Pub. L. No. 96–511)


§ 726.211 Name of one employer onlyshall be given in each report.

A separate report of the issuance orrenewal of a policy and endorsement,provided for by § 726.208, shall be madefor each operator covered by a policy.If a policy is issued or renewed insuringmore than one operator, a separate re-port for each operator so covered shallbe sent to the Office with the name ofonly one operator on each such report.


(Pub. L. No. 96–511)


§ 726.212 Notice of cancellation.Cancellation of a contract or policy

of insurance issued under authority ofthe Act shall not become effective oth-erwise than as provided by 33 U.S.C.936(b); and notice of a proposed can-cellation shall be given to the Officeand to the operator in accordance withthe provisions of 33 U.S.C. 912(c), 30days before such cancellation is in-tended to be effective (see sec. 422(a) ofpart C of title IV of the Act).


(Pub. L. No. 96–511)


§ 726.213 Reports by carriers concern-ing the payment of benefits.

Pursuant to 33 U.S.C. 914(c) as incor-porated by section 422(a) of part C oftitle IV of the Act and § 726.207 eachcarrier issuing a policy or contract ofinsurance under the Act shall uponmaking the first payment of benefitsand upon the suspension of any pay-ment in any case, immediately notifythe Office in accordance with a formprescribed by the Office that paymentof benefit has begun or has been sus-pended as the case may be. In addition,each such carrier shall at the requestof the Office submit to the Office suchadditional information concerning

policies or contracts of insuranceissued to guarantee the payment ofbenefits under the Act and any benefitspaid thereunder, as the Office mayfrom time to time require to carry outits responsibilities under the Act.


(Pub. L. No. 96–511)


PART 727—REVIEW OF PENDINGAND DENIED CLAIMS UNDER THEBLACK LUNG BENEFITS REFORMACT OF 1977

Subpart A—General

Sec.727.1 Statutory provisions, purpose of this

part.727.2 Applicability and content of this part.727.3 Definitions, use of terms.727.4 Applicability of other parts in this

subchapter.

Subpart B—Initial Review of Pending andDenied Claims

727.101 Who is entitled to review.727.102 ‘‘Pending’’ and ‘‘denied’’ claim de-

fined.727.103 Duplicate claims.727.104 Review by the Social Security Ad-

ministration.727.105 Action by the Office, Social Security

approval.727.106 Action by the Office, insufficient

evidence for Social Security approval.727.107 Action by the Office, Social Security

referral without prior review.727.108 Action by the Office, Department of

Labor pending or denied claim.727.109 Hearings and appeals, parties.

Subpart C—Criteria for DeterminingEligibility for Benefits

727.200 Basis for criteria.727.201 Persons entitled to benefits, depend-

ents.727.202 Definition of pneumoconiosis.727.203 Interim presumption.727.204 Presumption of entitlement applica-

ble to certain death claims.727.205 Effect of current coal mine employ-

ment or coal mine employment at thetime of death.

727.206 Quality standards applicable to evi-dence.


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Subpart D—Payment of Benefits/Liability

727.300 Conditions and duration of eligi-bility.

727.301 Amounts payable, other paymentprovisions.

727.302 Date from which benefits are pay-able after review and approval.

727.303 Claims filed under section 415 of theact.

727.304 Liability for benefit payments.

Subpart E—Special Review Provisions Re-lating to Claims Pending Before anAdministrative Law Judge or the Bene-fits Review Board

727.401 General.727.402 Claims pending in the Office of Ad-

ministrative Law Judges.727.403 Claims pending before the Benefits

Review Board.727.404 Claims pending in a U.S. Court of

Appeals.727.405 Expedited review of claims.


SOURCE: 43 FR 36819, Aug. 18, 1978, unlessotherwise noted.


Subpart A—General§ 727.1 Statutory provisions, purpose

of this part.(a) Under title IV of the Federal Coal

Mine Health and Safety Act of 1969, asamended by the Black Lung BenefitsAct of 1972, benefits were provided tocoal miners and certain survivors ofcoal miners on account of the miners’total disability or death due to pneu-moconiosis. Part B of title IV of theact as amended provided that allclaims for benefits filed between De-cember 30, 1969, and June 30, 1973,would be filed with, processed by, andpaid from Federal funds by the Sec-retary of Health, Education, and Wel-fare, through the Social Security Ad-ministration. The survivor of a minerwas permitted to file a claim with theSecretary of Health, Education, andWelfare under part B until January 1,1974, or within 6 months of the miner’sdeath, if death occurred before January1, 1974, or in the case of a part B bene-ficiary, within 6 months of the bene-

ficiary’s death. Section 415 of part B oftitle IV of the act provides that a claimfiled by a miner between July 1 and De-cember 31, 1973, would be filed with andprocessed by the Secretary of Laborand paid, if appropriate, by the Sec-retary of Labor from Federal funds forall periods of eligibility between July 1and December 31, 1973. For periods ofeligibility after December 31, 1973, anapproved section 415 claim was to bepaid by a coal mine operator found lia-ble pursuant to the act or the Sec-retary of Labor as appropriate. A claimfiled after December 31, 1973, was to befiled under an approved State workers’compensation law or, if no such lawwas available in an appropriate State,the claim was to be filed with the Sec-retary of Labor under part C of title IVof the Act. Claims were to be adju-dicated under certain provisions of theLongshoremen’s and Harbor Workers’Compensation Act, as amended, 33U.S.C. 901 et seq., and paid by a coalmine operator found liable pursuant tothe act. If no such operator could beidentified benefits were to be paid bythe Secretary of Labor from Federalfunds.

(b) The Black Lung Benefits RevenueAct of 1977 and the Black Lung Bene-fits Reform Act of 1977 significantlyamend the provisions of title IV of theact to, among other things, establishthe black lung disability trust fund(the fund) for the payment of all claimspredicated upon coal mine employmentwhich terminate prior to January 1,1970, and for other claims for which nooperator liability can be established.The fund is financed by individual coalmine operators. Other provisions of theact as amended modify the evidentiaryrequirements necessary to establish en-titlement to benefits, eliminate certainrestrictions on the filing of claims, es-tablish penalties to be applied if a coaloperator fails to meet its obligationsunder the act, and make technical, cor-recting, and other administrative orprocedural and substantive changes.

(c) Section 435 of the act as amendeddirects the Secretary of Health, Edu-cation, and Welfare and the Secretaryof Labor to undertake a review of allpreviously denied and pending claimsin light of the amendments made by


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20 CFR Ch. VI (4–1–98 Edition)§ 727.2

such act. The Secretary of Health, Edu-cation, and Welfare is directed to per-form this review at the request of theclaimant on all denied and pendingclaims filed under part B of title IV ofthe Act, exclusive of those claims filedunder section 415. The Secretary ofLabor is directed to perform this re-view automatically on all claims filedunder section 415 and part C of title IVof the Act, which were denied or pend-ing as of the effective date of the BlackLung Benefits Reform Act of 1977, andin addition is required to review cer-tain claims originally filed with theSecretary of Health, Education, andWelfare.

(d) The new section 435 contains pro-visions setting forth the scope of theclaims review, the procedures to be fol-lowed and the consequences which ac-crue depending upon the results of anyparticular review. It is the purpose ofthis part to set forth and implementthe provisions of section 435 as thoseprovisions apply to the Secretary ofLabor, and inform all interested par-ties of the manner in which a right toreview will be extended with respect toall denied and pending claims for blacklung benefits under the act by the Sec-retary of Labor.

§ 727.2 Applicability and content ofthis part.

(a) This part is designed to apply to,and set forth the role of, the Secretaryof Labor in carrying out the provisionsof section 435 of the act. The action tobe taken and the procedure to be fol-lowed by the Secretary of Health, Edu-cation, and Welfare and the Social Se-curity Administration under section435 is detailed elsewhere. This partwill, however, describe what will bedone by the Secretary of Health, Edu-cation, and Welfare and the Social Se-curity Administration in general termsand will detail the responsibilities as-signed to the Secretary of Labor withrespect to a claim reviewed by the Sec-retary of Health, Education, and Wel-fare.

(b) This subpart A describes gen-erally the statutory framework estab-lished to facilitate the review of allpending and denied black lung claims,the applicability and content of thispart and other relevant parts contained

in this title 20 of the Code of FederalRegulations, and sets forth applicabledefinitions and usages.

(c) Subpart B of this part sets forththe procedures to be followed in the re-view of various types of claims subjectto review under this part.

(d) Subpart C of this part containsthe criteria to be applied in determin-ing a claimant’s eligibility for benefitsunder this part. Such criteria shall alsobe applicable to all claims for medicalservices filed under section 11 of theBlack Lung Benefits Reform Act of 1977(see § 725.308(b) of this subchapter), andshall also be applicable to all otherclaims filed under part 725 of this sub-part until such time as the Secretarypromulgates new criteria for determin-ing total disability or death due topneumoconiosis in accordance withsection 402(f)(1) of the act.

(e) Subpart D of this part containsprovisions relating to the liability for,and conditions governing, the paymentof benefits under this part.

(f) Subpart E of this part sets forthspecial provisions relating to the proc-essing of claims subject to reviewunder this part which are within thejurisdiction of an admininstrative lawjudge or the Benefits Review Board.

§ 727.3 Definitions, use of terms.Except as is otherwise provided by

this part, the definitions and usages ofterms contained in subpart A of part725 of this title, as amended from timeto time, shall be applicable to thispart.

§ 727.4 Applicability of other parts inthis subchapter.

(a) Part 725. Part 725 of this sub-chapter, which sets forth: (1) The pro-cedure for filing a claim for black lungbenefits under part C of title IV of theact, (2) the procedure to be followed inthe adjudication of claims so filed, (3)standards for determining whether aparticular individual is a miner, or aqualified dependent or survivor of aminer, (4) the criteria to be applied indetermining the liability of a coal op-erator or the fund for the payment ofapproved claims so filed, and (5) themanner in which the payment of bene-fits shall be made with respect to partC claims, shall not be applicable to the


845


processing, adjudication, or payment ofclaims under this part unless applica-bility is specifically provided by part725 or this part.

(b) Part 718. Part 718 of this sub-chapter, which contains the criteriaand standards to be applied in deter-mining whether a miner is totally dis-abled due to pneumoconiosis or wheth-er a miner died due to or while totallyor partially disabled by pneumo-coniosis, shall not be applicable to thedetermination of claims under thispart unless applicability is provided bypart 718 or this part. Until such time aspart 718 of this subchapter is revised inaccordance with the 1977 amendmentsto the act, the provisions of subpart Dof part 410 of this title which are notinconsistent with the 1977 amendmentsto the act, shall be applicable to theadjudication of claims under this part,unless otherwise provided by this part(see subpart C of this part).

(c) Parts 715, 717, and 720. Parts 715,717, and 720 of this subchapter, whichparts established the procedures for thefiling, processing, and payment ofclaims filed under section 415 of theact, are repealed and pertinent provi-sions of those parts which retain vital-ity are incorporated within part 725 ofthis subchapter as amended.

(d) Part 726. Part 726 of this sub-chapter, which contains provisions set-ting forth a coal operator’s obligationsto insure or self-insure its liability forthe payment of benefits to certain eli-gible claimants, is applicable to thispart insofar as it bears upon the re-sponsibility of a coal operator to se-cure the payment of benefits to certainclaimants who may be determined eli-gible for benefits under this part.

Subpart B—Initial Review ofPending and Denied Claims

§ 727.101 Who is entitled to review.(a) By the Secretary of HEW. Any per-

son who filed a claim for benefits underpart B of title IV of the Act, excludingminers who filed under section 415 ofthe act between July 1 and December31, 1973, and whose claim was eitherpending or had been denied as of March1, 1978 (see § 727.102), may upon notifica-tion by the Secretary of Health, Edu-cation, and Welfare, elect to have the

claim reviewed by the Secretary ofHealth, Education, and Welfare.

(b) By the Secretary of Labor. (1) Anyperson who elects review by the SocialSecurity Administration under para-graph (a) of this section and whoseclaim cannot be approved after such re-view shall have the claim reviewed bythe Secretary of Labor.

(2) Any person who is eligible to havehis or her claim reviewed under para-graph (a) of this section may elect tohave the claim referred directly to theSecretary of Labor for review.

(3) Any person who has filed a claimfor benefits under section 415 or part Cof title IV of the Act and whose claimwas pending or had been denied (see§ 727.102) on or before March 1, 1978,shall have the claim automatically re-viewed by the Secretary of Labor. (Butsee § 727.103.)

(4) Any claimant whose claim is sub-ject to review by the Secretary ofLabor under this paragraph shall havethe right to submit additional evidenceto the Secretary of Labor in support ofsuch claim.

§ 727.102 ‘‘Pending’’ and ‘‘denied’’claim defined.

(a) Applicability. This section definesthe terms ‘‘pending’’ and ‘‘denied’’claims for purposes of this part only,and the following definitions shall beapplicable only to claims filed with theSecretary of Labor under section 415and part C of title IV of the Act.

(b) Denied claim defined. For the pur-poses of this part, a claim filed withthe Secretary of Labor shall be consid-ered a denied claim if:

(1) The claim was filed before March1, 1978; and

(2) The claimant’s entitlement tobenefits has been denied for any reasonby a district director in the Office ofWorkers’ Compensation Programs, U.S.Department of Labor, an administra-tive law judge assigned to determineblack lung claims by the Secretary ofLabor, the Benefits Review Board inthe U.S. Department of Labor, or anappropriate U.S. court of appeals; and

(3) No further proceedings before adistrict director, administrative lawjudge, the Benefits Review Board, or aU.S. court of appeals are pending; and


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20 CFR Ch. VI (4–1–98 Edition)§ 727.103

(4) The time has expired to seek fur-ther consideration of such denial; or

(5) The claim has been declared aban-doned by a district director or adminis-trative law judge (see § 725.409 of thissubchapter which replaces 38 FR 26059).

(c) Pending claim defined. For the pur-poses of this part and except as pro-vided in §§ 727.402 and 727.403, a claimfiled with the Secretary of Labor shallbe considered a pending claim if:

(1) The claim was filed before March1, 1978; and

(2) The claim is before a district di-rector, administrative law judge, theBoard, or a U.S. court of appeals forconsideration; or

(3) The time permitted to seek fur-ther consideration of the claim has notexpired.

(d) Withdrawn claims. A claim for ben-efits which has been previously with-drawn at the request of the claimant(see § 725.306 of this subchapter) shallnot be considered a pending or deniedclaim for purposes of this part. Anyperson who has voluntarily withdrawnhis or her claim from considerationmay file a new claim for benefits underpart 725 of this subchapter.

§ 727.103 Duplicate claims.(a) A person who filed a claim for

benefits with the Social Security Ad-ministration and whose claim has beenapproved by that agency and who hasalso filed a claim with the Secretary ofLabor which was pending or had beendenied as of March 1, 1978, shall be enti-tled to a review of such claim underthis part.

(b) A person who has filed a claimwith the Social Security Administra-tion which was pending or had been de-nied by that agency as of March 1, 1978,and who has also filed a claim with theSecretary of Labor that has been ap-proved, shall be entitled to elect reviewof the pending or denied claim by theSocial Security Administration or bythe Department of Labor subject to thelimitation contained in paragraph (e)of this section.

(c) A person who has filed a claimboth with the Social Security Adminis-tration and the Department of Laborand whose claims were either pendingwith or denied by both agencies as ofMarch 1, 1978, shall have the claim re-

viewed by the Social Security Adminis-tration if such review is requested bythe claimant. If the claim is not ap-proved by the Social Security Adminis-tration it shall be forwarded to theSecretary of Labor for further reviewas provided in § 727.106. During thependency of review proceedings by theSocial Security Administration, if any,no action shall be taken by the Sec-retary of Labor with respect to theclaim which is pending or had been de-nied by the Secretary of Labor. If theclaimant does not respond to notifica-tion of his or her right to review by theSocial Security Administration within6 months of such notice (see § 727.104),unless the period is enlarged for goodcause shown, the Secretary of Laborshall proceed under this part to com-plete processing of the claim originallyfiled with the Secretary of Labor. Ifthe claimant, upon notification of hisor her right to review by the Social Se-curity Administration (see § 727.104) re-quests that the claim originally filedwith the Administration be forwardedto the Department of Labor for review,or if more than one claim has beenfiled with the Secretary of Labor bythe same claimant, such claims shallbe merged and processed with the firstclaim filed with the Department ofLabor.

(d) A person may exercise the right ofreview provided in paragraph (c) of thissection at the same time such person ispursuing an appeal of a previously de-nied part B claim under the law as itexisted prior to March 1, 1978. If thepart B claim is ultimately approved asa result of the appeal, the claimantmust immediately notify the Secretaryof Labor and, where appropriate, thecoal mine operator, and all duplicatepayments made under part C shall beconsidered an overpayment and ar-rangements shall be made to insure therepayment of such overpayments tothe fund or an operator as appropriate.

(e) In the case of a claimant who hasfiled one or more claims with both theSocial Security Administration andthe Department of Labor, under no cir-cumstances are duplicate benefits pay-able for concurrent periods of eligi-bility.


847


§ 727.104 Review by the Social Secu-rity Administration.

(a) Notification. The Social SecurityAdministration will notify each claim-ant who has filed a claim for benefitsunder part B of title IV of the Act, ex-cluding miners who filed under section415 of the Act, and whose claim was ei-ther pending or had been denied on orbefore March 1, 1978, that upon the re-quest of the claimant such claim shallbe either:

(1) Reviewed by the Social SecurityAdministration on the basis of the evi-dence contained in the claimant’s file,in accordance with the amendmentsmade by the Black Lung Benefits Re-form Act of 1977; or,

(2) Referred by the Social SecurityAdministration to the Office of Work-ers’ Compensation Programs in the De-partment of Labor for review based onthe evidence contained in the claim-ant’s file and any additional evidencethe claimant seeks to submit, in ac-cordance with the amendments madeby the Black Lung Benefits Reform Actof 1977.

(b) Response to notification. Upon re-ceipt of a claimant’s response or a re-sponse on behalf of a claimant to thenotice required by paragraph (a) of thissection the Social Security Adminis-tration will undertake to review theclaim or refer the claimant’s file to theOffice for processing under § 727.107. Ifthere is no response to notificationsent in accordance with paragraph (a)of this section within 6 months fromthe date on which notice is sent, unlessthe period is enlarged for good causeshown, the claimant shall be consid-ered to have waived the right to reviewby the Social Security Administration.The date on which notice is sent andthe date on which a claimant’s re-sponse is received shall be noted on anappropriate form by the Social Secu-rity Administration.

(c) Change of election. A Part B claim-ant who has elected review by the Sec-retary of Labor may in writing revokesuch election and elect review by theSocial Security Administration at anytime before being notified of the dis-trict director’s initial findings on theclaim (§ 725.410 of this subchapter). Ifsuch a revocation is made, the districtdirector shall return the claimant’s file

to the Social Security Administrationfor appropriate processing. All docu-ments received by the district director,except the documents changing theclaimant’s election, shall be deletedfrom the claimant’s file before it is re-turned to the Social Security Adminis-tration.

(d) Social Security Administration re-view procedures. Where the Social Secu-rity Administration determines thatthe claimant is eligible, the Adminis-tration will forward the claim file to-gether with a copy of such determina-tion to the Office for processing andpayment in accordance with § 727.105and shall so notify the claimant. Whereit is determined that the claim cannotbe approved, the Social Security Ad-ministration will transfer the claim-ant’s file to the Office for further re-view in accordance with § 727.106, andshall so notify the claimant.

§ 727.105 Action by the Office, SocialSecurity approval.

(a)(1) Where the Social Security Ad-ministration determines that theclaimant is eligible for benefits uponreview under § 727.104(c), the claimant’sfile and certification of approval forpayment of benefits will be forwardedto the Department of Labor. Upon re-ceipt of the file and certification, theOffice shall immediately authorize thepayment of all benefits due to theclaimant from the fund, in accordancewith § 725.522 of this subchapter. Suchpayments shall commence within notmore than 30 days. Payments shall in-clude all past due benefits, augmenta-tion for dependents and medical ex-penses to the extent supported by in-formation in the file.

(2) After authorizing payment, thedistrict director shall commence ver-ification of the information in the fileon which authorization of benefit pay-ments was based. The district directorshall request current information fromthe claimant pertaining to any matteraffecting the amount of benefits pay-able or any additional informationwhich may be necessary to establish amore detailed and complete history ofthe miner’s employment. After receiptof such information, the district direc-tor shall determine the amount of ben-efits actually payable to the claimant


848

20 CFR Ch. VI (4–1–98 Edition)§ 727.106

and shall, if necessary, increase, de-crease or terminate benefit paymentsas appropriate in accordance with sub-part G of part 725 of this subchapter.The district director shall then issue aproposed decision and order in accord-ance with the procedure set forth in§§ 725.418 and 725.419 of this subchapter,except as provided in paragraph (b)(1)of this section. If the information re-ceived establishes that there has beenan underpayment or overpayment, ben-efit payments shall be corrected retro-active to January 1, 1974.

(3) If the information requested is notsupplied to the district director within60 days following such request, unlessthe period is enlarged for good causeshown, the district director shall issuean order to show cause why benefitpayments should not be suspended andall benefits previously paid should notbe declared an overpayment (see§ 725.540 of this subchapter). If theclaimant submits a satisfactory re-sponse to such order, and within a rea-sonable time submits sufficient evi-dence to allow the district director todetermine the actual amount of bene-fits payable, the district director shallissue a proposed decision and orderawarding benefits in accordance with§§ 725.418 and 725.419 of this subchapterexcept as provided in paragraph (b)(1)of this section. If there is no satisfac-tory response to the district director’sorder to show cause in the time allot-ted, the district director may issue aproposed decision and order in accord-ance with §§ 725.418 and 725.419 of thissubchapter or proceed in accordancewith § 725.409 of this subchapter. Bene-fit payments shall not be terminatedand no overpayment shall be declaredon account of an unrepresented claim-ant’s failure to respond to a show causeorder until the district director has at-tempted to contact the claimant per-sonally or by telephone. In the case ofan unrepresented claimant, a responseto a show cause order may be givenorally, in person or by telephone, ex-cept that such a response shall not ex-cuse the claimant from submittingnecessary information in writing.

(b) (1) If the district director deter-mines that there is a coal mine em-ployer which may be liable for the pay-ment of benefits to the claimant, the

district director shall identify and no-tify such operator of its possible liabil-ity as provided in § 725.412 of this sub-chapter, and shall proceed to adju-dicate the claim in accordance withthe appropriate provisions of subpartsD and E of part 725 of this subchapter.The identification and notification ofan operator shall be made as soon aspossible after receipt of the claimant’sfile

(2) An employer notified under thissection shall have the right to have theclaimant examined by a physician se-lected by such operator (see § 725.414 ofthis subchapter). If an employer con-tests the claim, the claimant may ob-tain and submit additional medical evi-dence to the district director withinthe time permitted by § 725.414 of thissubchapter for the submission of theemployer’s evidence. Evidence submit-ted by a claimant under this paragraphshall be paid for by the fund, if author-ized by the district director, and shallbe reimbursable to the fund by the em-ployer, if the employer is found liablefor the claim (see § 725.407 of this sub-chapter).

(c) Except as is otherwise provided inthis section, a determination of enti-tlement made by the Social SecurityAdministration under this section isbinding on the district director.

(d) If it is determined by an adminis-trative law judge, the Benefits ReviewBoard, or a U.S. court that the deter-mination of entitlement made by theSocial Security Administration was in-correct, the payment of benefits shallterminate and any benefits paid shallbe considered an overpayment subjectto collection in accordance with§ 725.540 of this subchapter.

§ 727.106 Action by the Office, insuffi-cient evidence for Social Securityapproval.

(a) In the case of a claim which hasnot been approved for benefits by theSocial Security Administration under§ 727.105, the claim shall be transferredby the Administration to the Officeand the Office shall follow the proce-dures set forth in this section. Thereshall be no further consideration of aclaim described in this paragraph ex-cept as provided in this part.


849


(b) Upon receipt of the claimant’s filefrom the Social Security Administra-tion, the Office shall assign the claimto a district director who may:

(1) Assist the claimant in obtainingadditional medical evidence or requestthat such evidence be submitted (see§§ 725.405–725.408 of this subchapter); or

(2) Request such additional docu-ments or information as may be nec-essary to establish the amount of bene-fits which may be payable, or to estab-lish a more detailed and complete his-tory of the nature and duration of theminer’s employment.

(c) Based upon the evidence devel-oped under this section, if any, and theinformation contained in the claim-ant’s original file, the district directormay make an initial finding with re-spect to the eligibility of the claimantand shall proceed to adjudicate theclaim under §§ 725.409–725.421 of thissubchapter, which action may includethe notification and participation of acoal mine employer and the submissionof additional evidence as is appro-priate.

§ 727.107 Action by the Office, SocialSecurity referral without prior re-view.

(a) In the case of a claim which is re-ferred at the claimant’s request by theSocial Security Administration to theOffice under § 727.104(a)(2) without priorreview by the Social Security Adminis-tration, the Office shall follow the pro-cedures set forth in this section.

(b) Upon receipt of a claimant’s filethe claim shall be assigned to a districtdirector who shall examine the evi-dence contained in the file to deter-mine whether the claim may be ap-proved in light of the amendmentsmade by the Black Lung Benefits Re-form Act of 1977.

(c) If it is determined by the districtdirector that the evidence in the filesupports a finding of entitlement tobenefits the district director may:

(1) Request up-to-date informationfrom the claimant pertaining to anymatter affecting the amount of bene-fits payable (see subpart G of part 725of this subchapter); and (2) request anyadditional information or verificationwhich may be necessary to establish amore detailed and complete history of

the miner’s employment, for the pur-pose of determining the identity of anycoal mine employer which may be lia-ble for the payment of the claim, andfor such other purposes as may be ap-propriate. Upon receipt of any addi-tional information requested underthis paragraph, or if the claimant failsto supply such information, the dis-trict director may make an initialfinding with respect to the eligibilityof the claimant, notify a coal mine em-ployer, if any, of its possible liabilityfor the claim and proceed to adjudicatethe claim under §§ 725.409–725.421 of thissubchapter.

(d) If it is determined by the districtdirector that the evidence on file is in-sufficient to support a finding of enti-tlement with respect to a claim re-viewed under this section, the districtdirector may:

(1) Assist the claimant in obtainingadditonal medical evidence or requestthat such evidence be submitted (see§§ 725.405–725.408 of this subchapter); or(2) request such additional documentsor information as may be necessary toestablish the amount of benefits whichmay be payable, or to establish a moredetailed and complete history of thenature and duration of the miner’s em-ployment. Based upon evidence devel-oped under this paragraph, if any, andthe information contained in theclaimant’s original file, the district di-rector may make an initial findingwith respect to the eligibility of theclaimant and shall proceed to adju-dicate the claim under §§ 725.409–725.421of this subchapter.

§ 727.108 Action by the Office, Depart-ment of Labor pending or deniedclaim.

(a) In the case of a claim filed withthe Office under section 415 or part C oftitle IV of the act which is pending orhas been denied as of March 1, 1978, theOffice shall follow the procedures setforth in this section.

(b) The district director shall exam-ine the evidence contained in the fileto determine whether the claim may beapproved in light of the amendmentsmade by the Black Lung Benefits Re-form Act of 1977.

(c) The district director may: (1) Re-quest up-to-date information from the


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20 CFR Ch. VI (4–1–98 Edition)§ 727.109

claimant pertaining to any matter af-fecting the amount of benefits payable(see subpart G of part 725 of this sub-chapter); and (2) request any additionalinformation or verification which maybe necessary to establish a more de-tailed and complete history of the min-er’s employment, for the purpose of de-termining the identity of any coalmine employer which may be liable forthe payment of the claim, and for suchother purposes as may be appropriate.Upon receipt of any additional infor-mation requested under this paragraph,or if the claimant fails to supply suchinformation, the district director maynotify a coal mine employer, if any, ofits possible liability for the claim andproceed to adjudicate the claim under§§ 725.409–725.421 of this subchapter.

(d) If it is determined by the districtdirector that the evidence on file is in-sufficient to support a finding of enti-tlement with respect to a claim re-viewed under this section, the districtdirector may:

(1) Assist the claimant in obtainingadditional medical evidence or requestthat such evidence be submitted (see§§ 725.405–725.408 of this subchapter); or(2) request such additional documentsor information as may be necessary toestablish the amount of benefits whichmay be payable, or to establish a moredetailed and complete history of thenature and duration of the miner’s em-ployment. Based upon the evidence de-veloped under this paragraph, if any,and the information contained in theclaimant’s original file, the district di-rector may make an initial findingwith respect to the eligibility of theclaimant and shall proceed to adju-dicate the claim under §§ 725.409–725.421of this subchapter.

(e) Notwithstanding the provisions ofparagraphs (a) through (d) of this sec-tion, in the case of a claim filed by apart B beneficiary under part C of theact prior to March 1, 1978, for such ad-ditional benefits as may be available,the Department shall accept the SocialSecurity Administration’s documentedfinding of entitlement as its initial de-termination of eligibility.

§ 727.109 Hearings and appeals, par-ties.

(a) If a hearing before an administra-tive law judge is necessary in connec-tion with a claim reviewed under thispart, the hearing shall be conducted inaccordance with the procedures setforth in subpart E of part 725 of thissubchapter. An appeal from a decisionof an administrative law judge shall beconsidered by the Benefits ReviewBoard in accordance with the proce-dures set forth in parts 801 and 802 ofthis title.

(b) parties to proceedings conductedin connection with a claim reviewedunder this section, matters relating tothe representation of parties and theright of such representative to obtain afee for services rendered, the powers ofadjudication officers and the service ofpapers or documents shall be governedby the appropriate provisions con-tained in subparts C, D, and E of part725 of this subchapter.

Subpart C—Criteria forDetermining Eligibility for Benefits

§ 727.200 Basis for criteria.In enacting the Black Lung Benefits

Reform Act of 1977, Congress providedthat the criteria for determiningwhether a miner is or was totally dis-abled or died due to pneumoconiosisshall be no more restrictive than thecriteria applicable to a claim filed withthe Social Security Administration onor before June 30, 1973, under part B oftitle IV of the Act (the interim adju-dicatory rules). These criteria are to beapplied to claims reviewed under sec-tion 435 of the Act, to all filed reviewedunder section 11 of the Black LungBenefits Reform Act of 1977 and to newclaims filed prior to the effective dateof regulations to be promulgated inpart 718 of this subchapter which willestablish permament criteria, regard-less of the date on which the claim isfinally adjudicated. The rules promul-gated in this section take into accountthe amendments made by the BlackLung Benefits Reform Act of 1977 andthe expectations of the Congress. Ac-cordingly, these rules provide addi-tional standards, not available in the


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interim adjudicatory rules, by which aclaimant can take advantage of a pre-sumption of total disability or deathdue to pneumoconiosis arising out ofcoal mine employment.

§ 727.201 Persons entitled to benefits,dependents.

Benefits are provided under the Actto a miner who is totally disabled dueto pneumoconiosis and to certain sur-vivors of a miner who died due to orwhile totally (or in certain cases, par-tially) disabled by pneumoconiosis.The amount of benefits payable to aminer or survivor may be increased onaccount of certain dependents. For thepurpose of determining whether aclaimant is a miner or qualified sur-vivor of a miner or a qualified depend-ent of a miner or survivor under thispart, the provisions of part 725 of thissubchapter shall be applicable as ap-propriate.

§ 727.202 Definition of pneumo-coniosis.

For the purposes of the act, pneumo-coniosis means a chronic dust disease ofthe lung and its sequelae, includingrespiratory and pulmonary impair-ments, arising out of coal mine em-ployment. This definition includes, butis not limited to, coal workers’ pneu-moconiosis, anthracosilicosis,anthracosisanthro-silicosis, massivepulmonary fibrosis, progressive mas-sive fibrosis silicosis, or silicotuber-culosis arising out of coal mine em-ployment. For purposes of this defini-tion, a disease ‘‘arising out of coalmine employment’’ includes any chron-ic pulmonary disease resulting in res-piratory or pulmonary impairment sig-nificantly related to, or aggravated by,dust exposure in coal mine employ-ment.

§ 727.203 Interim presumption.

(a) Establishing interim presumption. Aminer who engaged in coal mine em-ployment for at least 10 years will bepresumed to be totally disabled due topneumoconiosis, or to have been to-tally disabled due to pneumoconiosis atthe time of death, or death will be pre-sumed to be due to pneumoconiosis,arising out of that employment, if one

of the following medical requirementsis met:

(1) A chest roentgenogram (X-ray),biopsy, or autopsy establishes the ex-istence of pneumoconiosis (see § 410.428of this title);

(2) Ventilatory studies establish thepresence of a chronic respiratory orpulmonary disease (which meets the re-quirements for duration in§ 410.412(a)(2) of this title) as dem-onstrated by values which are equal toor less than the values specified in thefollowing table:

Equal to or lessthan—

FEV1 MVV

67″ or less .............................................. 2.3 9268″ .......................................................... 2.4 9669″ .......................................................... 2.4 9670″ .......................................................... 2.5 10071″ .......................................................... 2.6 10472″ .......................................................... 2.6 10473″ or more ............................................ 2.7 108

(3) Blood gas studies which dem-onstrate the presence of an impairmentin the transfer of oxygen from the lungalveoli to the blood as indicated by val-ues which are equal to or less than thevalues specified in the following table:

Arterial pO2

ArterialpCO2equalto orlessthan(mm.Hg.)

30 or below ................................................................ 70.31 ............................................................................... 69.32 ............................................................................... 68.33 ............................................................................... 67.34 ............................................................................... 66.35 ............................................................................... 65.36 ............................................................................... 64.37 ............................................................................... 63.38 ............................................................................... 62.39 ............................................................................... 61.40–45 ......................................................................... 60.Above 45 .................................................................... Any

value.

(4) Other medical evidence, includingthe documented opinion of a physicianexercising reasoned medical judgment,establishes the presence of a totallydisabling respiratory or pulmonary im-pairment;

(5) In the case of a deceased minerwhere no medical evidence is available,the affidavit of the survivor of suchminer or other persons with knowledge


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20 CFR Ch. VI (4–1–98 Edition)§ 727.204

of the miner’s physical condition, dem-onstrates the presence of a totally dis-abling respiratory or pulmonary im-pairment.

(b) Rebuttal of interim presumption. Inadjudicating a claim under this sub-part, all relevant medical evidenceshall be considered. The presumptionin paragraph (a) of this section shall berebutted if:

(1) The evidence establishes that theindividual is, in fact, doing his usualcoal mine work or comparable andgainful work (see § 410.412(a)(1) of thistitle); or

(2) In light of all relevant evidence itis established that the individual isable to do his usual coal mine work orcomparable and gainful work (see§ 410.412(a)(1) of this title); or

(3) The evidence establishes that thetotal disability or death of the minerdid not arise in whole or in part out ofcoal mine employment; or

(4) The evidence establishes that theminer does not, or did not, have pneu-moconiosis.

(c) Applicability of part 718. Except asis otherwise provided in this section,the provisions of part 718 of this sub-chapter as amended from time to time,shall also be applicable to the adjudica-tion of claims under this section.

(d) Failure of miner to qualify underthe presumption in paragraph (a) of thissection. Where eligibility is not estab-lished under this section, such eligi-bility may be established under part718 of this subchapter as amended fromtime to time.

§ 727.204 Presumption of entitlementapplicable to certain death claims.

(a) In the case of a miner who died onor before March 1, 1978, who was em-ployed for 25 or more years in one ormore coal mines prior to June 30, 1971,the eligible survivors of such minershall be entitled to the payment of ben-efits, unless it is established that atthe time of death such miner was notpartially or totally disabled due topneumoconiosis. Eligible survivorsshall, upon request by the Office, fur-nish such evidence as is available withrespect to the health of the miner atthe time of death, and the length of theminer’s coal mine employment.

(b) For the purpose of this section aminer will be considered to have been‘‘partially disabled’’ if he or she had re-duced ability to engage in his or herusual coal mine work or ‘‘comparableand gainful work’’ (see part 718 of thissubchapter as amended from time totime).

(c) In order to rebut this presumptionthe evidence must demonstrate thatthe miner’s ability to perform his orher usual and customary work or‘‘comparable and gainful work’’ wasnot reduced at the time of his or herdeath or that the miner did not havepneumoconiosis.

(d) The following evidence alone shallnot be sufficient to rebut the presump-tion:

(1) Evidence that a deceased minerwas employed in a coal mine at thetime of death;

(2) Evidence pertaining to a deceasedminer’s level of earnings prior todeath;

(3) A chest X-ray interpreted as nega-tive for the existence of pneumo-coniosis;

(4) A death certificate which makesno mention of pneumoconiosis.

§ 727.205 Effect of current coal mineemployment or coal mine employ-ment at the time of death.

In the case of a miner who is workingin coal mine employment or was em-ployed in coal mine employment at thetime of death, the following shallapply:

(a) A deceased miner’s employmentin a mine at the time of death shall notbe used as conclusive evidence that theminer was not totally disabled. In thecase of a deceased miner who was em-ployed in a coal mine at the time ofdeath, all relevant evidence, includingthe circumstances of such employmentand the statements of the miner’sspouse, shall be considered in deter-mining whether the miner was totallydisabled due to pneumoconiosis at thetime of death. In the case of a livingminer, if there are changed cir-cumstances of employment indicativeof reduced ability to perform his or hercoal mine work, the miner’s employ-ment in a mine shall not be used asconclusive evidence that the miner isnot totally disabled.


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(b) Notwithstanding any other provi-sion of this section, and except as pro-vided in section 411(c)(3) of the act, nominer shall be found to be totally dis-abled if the miner is found to be doinghis or her customary coal mine work or‘‘comparable and gainful work’’ (see§ 410.412(a)(1) of this title) and there areno changed circumstances of employ-ment indicative of reduced ability toperform coal mine work.

(c) No miner who is engaged in coalmine employment shall (except as pro-vided in section 411(c)(3) of the act) beentitled to any benefits under this partwhile so employed. Any miner who hasbeen determined to be eligible for bene-fits for any period during which suchminer is engaged in coal mine employ-ment shall be entitled to benefits if theminer’s employment terminates within1 year after the date such determina-tion becomes final (see § 725.503A of thissubchapter).

§ 727.206 Quality standards applicableto evidence.

(a) No chest X-ray or X-ray report,ventilatory study or blood gas studywhich does not or did not meet thequality standards applicable at thetime the evidence was submitted shallbe considered sufficient to invoke theinterim presumption provided in§ 727.203(a) of this part. With respect toevidence submitted prior to the effec-tive date of part 718 of this title, thestandards to be applied in the evalua-tion of evidence are contained in sub-part D of part 410 of this title. Evidencesubmitted after the effective date ofthe revised part 718 shall be evaluatedas provided in that part.

(b)(1) In all claims where there isother evidence of a pulmonary or res-piratory impairment, a board-certifiedor board-eligible radiologist’s interpre-tation of a chest X-ray shall be accept-ed by the Office if the X-ray is in com-pliance with the requirements of§ 410.428(b) of this title and if such X-ray has been taken by a radiologist orqualified radiologic technologist ortechnician and there is no evidencethat the claim has been fraudulentlyrepresented.

(2) The following definitions shallapply when making a finding in accord-ance with this paragraph:

(i) The term ‘‘other evidence’’ meansmedical tests such as blood-gas studies,pulmonary function studies or physicalperformance tests, physical examina-tions or medical histories which estab-lish the presence of a chronic res-piratory or cardio-pulmonary conditionand the spouse’s affidavit except thatthe spouse’s affidavit alone shall not besufficient in the case of a living minerto establish the existence of a res-piratory or pulmonary impairment. Inthe case of a deceased miner, in the ab-sence of medical evidence to the con-trary, affidavits of persons with knowl-edge of the miner’s physical conditionmay be sufficient to establish the pres-ence of a respiratory or pulmonary im-pairment.

(ii) ‘‘Pulmonary or respiratory im-pairment’’ means an inability of thehuman respiratory apparatus to per-form satisfactorily one or more of thethree components of respiration, viz.,ventilation, perfusion, and diffusion.

(iii) ‘‘Board-certified’’ means certifi-cation in radiology or diagnostic roent-genology by the American Board of Ra-diology, Inc. or the American Osteo-pathic Association.

(iv) ‘‘Board-eligible’’ means the suc-cessful completion of a formal accred-ited residency program in radiology ordiagnostic roentgenology.

(v) ‘‘Qualified radiologic technologistor technician’’ means an individualwho is either certified as a registeredtechnologist by the American Registryof Radiologic Technologists or licensedas a radiologic technologist by a Statelicensing board.

Subpart D—Payment of Benefits/Liability

§ 727.300 Conditions and duration ofeligibility.

The provisions of subpart B of part725 of this subchapter shall be applica-ble in determining the conditions andduration of eligibility applicable withrespect to a claim approved under thispart.


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20 CFR Ch. VI (4–1–98 Edition)§ 727.301

§ 727.301 Amounts payable, other pay-ment provisions.

Except as is otherwise provided inthis part (see § 727.302), provisions re-lating to the amount of benefits pay-able, the manner of payment and allother provisions contained in subpartG of part 725 and § 725.309 of this sub-chapter, shall be applicable to a claimapproved under this part. A minerwhose claim is approved under thispart shall be entitled to medical bene-fits to be determined and administeredin accordance with the provisions ofsubpart I of part 725 of this subchapter.

§ 727.302 Date from which benefits arepayable after review and approval.

(a) Section 435(c) of the act providesthat any individual whose claim is ap-proved after review shall be awardedbenefits on a retroactive basis for a pe-riod which begins no earlier than Janu-ary 1, 1974. This section implementssection 435(c) of the act and sets forthprovisions governing the date fromwhich benefits shall be payable with re-spect to a claim reviewed under thispart. (See also section 6(a) of the Long-shoremen’s Act as incorporated by sec-tion 422(a) of the act.)

(b) In the case of a claim reviewedand finally approved under § 727.105,benefits shall be payable for all periodsof eligibility occurring on or after Jan-uary 1, 1974.

(c)(1) In the case of a miner whoseclaim is reviewed and finally approvedunder § 727.106, benefits shall be payablefor all periods of eligibility beginningwith the month of onset of total dis-ability due to pneumoconiosis or Janu-ary 1, 1974, whichever is later. Wherethe evidence does not establish themonth of onset, benefits shall be pay-able from the month during which theminer elected review under § 727.104.

(2) In the case of a survivor whoseclaim is reviewed and finally approvedunder § 727.106, benefits shall be payablefor all periods of eligibility occurringon or after the month of the miner’sdeath or January 1, 1974, whichever islater.

(d)(1) In the case of a miner’s claimwhich is reviewed and finally approvedunder § 727.107, benefits shall be payablefor all periods of eligibility beginningwith the month of onset of total dis-

ability due to pneumoconiosis or Janu-ary 1, 1974, whichever is later. Wherethe evidence does not establish themonth of onset, benefits shall be pay-able from the month during which theminer elected review under § 727.104.

(2) In the case of a survivor whoseclaim is reviewed and finally approvedunder § 727.107, benefits shall be payablefor all periods of eligibility occurringon or after the month of the miner’sdeath or January 1, 1974, whichever islater.

(e) In the case of a claim reviewedand finally approved under § 727.108,benefits shall be payable as provided in§ 725.503 of this subchapter.

(f) For the purposes of this section,the term ‘‘finally approved’’ meansthat an award of benefits has beenmade or affirmed by a district director,administrative law judge, the BenefitsReview Board, or a U.S. court of ap-peals, that no further hearing, appeal,or reconsideration is pending, and thetime to request such hearing, appeal,or reconsideration has expired. (Seepart 725 of this subchapter generally.)Benefit payments shall be initiatedprior to final approval in accordancewith the provisions of § 725.522 of thissubchapter.

§ 727.303 Claims filed under section415 of the act.

(a) A claim filed by a miner betweenJuly 1 and December 31, 1973, with theSecretary of Labor under section 415 ofthe act is subject to review under thissection if it was pending or had beendenied on or before March 1, 1978. Priorto the enactment of the Black LungBenefits Reform Act of 1977, benefitswith respect to a section 415 claim mayhave been payable by the Secretary ofLabor from Federal funds for periods ofeligibility between July 1 and Decem-ber 31, 1973. However, under section 435of the act, no benefits may be paid withrespect to a claim reviewed under thatsection, including a section 415 claim,for any period of eligibility prior toJanuary 1, 1974. Accordingly, in thecase of any claim filed under section415 of the act with respect to which nobenefits have been awarded prior toMarch 1, 1978, for any period of eligi-bility between July 1 and December 31,1973, no benefits which might have been


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awarded for this period shall be award-ed in any adjudication of the claimtaking place after the effective date ofthis part.

(b) A claim filed under section 415 ofthe act which is reviewed under thispart shall for all purposes be consid-ered as if it was filed on January 1,1974, under part C of title IV of the Act.

§ 727.304 Liability for benefit pay-ments.

A claim approved under this partshall be payable either by a coal mineemployer (see subpart F of part 725 ofthis subchapter) or the black lung dis-ability trust fund. Benefits shall bepayable by a responsible coal mine em-ployer if the miner’s last date of coalmine employment occurred on or afterJanuary 1, 1970, and if the miner’s lastcoal mine employer or a successor tosuch employer is found liable under theprovisions of subpart F of part 725 ofthis subchapter. Where it is determinedthat the employer liable for the pay-ment of such benefits has not com-menced payment of benefits within 30days after the date the claimant is ini-tially determined eligible or within 30days after a payment is due, the fundwill make the required payments. Theemployer is required by section 424 ofthe act to reimburse the fund where itsliability is finally determined. For thepurposes of determining the liability ofa coal mine employer or the fund forthe payment of an approved claim, theprovisions of subparts F and H of part725 of this subchapter shall be applica-ble to a claim considered under thispart, including any claim originallyfiled under part B of title IV of the Actwith the Social Security Administra-tion. In all other cases, benefits shallbe payable by the fund. Nothing in thispart shall be construed in derogation ofthe terms of part 725 of this subchapterinsofar as part 725 affects the liabilityof a coal mine employer.

Subpart E—Special Review Provi-sions Relating to Claims Pend-ing Before an AdministrativeLaw Judge or the Benefits Re-view Board

§ 727.401 General.

Section 435 of the act requires theSecretary of Labor to establish a con-sistent and effective procedure for thereview of pending and denied claims inlight of the amendments made by theBlack Lung Benefits Reform Act of1977. A number of the claims encom-passed by section 435 are pending in theOffice of Administrative Law Judges orbefore the Benefits Review Board. Inorder to insure a fair, orderly, and uni-form disposition of claims pending be-fore an administrative law judge or theBoard which are subject to reviewunder section 435 of the act, it has beendetermined that a return of many ofthese claims to the Office for expeditedreview is essential. This subpart setsforth the procedures to be followedwith respect to claims which are with-in the jurisdiction of the Office of Ad-ministrative Law Judges or the Bene-fits Review Board for which reviewunder section 435 of the act is required.In order to carry out the purposes ofsection 435, certain of the proceduresordinarily applicable in the adjudica-tion of a claim are changed in certainspecified instances. These changes areintended exclusively to facilitate a uni-form administrative review of all pend-ing and denied claims where such re-view is appropriate. Once the adminis-trative review of these claims has beencompleted, the hearing and appeal pro-cedures set forth in subpart D of part725 of this subchapter shall be availableto all parties to a claim. Additionalevidence may be submitted in connec-tion with a reviewed claim by anyparty as is considered appropriate bythe district director or administrativelaw judge, and as is permitted by theact and this part.


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20 CFR Ch. VI (4–1–98 Edition)§ 727.402

§ 727.402 Claims pending in the Officeof Administrative Law Judges.

(a) A claim which is pending in theOffice of Administrative Law Judgesmay be subject to review by a districtdirector under this part. This sectionsets forth criteria to be applied by theChief Administrative Law Judge or anadministrative law judge for determin-ing whether a claim should be re-manded to the district director for re-view under § 727.108 or whether jurisdic-tion over the claim should be retainedand sets forth a procedure to be fol-lowed if remand is required.

(b) A claim pending in the Office ofAdministrative Law Judges, which hasbeen administratively denied by thedistrict director and with respect towhich no decision has been issued, maybe remanded to the district director forconsideration under § 727.108, upon therequest of the Director or the claim-ant, or by the administrative law judgeon his or her own motion.

(c) A claim pending in the Office ofAdministrative Law Judges, which hasbeen administratively approved by thedistrict director and was forwarded forhearing at the request of a coal mineoperator, shall be remanded to the dis-trict director for payment if the mineron whose total disability or death theclaim is predicated was last engaged incoal mine employment before January1, 1970. If the miner’s last coal mineemployment occurred on or after Janu-ary 1, 1970, the Office of AdministrativeLaw Judges shall retain jurisdictionover the claim and proceed to adju-dicate the claimant’s eligibility andthe liability of the named coal mineemployer in accordance with the provi-sions of this part. If jurisdiction over aclaim is retained under this paragraph,the administrative law judge may, onhis or her own motion or at the requestof the claimant, remand the claim tothe district director for considerationunder § 727.108 if further evidentiary de-velopment of the claim is necessary.The right to review provided by§ 727.108 is not available to a coal mineemployer.

(d) A claim which has been denied byan administrative law judge and withrespect to which no reconsideration orappeal is pending shall be automati-cally reviewed under § 727.108.

(e) In the case of a claim with respectto which a decision has been issued byan administrative law judge but notfiled with the district director, or if thedecision has been filed and the time forappeal to the Benefits Review Boardhas not expired, the provisions of thisparagraph shall apply. If appropriate,such decision shall be immediatelyfiled with the district director. If thedecision denied the claimant’s entitle-ment to benefits, the claim shall beconsidered a pending claim subject toreview by the district director under§ 727.108, or subject to an appeal to theBenefits Review Board. If the decisionawards benefits to the claimant, theclaim shall be paid as provided in part725 of this subchapter and an appeal tothe Benefits Review Board may betaken. If such an appeal is taken, theBoard shall consider the appeal underthe applicable provisions of this part,and may take such other action as isappropriate.

(f) Except as provided in paragraph(b) of this section, the remand of aclaim authorized by this section shallbe made by order of the Chief Adminis-trative Law Judge or an administrativelaw judge on his or her own motion, oron the motion of any party to theclaim as is appropriate.

§ 727.403 Claims pending before theBenefits Review Board.

(a) A claim pending before the Bene-fits Review Board which may be sub-ject to review under this part shall beconsidered by the Board as the Boarddeems appropriate, in accordance withthe authority given the Board by theact.

(b) If a claim subject to review underthis part is pending before the Board,the Board may, on its own motion or atthe request of the Director, remandsuch case to the district director for re-view under § 727.108. The consent of theparties shall not be a prerequisite to aremand by the Board under this para-graph.

(c) A claimant whose claim is pend-ing before the Board may request thathis or her claim be remanded to thedistrict director for considerationunder § 727.108.


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§ 727.404 Claims pending in a U.S.Court of Appeals.

A claim pending in a U.S. court of ap-peals which may be subject to reviewunder this part shall be considered bythe court as the court deems appro-priate.

§ 727.405 Expedited review of claims.

(a) A claim which is remanded to thedistrict director by an administrativelaw judge, the Benefits Review Board,or a court, under this subpart shall bereviewed under § 727.108 and in accord-ance with the provisions of this part ona priority basis. Such claim shall be re-viewed by the district director beforeany other claim, except for a claim re-manded at an earlier date under thissubpart. If no additional evidence is

submitted or required with respect to aclaim remanded under this subpart, thedistrict director shall make initialfindings (see § 725.410 of this sub-chapter) on the claim within no morethan 60 days from the date on whichthe claim was remanded.

(b) If, after appropriate notice hasbeen given to the claimant of his op-portunity to elect review by the dis-trict director in accordance with thissubpart, or to proceed through the ad-ministrative appeals process, theclaimant chooses not to elect review bythe district director, the claimant’sright to review provided by this partshall be considered fully satisfied, andno further review of the claim beyondthat afforded by the appeals processshall be required under section 435 ofthe act.


subchapter b—federal coal mine health and … · 718.205 death due to pneumoconiosis. 718.206...

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