Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended [Rules and Regulations] [12/20/2000]
Regulations Implementing the Federal Coal Mine Health and Safety Act of
1969, as Amended [12/20/2000]
Due to the large file size, this document has been
divided into four parts:
Volume 65, Number 245, Page 80069-80107
[[pp. 80069-80107]] Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
[[Continued from page 80068]]
[[Page 80069]]
under paragraph (a) shall be subject to collection or offset under
subpart H of this part.
Sec. 725.311 Communications with respect to claims; time computations.
(a) Unless otherwise specified by this part, all requests,
responses, notices, decisions, orders, or other communications required
or permitted by this part shall be in writing.
(b) If required by this part, any document, brief, or other
statement submitted in connection with the adjudication of a claim
under this part shall be sent to each party to the claim by the
submitting party. If proof of service is required with respect to any
communication, such proof of service shall be submitted to the
appropriate adjudication officer and filed as part of the claim record.
(c) In computing any period of time described in this part, by any
applicable statute, or by the order of any adjudication officer, the
day of the act or event from which the designated period of time begins
to run shall not be included. The last day of the period shall be
included unless it is a Saturday, Sunday, or legal holiday, in which
event the period extends until the next day which is not a Saturday,
Sunday, or legal holiday. ``Legal holiday'' includes New Year's Day,
Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day and any other day appointed as a
holiday by the President or the Congress of the United States.
(d) In computing any period of time described in this part in which
the period within which to file a response commences upon receipt of a
document, it shall be presumed, in the absence of evidence to the
contrary, that the document was received on the seventh day after it
was mailed. In any case in which a provision of this part requires a
document to be sent to a person or party by certified mail, and the
document is not sent by certified mail, but the person or party
actually received the document, the document shall be deemed to have
been sent in compliance with the provisions of this part. In such a
case, any time period which commences upon the service of the document
shall commence on the date the document was received.
Subpart D--Adjudication Officers; Parties and Representatives
Sec. 725.350 Who are the adjudication officers?
(a) General. The persons authorized by the Secretary of Labor to
accept evidence and decide claims on the basis of such evidence are
called ``adjudication officers.'' This section describes the status of
black lung claims adjudication officers.
(b) District Director. The district director is that official of
the DCMWC or his designee who is authorized to perform functions with
respect to the development, processing, and adjudication of claims in
accordance with this part.
(c) Administrative law judge. An administrative law judge is that
official appointed pursuant to 5 U.S.C. 3105 (or Public Law 94-504) who
is qualified to preside at hearings under 5 U.S.C. 557 and is empowered
by the Secretary to conduct formal hearings with respect to, and
adjudicate, claims in accordance with this part. A person appointed
under Public Law 94-504 shall not be considered an administrative law
judge for purposes of this part for any period after March 1, 1979.
Sec. 725.351 Powers of adjudication officers.
(a) District Director. The district director is authorized to:
(1) Make determinations with respect to claims as is provided in
this part;
(2) Conduct conferences and informal discovery proceedings as
provided in this part;
(3) Compel the production of documents by the issuance of a
subpoena;
(4) Prepare documents for the signature of parties;
(5) Issue appropriate orders as provided in this part; and
(6) Do all other things necessary to enable him or her to discharge
the duties of the office.
(b) Administrative Law Judge. An administrative law judge is
authorized to:
(1) Conduct formal hearings in accordance with the provisions of
this part;
(2) Administer oaths and examine witnesses;
(3) Compel the production of documents and appearance of witnesses
by the issuance of subpoenas;
(4) Issue decisions and orders with respect to claims as provided
in this part; and
(5) Do all other things necessary to enable him or her to discharge
the duties of the office.
(c) If any person in proceedings before an adjudication officer
disobeys or resists any lawful order or process, or misbehaves during a
hearing or so near the place thereof as to obstruct the same, or
neglects to produce, after having been ordered to do so, any pertinent
book, paper or document, or refuses to appear after having been
subpoenaed, or upon appearing refuses to take the oath as a witness, or
after having taken the oath refuses to be examined according to law,
the district director, or the administrative law judge responsible for
the adjudication of the claim, shall certify the facts to the Federal
district court having jurisdiction in the place in which he or she is
sitting (or to the U.S. District Court for the District of Columbia if
he or she is sitting in the District) which shall thereupon in a
summary manner hear the evidence as to the acts complained of, and, if
the evidence so warrants, punish such person in the same manner and to
the same extent as for a contempt committed before the court, or commit
such person upon the same condition as if the doing of the forbidden
act had occurred with reference to the process or in the presence of
the court.
Sec. 725.352 Disqualification of adjudication officer.
(a) No adjudication officer shall conduct any proceedings in a
claim in which he or she is prejudiced or partial, or where he or she
has any interest in the matter pending for decision. A decision to
withdraw from the consideration of a claim shall be within the
discretion of the adjudication officer. If that adjudication officer
withdraws, another officer shall be designated by the Director or the
Chief Administrative Law Judge, as the case may be, to complete the
adjudication of the claim.
(b) No adjudication officer shall be permitted to appear or act as
a representative of a party under this part while such individual is
employed as an adjudication officer. No adjudication officer shall be
permitted at any time to appear or act as a representative in
connection with any case or claim in which he or she was personally
involved. No fee or reimbursement shall be awarded under this part to
an individual who acts in violation of this paragraph.
(c) No adjudication officer shall act in any claim involving a
party which employed such adjudication officer within one year before
the adjudication of such claim.
(d) Notwithstanding paragraph (a) of this section, no adjudication
officer shall be permitted to act in any claim involving a party who is
related to the adjudication officer by consanguinity or affinity within
the third degree as determined by the law of the place where such party
is domiciled. Any action taken by an adjudication officer in knowing
violation of this paragraph shall be void.
[[Page 80070]]
Sec. 725.360 Parties to proceedings.
(a) Except as provided in Sec. 725.361, no person other than the
Secretary of Labor and authorized personnel of the Department of Labor
shall participate at any stage in the adjudication of a claim for
benefits under this part, unless such person is determined by the
appropriate adjudication officer to qualify under the provisions of
this section as a party to the claim. The following persons shall be
parties:
(1) The claimant;
(2) A person other than a claimant, authorized to execute a claim
on such claimant's behalf under Sec. 725.301;
(3) Any coal mine operator notified under Sec. 725.407 of its
possible liability for the claim;
(4) Any insurance carrier of such operator; and
(5) The Director in all proceedings relating to a claim for
benefits under this part.
(b) A widow, child, parent, brother, or sister, or the
representative of a decedent's estate, who makes a showing in writing
that his or her rights with respect to benefits may be prejudiced by a
decision of an adjudication officer, may be made a party.
(c) Any coal mine operator or prior operator or insurance carrier
which has not been notified under Sec. 725.407 and which makes a
showing in writing that its rights may be prejudiced by a decision of
an adjudication officer may be made a party.
(d) Any other individual may be made a party if that individual's
rights with respect to benefits may be prejudiced by a decision to be
made.
Sec. 725.361 Party amicus curiae.
At the discretion of the Chief Administrative Law Judge or the
administrative law judge assigned to the case, a person or entity which
is not a party may be allowed to participate amicus curiae in a formal
hearing only as to an issue of law. A person may participate amicus
curiae in a formal hearing upon written request submitted with
supporting arguments prior to the hearing. If the request is granted,
the administrative law judge hearing the case will inform the party of
the extent to which participation will be permitted. The request may,
however, be denied summarily and without explanation.
Sec. 725.362 Representation of parties.
(a) Except for the Secretary of Labor, whose interests shall be
represented by the Solicitor of Labor or his or her designee, each of
the parties may appoint an individual to represent his or her interest
in any proceeding for determination of a claim under this part. Such
appointment shall be made in writing or on the record at the hearing.
An attorney qualified in accordance with Sec. 725.363(a) shall file a
written declaration that he or she is authorized to represent a party,
or declare his or her representation on the record at a formal hearing.
Any other person (see Sec. 725.363(b)) shall file a written notice of
appointment signed by the party or his or her legal guardian, or enter
his or her appearance on the record at a formal hearing if the party he
or she seeks to represent is present and consents to the
representation. Any written declaration or notice required by this
section shall include the OWCP number assigned by the Office and shall
be sent to the Office or, for representation at a formal hearing, to
the Chief Administrative Law Judge. In any case, such representative
must be qualified under Sec. 725.363. No authorization for
representation or agreement between a claimant and representative as to
the amount of a fee, filed with the Social Security Administration in
connection with a claim under part B of title IV of the Act, shall be
valid under this part. A claimant who has previously authorized a
person to represent him or her in connection with a claim originally
filed under part B of title IV may renew such authorization by filing a
statement to such effect with the Office or appropriate adjudication
officer.
(b) Any party may waive his or her right to be represented in the
adjudication of a claim. If an adjudication officer determines, after
an appropriate inquiry has been made, that a claimant who has been
informed of his or her right to representation does not wish to obtain
the services of a representative, such adjudication officer shall
proceed to consider the claim in accordance with this part, unless it
is apparent that the claimant is, for any reason, unable to continue
without the help of a representative. However, it shall not be
necessary for an adjudication officer to inquire as to the ability of a
claimant to proceed without representation in any adjudication taking
place without a hearing. The failure of a claimant to obtain
representation in an adjudication taking place without a hearing shall
be considered a waiver of the claimant's right to representation.
However, at any time during the processing or adjudication of a claim,
any claimant may revoke such waiver and obtain a representative.
Sec. 725.363 Qualification of representative.
(a) Attorney. Any attorney in good standing who is admitted to
practice before a court of a State, territory, district, or insular
possession, or before the Supreme Court of the United States or other
Federal court and is not, pursuant to any provision of law, prohibited
from acting as a representative, may be appointed as a representative.
(b) Other person. With the approval of the adjudication officer,
any other person may be appointed as a representative so long as that
person is not, pursuant to any provision of law, prohibited from acting
as a representative.
Sec. 725.364 Authority of representative.
A representative, appointed and qualified as provided in
Secs. 725.362 and 725.363, may make or give on behalf of the party he
or she represents, any request or notice relative to any proceeding
before an adjudication officer, including formal hearing and review,
except that such representative may not execute a claim for benefits,
unless he or she is a person designated in Sec. 725.301 as authorized
to execute a claim. A representative shall be entitled to present or
elicit evidence and make allegations as to facts and law in any
proceeding affecting the party represented and to obtain information
with respect to the claim of such party to the same extent as such
party. Notice given to any party of any administrative action,
determination, or decision, or request to any party for the production
of evidence shall be sent to the representative of such party and such
notice or request shall have the same force and effect as if it had
been sent to the party represented.
Sec. 725.365 Approval of representative's fees; lien against benefits.
No fee charged for representation services rendered to a claimant
with respect to any claim under this part shall be valid unless
approved under this subpart. No contract or prior agreement for a fee
shall be valid. In cases where the obligation to pay the attorney's fee
is upon the claimant, the amount of the fee awarded may be made a lien
upon the benefits due under an award and the adjudication officer shall
fix, in the award approving the fee, such lien and the manner of
payment of the fee. Any representative who is not an attorney may be
awarded a fee for services under this subpart, except that no lien may
be imposed with respect to such representative's fee.
[[Page 80071]]
Sec. 725.366 Fees for representatives.
(a) A representative seeking a fee for services performed on behalf
of a claimant shall make application therefor to the district director,
administrative law judge, or appropriate appellate tribunal, as the
case may be, before whom the services were performed. The application
shall be filed and served upon the claimant and all other parties
within the time limits allowed by the district director, administrative
law judge, or appropriate appellate tribunal. The application shall be
supported by a complete statement of the extent and character of the
necessary work done, and shall indicate the professional status (e.g.,
attorney, paralegal, law clerk, lay representative or clerical) of the
person performing such work, and the customary billing rate for each
such person. The application shall also include a listing of reasonable
unreimbursed expenses, including those for travel, incurred by the
representative or an employee of a representative in establishing the
claimant's case. Any fee requested under this paragraph shall also
contain a description of any fee requested, charged, or received for
services rendered to the claimant before any State or Federal court or
agency in connection with a related matter.
(b) Any fee approved under paragraph (a) of this section shall be
reasonably commensurate with the necessary work done and shall take
into account the quality of the representation, the qualifications of
the representative, the complexity of the legal issues involved, the
level of proceedings to which the claim was raised, the level at which
the representative entered the proceedings, and any other information
which may be relevant to the amount of fee requested. No fee approved
shall include payment for time spent in preparation of a fee
application. No fee shall be approved for work done on claims filed
between December 30, 1969, and June 30, 1973, under part B of title IV
of the Act, except for services rendered on behalf of the claimant in
regard to the review of the claim under section 435 of the Act and part
727 of this subchapter (see Sec. 725.4(d)).
(c) In awarding a fee, the appropriate adjudication officer shall
consider, and shall add to the fee, the amount of reasonable and
unreimbursed expenses incurred in establishing the claimant's case.
Reimbursement for travel expenses incurred by an attorney shall be
determined in accordance with the provisions of Sec. 725.459(a). No
reimbursement shall be permitted for expenses incurred in obtaining
medical or other evidence which has previously been submitted to the
Office in connection with the claim.
(d) Upon receipt of a request for approval of a fee, such request
shall be reviewed and evaluated by the appropriate adjudication officer
and a fee award issued. Any party may request reconsideration of a fee
awarded by the adjudication officer. A revised or modified fee award
may then be issued, if appropriate.
(e) Each request for reconsideration or review of a fee award shall
be in writing and shall contain supporting statements or information
pertinent to any increase or decrease requested. If a fee awarded by a
district director is disputed, such award shall be appealable directly
to the Benefits Review Board. In such a fee dispute case, the record
before the Board shall consist of the order of the district director
awarding or denying the fee, the application for a fee, any written
statement in opposition to the fee and the documentary evidence
contained in the file which verifies or refutes any item claimed in the
fee application.
Sec. 725.367 Payment of a claimant's attorney's fee by responsible
operator or fund.
(a) An attorney who represents a claimant in the successful
prosecution of a claim for benefits may be entitled to collect a
reasonable attorney's fee from the responsible operator that is
ultimately found liable for the payment of benefits, or, in a case in
which there is no operator who is liable for the payment of benefits,
from the fund. Generally, the operator or fund liable for the payment
of benefits shall be liable for the payment of the claimant's
attorney's fees where the operator or fund, as appropriate, took
action, or acquiesced in action, that created an adversarial
relationship between itself and the claimant. The fees payable under
this section shall include reasonable fees for necessary services
performed prior to the creation of the adversarial relationship.
Circumstances in which a successful attorney's fees shall be payable by
the responsible operator or the fund include, but are not limited to,
the following:
(1) The responsible operator designated by the district director
(see Sec. 725.410(a)(3)) fails to accept the claimant's entitlement to
benefits within the 30-day period provided by Sec. 725.412(b) and is
ultimately determined to be liable for benefits. The operator shall be
liable for an attorney's fee with respect to all necessary services
performed by the claimant's attorney;
(2) There is no operator that may be held liable for the payment of
benefits, and the district director issues a schedule for the
submission of additional evidence under Sec. 725.410. The fund shall be
liable for an attorney's fee with respect to all necessary services
performed by the claimant's attorney;
(3) The claimant submits a bill for medical treatment, and the
party liable for the payment of benefits declines to pay the bill on
the grounds that the treatment is unreasonable, or is for a condition
that is not compensable. The responsible operator or fund, as
appropriate, shall be liable for an attorney's fee with respect to all
necessary services performed by the claimant's attorney;
(4) A beneficiary seeks an increase in the amount of benefits
payable, and the responsible operator or fund contests the claimant's
right to that increase. If the beneficiary is successful in securing an
increase in the amount of benefits payable, the operator or fund shall
be liable for an attorney's fee with respect to all necessary services
performed by the beneficiary's attorney;
(5) The responsible operator or fund seeks a decrease in the amount
of benefits payable. If the beneficiary is successful in resisting the
request for a decrease in the amount of benefits payable, the operator
or fund shall be liable for an attorney's fee with respect to all
necessary services performed by the beneficiary's attorney. A request
for information clarifying the amount of benefits payable shall not be
considered a request to decrease that amount.
(b) Any fee awarded under this section shall be in addition to the
award of benefits, and shall be awarded, in an order, by the district
director, administrative law judge, Board or court, before whom the
work was performed. The operator or fund shall pay such fee promptly
and directly to the claimant's attorney in a lump sum after the award
of benefits becomes final.
(c) Section 205(a) of the Black Lung Benefits Amendments of 1981,
Public Law 97-119, amended section 422 of the Act and relieved
operators and carriers from liability for the payment of benefits on
certain claims. Payment of benefits on those claims was made the
responsibility of the fund. The claims subject to this transfer of
liability are described in Sec. 725.496. On claims subject to the
transfer of liability described in this paragraph the fund will pay all
fees and costs which have been or will be awarded to claimant's
attorneys which were or would have become the liability of an operator
or carrier but for the enactment of the 1981 Amendments and which have
not already been paid by such operator or carrier. Section 9501(d)(7)
of the
[[Page 80072]]
Internal Revenue Code (26 U.S.C.), which was also enacted as a part of
the 1981 Amendments to the Act, expressly prohibits the fund from
reimbursing an operator or carrier for any attorney fees or costs which
it has paid on cases subject to the transfer of liability provisions.
Subpart E--Adjudication of Claims by the District Director
Sec. 725.401 Claims development--general.
After a claim has been received by the district director, the
district director shall take such action as is necessary to develop,
process, and make determinations with respect to the claim as provided
in this subpart.
Sec. 725.402 Approved State workers' compensation law.
If a district director determines that any claim filed under this
part is one subject to adjudication under a workers' compensation law
approved under part 722 of this subchapter, he or she shall advise the
claimant of this determination and of the Act's requirement that the
claim must be filed under the applicable State workers' compensation
law. The district director shall then prepare a proposed decision and
order dismissing the claim for lack of jurisdiction pursuant to
Sec. 725.418 and proceed as appropriate.
Sec. 725.403 [Reserved]
Sec. 725.404 Development of evidence--general.
(a) Employment history. Each claimant shall furnish the district
director with a complete and detailed history of the coal miner's
employment and, upon request, supporting documentation.
(b) Matters of record. Where it is necessary to obtain proof of
age, marriage or termination of marriage, death, family relationship,
dependency (see subpart B of this part), or any other fact which may be
proven as a matter of public record, the claimant shall furnish such
proof to the district director upon request.
(c) Documentary evidence. If a claimant is required to submit
documents to the district director, the claimant shall submit either
the original, a certified copy or a clear readable copy thereof. The
district director or administrative law judge may require the
submission of an original document or certified copy thereof, if
necessary.
(d) Submission of insufficient evidence. In the event a claimant
submits insufficient evidence regarding any matter, the district
director shall inform the claimant of what further evidence is
necessary and request that such evidence be submitted within a
specified reasonable time which may, upon request, be extended for good
cause.
Sec. 725.405 Development of medical evidence; scheduling of medical
examinations and tests.
(a) Upon receipt of a claim, the district director shall ascertain
whether the claim was filed by or on account of a miner as defined in
Sec. 725.202, and in the case of a claim filed on account of a deceased
miner, whether the claim was filed by an eligible survivor of such
miner as defined in subpart B of this part.
(b) In the case of a claim filed by or on behalf of a miner, the
district director shall, where necessary, schedule the miner for a
medical examination and testing under Sec. 725.406.
(c) In the case of a claim filed by or on behalf of a survivor of a
miner, the district director shall obtain whatever medical evidence is
necessary and available for the development and evaluation of the
claim.
(d) The district director shall, where appropriate, collect other
evidence necessary to establish:
(1) The nature and duration of the miner's employment; and
(2) All other matters relevant to the determination of the claim.
(e) If at any time during the processing of the claim by the
district director, the evidence establishes that the claimant is not
entitled to benefits under the Act, the district director may terminate
evidentiary development of the claim and proceed as appropriate.
Sec. 725.406 Medical examinations and tests.
(a) The Act requires the Department to provide each miner who
applies for benefits with the opportunity to undergo a complete
pulmonary evaluation at no expense to the miner. A complete pulmonary
evaluation includes a report of physical examination, a pulmonary
function study, a chest roentgenogram and, unless medically
contraindicated, a blood gas study.
(b) As soon as possible after a miner files an application for
benefits, the district director will provide the miner with a list of
medical facilities and physicians in the state of the miner's residence
and states contiguous to the state of the miner's residence that the
Office has authorized to perform complete pulmonary evaluations. The
miner shall select one of the facilities or physicians on the list,
provided that the miner may not select any physician to whom the miner
or the miner's spouse is related to the fourth degree of consanguinity,
and the miner may not select any physician who has examined or provided
medical treatment to the miner within the twelve months preceding the
date of the miner's application. The district director will make
arrangements for the miner to be given a complete pulmonary evaluation
by that facility or physician. The results of the complete pulmonary
evaluation shall not be counted as evidence submitted by the miner
under Sec. 725.414.
(c) If any medical examination or test conducted under paragraph
(a) of this section is not administered or reported in substantial
compliance with the provisions of part 718 of this subchapter, or does
not provide sufficient information to allow the district director to
decide whether the miner is eligible for benefits, the district
director shall schedule the miner for further examination and testing.
Where the deficiencies in the report are the result of a lack of effort
on the part of the miner, the miner will be afforded one additional
opportunity to produce a satisfactory result. In order to determine
whether any medical examination or test was administered and reported
in substantial compliance with the provisions of part 718 of this
subchapter, the district director may have any component of such
examination or test reviewed by a physician selected by the district
director.
(d) After the physician completes the report authorized by
paragraph (a), the district director will inform the miner that he may
elect to have the results of the objective testing sent to his treating
physician for use in preparing a medical opinion. The district director
will also inform the claimant that any medical opinion submitted by his
treating physician will count as one of the two medical opinions that
the miner may submit under Sec. 725.414 of this part.
(e) The cost of any medical examination or test authorized under
this section, including the cost of travel to and from the examination,
shall be paid by the fund. No reimbursement for overnight
accommodations shall be authorized unless the district director
determines that an adequate testing facility is unavailable within one
day's round trip travel by automobile from the miner's residence. The
fund shall be reimbursed for such payments by an operator, if any,
found liable for the payment of benefits to the claimant. If an
operator fails to repay such expenses, with interest, upon request of
the Office, the entire amount may be collected in
[[Page 80073]]
an action brought under section 424 of the Act and Sec. 725.603 of this
part.
Sec. 725.407 Identification and notification of responsible operator.
(a) Upon receipt of the miner's employment history, the district
director shall investigate whether any operator may be held liable for
the payment of benefits as a responsible operator in accordance with
the criteria contained in Subpart G of this part.
(b) The district director may identify one or more operators
potentially liable for the payment of benefits in accordance with the
criteria set forth in Sec. 725.495 of this part. The district director
shall notify each such operator of the existence of the claim. Where
the records maintained by the Office pursuant to part 726 of this
subchapter indicate that the operator had obtained a policy of
insurance, and the claim falls within such policy, the notice provided
pursuant to this section shall also be sent to the operator's carrier.
Any operator or carrier notified of the claim shall thereafter be
considered a party to the claim in accordance with Sec. 725.360 of this
part unless it is dismissed by an adjudication officer and is not
thereafter notified again of its potential liability.
(c) The notification issued pursuant to this section shall include
a copy of the claimant's application and a copy of all evidence
obtained by the district director relating to the miner's employment.
The district director may request the operator to answer specific
questions, including, but not limited to, questions related to the
nature of its operations, its relationship with the miner, its
financial status, including any insurance obtained to secure its
obligations under the Act, and its relationship with other potentially
liable operators. A copy of any notification issued pursuant to this
section shall be sent to the claimant by regular mail.
(d) If at any time before a case is referred to the Office of
Administrative Law Judges, the district director determines that an
operator which may be liable for the payment of benefits has not been
notified under this section or has been incorrectly dismissed pursuant
to Sec. 725.410(a)(3), the district director shall give such operator
notice of its potential liability in accordance with this section. The
adjudication officer shall then take such further action on the claim
as may be appropriate. There shall be no time limit applicable to a
later identification of an operator under this paragraph if the
operator fraudulently concealed its identity as an employer of the
miner. The district director may not notify additional operators of
their potential liability after a case has been referred to the Office
of Administrative Law Judges, unless the case was referred for a
hearing to determine whether the claim was properly denied as abandoned
pursuant to Sec. 725.409.
Sec. 725.408 Operator's response to notification.
(a)(1) An operator which receives notification under Sec. 725.407
shall, within 30 days of receipt, file a response indicating its intent
to accept or contest its identification as a potentially liable
operator. The operator's response shall also be sent to the claimant by
regular mail.
(2) If the operator contests its identification, it shall, on a
form supplied by the district director, state the precise nature of its
disagreement by admitting or denying each of the following assertions.
In answering these assertions, the term ``operator'' shall include any
operator for which the identified operator may be considered a
successor operator pursuant to Sec. 725.492.
(i) That the named operator was an operator for any period after
June 30, 1973;
(ii) That the operator employed the miner as a miner for a
cumulative period of not less than one year;
(iii) That the miner was exposed to coal mine dust while working
for the operator;
(iv) That the miner's employment with the operator included at
least one working day after December 31, 1969; and
(v) That the operator is capable of assuming liability for the
payment of benefits.
(3) An operator which receives notification under Sec. 725.407, and
which fails to file a response within the time limit provided by this
section, shall not be allowed to contest its liability for the payment
of benefits on any of the grounds set forth in paragraph (a)(2).
(b)(1) Within 90 days of the date on which it receives notification
under Sec. 725.407, an operator may submit documentary evidence in
support of its position.
(2) No documentary evidence relevant to the grounds set forth in
paragraph (a)(2) may be admitted in any further proceedings unless it
is submitted within the time limits set forth in this section.
Sec. 725.409 Denial of a claim by reason of abandonment.
(a) A claim may be denied at any time by the district director by
reason of abandonment where the claimant fails:
(1) To undergo a required medical examination without good cause;
or,
(2) To submit evidence sufficient to make a determination of the
claim; or,
(3) To pursue the claim with reasonable diligence; or,
(4) To attend an informal conference without good cause.
(b)(1) If the district director determines that a denial by reason
of abandonment under paragraphs (a)(1) through (3) of this section is
appropriate, he or she shall notify the claimant of the reasons for
such denial and of the action which must be taken to avoid a denial by
reason of abandonment. If the claimant completes the action requested
within the time allowed, the claim shall be developed, processed and
adjudicated as specified in this part. If the claimant does not fully
comply with the action requested by the district director, the district
director shall notify the claimant that the claim has been denied by
reason of abandonment. Such notification shall be served on the
claimant and all other parties to the claim by certified mail.
(2) In any case in which a claimant has failed to attend an
informal conference and has not provided the district director with his
reasons for failing to attend, the district director shall ask the
claimant to explain his absence. In considering whether the claimant
had good cause for his failure to attend the conference, the district
director shall consider all relevant circumstances, including the age,
education, and health of the claimant, as well as the distance between
the claimant's residence and the location of the conference. If the
district director concludes that the claimant had good cause for
failing to attend the conference, he may continue processing the claim,
including, where appropriate under Sec. 725.416, the scheduling of an
informal conference. If the claimant does not supply the district
director with his reasons for failing to attend the conference within
30 days of the date of the district director's request, or the district
director concludes that the reasons supplied by the claimant do not
establish good cause, the district director shall notify the claimant
that the claim has been denied by reason of abandonment. Such
notification shall be served on the claimant and all other parties to
the claim by certified mail.
(c) The denial of a claim by reason of abandonment shall become
effective and final unless, within 30 days after the denial is issued,
the claimant requests a hearing. Following the expiration of the 30-day
period, a new claim may be filed at any time pursuant to Sec. 725.309.
For purposes of Sec. 725.309,
[[Page 80074]]
a denial by reason of abandonment shall be deemed a finding that the
claimant has not established any applicable condition of entitlement.
If the claimant timely requests a hearing, the district director shall
refer the case to the Office of Administrative Law Judges in accordance
with Sec. 725.421. Except upon the motion or written agreement of the
Director, the hearing will be limited to the issue of whether the claim
was properly denied by reason of abandonment. If the hearing is limited
to the issue of abandonment and the administrative law judge determines
that the claim was not properly denied by reason of abandonment, he
shall remand the claim to the district director for the completion of
administrative processing.
Sec. 725.410 Submission of additional evidence.
(a) After the district director completes the development of
medical evidence under Sec. 725.405 of this part, including the
complete pulmonary evaluation authorized by Sec. 725.406, and receives
the responses and evidence submitted pursuant to Sec. 725.408, he shall
issue a schedule for the submission of additional evidence. The
schedule shall contain the following information:
(1) If the claim was filed by, or on behalf of, a miner, the
schedule shall contain a summary of the complete pulmonary evaluation
administered pursuant to Sec. 725.406. If the claim was filed by, or on
behalf of, a survivor, the schedule shall contain a summary of any
medical evidence developed by the district director pursuant to
Sec. 725.405(c).
(2) The schedule shall contain the district director's preliminary
analysis of the medical evidence. If the district director believes
that the evidence fails to establish any necessary element of
entitlement, he shall inform the claimant of the element of entitlement
not established and the reasons for his conclusions and advise the
claimant that, unless he submits additional evidence, the district
director will issue a proposed decision and order denying the claim.
(3) The schedule shall contain the district director's designation
of a responsible operator liable for the payment of benefits. In the
event that the district director has designated as the responsible
operator an employer other than the employer who last employed the
claimant as a miner, the district director shall include, with the
schedule, a copy of the statements required by Sec. 725.495(d) of this
part. The district director may, in his discretion, dismiss as parties
any of the operators notified of their potential liability pursuant to
Sec. 725.407. If the district director thereafter determines that the
participation of a party dismissed pursuant to this section is
required, he may once again notify the operator in accordance with
Sec. 725.407(d).
(4) The schedule shall notify the claimant and the designated
responsible operator that they have the right to obtain further
adjudication of the claim in accordance with this subpart, and that
they have the right to submit additional evidence in accordance with
this subpart. The schedule shall also notify the claimant that he has
the right to obtain representation, under the terms set forth in
subpart D, in order to assist him. In a case in which the district
director has designated a responsible operator pursuant to paragraph
(a)(3), the schedule shall further notify the claimant that if the
operator fails to accept the claimant's entitlement to benefits within
the time limit provided by Sec. 725.412, the cost of obtaining
additional medical and other necessary evidence, along with a
reasonable attorney's fee, shall be reimbursed by the responsible
operator in the event that the claimant establishes his entitlement to
benefits payable by that operator. In a case in which there is no
operator liable for the payment of benefits, the schedule shall notify
the claimant that the cost of obtaining additional medical and other
necessary evidence, along with a reasonable attorney's fee, shall be
reimbursed by the fund.
(b) The schedule shall allow all parties not less than 60 days
within which to submit additional evidence, including evidence relevant
to the claimant's eligibility for benefits and evidence relevant to the
liability of the designated responsible operator, and shall provide not
less than an additional 30 days within which the parties may respond to
evidence submitted by other parties. Any such evidence must meet the
requirements set forth in Sec. 725.414 in order to be admitted into the
record.
(c) The district director shall serve a copy of the schedule,
together with a copy of all of the evidence developed, on the claimant,
the designated responsible operator, and all other operators which
received notification pursuant to Sec. 725.407. The schedule shall be
served on each party by certified mail.
Sec. 725.411 Initial adjudication in Trust Fund cases.
Notwithstanding the requirements of Sec. 725.410 of this part, if
the district director concludes that the results of the complete
pulmonary evaluation support a finding of eligibility, and that there
is no operator responsible for the payment of benefits, the district
director shall issue a proposed decision and order in accordance with
Sec. 725.418 of this part.
Sec. 725.412 Operator's response.
(a)(1) Within 30 days after the district director issues a schedule
pursuant to Sec. 725.410 of this part containing a designation of the
responsible operator liable for the payment of benefits, that operator
shall file a response with regard to its liability. The response shall
specifically indicate whether the operator agrees or disagrees with the
district director's designation.
(2) If the responsible operator designated by the district director
does not file a timely response, it shall be deemed to have accepted
the district director's designation with respect to its liability, and
to have waived its right to contest its liability in any further
proceeding conducted with respect to the claim.
(b) The responsible operator designated by the district director
may also file a statement accepting claimant's entitlement to benefits.
If that operator fails to file a timely response to the district
director's designation, the district director shall, upon receipt of
such a statement, issue a proposed decision and order in accordance
with Sec. 725.418 of this part. If the operator fails to file a
statement accepting the claimant's entitlement to benefits within 30
days after the district director issues a schedule pursuant to
Sec. 725.410 of this part, the operator shall be deemed to have
contested the claimant's entitlement.
Sec. 725.413 [Reserved].
Sec. 725.414 Development of evidence.
(a) Medical evidence.
(1) For purposes of this section, a medical report shall consist of
a physician's written assessment of the miner's respiratory or
pulmonary condition. A medical report may be prepared by a physician
who examined the miner and/or reviewed the available admissible
evidence. A physician's written assessment of a single objective test,
such as a chest X-ray or a pulmonary function test, shall not be
considered a medical report for purposes of this section.
(2)(i) The claimant shall be entitled to submit, in support of his
affirmative case, no more than two chest X-ray interpretations, the
results of no more than two pulmonary function tests, the results of no
more than two arterial
[[Page 80075]]
blood gas studies, no more than one report of an autopsy, no more than
one report of each biopsy, and no more than two medical reports. Any
chest X-ray interpretations, pulmonary function test results, blood gas
studies, autopsy report, biopsy report, and physicians' opinions that
appear in a medical report must each be admissible under this paragraph
or paragraph (a)(4) of this section.
(ii) The claimant shall be entitled to submit, in rebuttal of the
case presented by the party opposing entitlement, no more than one
physician's interpretation of each chest X-ray, pulmonary function
test, arterial blood gas study, autopsy or biopsy submitted by the
designated responsible operator or the fund, as appropriate, under
paragraph (a)(3)(i) or (a)(3)(iii) of this section and by the Director
pursuant to Sec. 725.406. In any case in which the party opposing
entitlement has submitted the results of other testing pursuant to
Sec. 718.107, the claimant shall be entitled to submit one physician's
assessment of each piece of such evidence in rebuttal. In addition,
where the responsible operator or fund has submitted rebuttal evidence
under paragraph (a)(3)(ii) or (a)(3)(iii) of this section with respect
to medical testing submitted by the claimant, the claimant shall be
entitled to submit an additional statement from the physician who
originally interpreted the chest X-ray or administered the objective
testing. Where the rebuttal evidence tends to undermine the conclusion
of a physician who prepared a medical report submitted by the claimant,
the claimant shall be entitled to submit an additional statement from
the physician who prepared the medical report explaining his conclusion
in light of the rebuttal evidence.
(3)(i) The responsible operator designated pursuant to Sec. 725.410
shall be entitled to obtain and submit, in support of its affirmative
case, no more than two chest X-ray interpretations, the results of no
more than two pulmonary function tests, the results of no more than two
arterial blood gas studies, no more than one report of an autopsy, no
more than one report of each biopsy, and no more than two medical
reports. Any chest X-ray interpretations, pulmonary function test
results, blood gas studies, autopsy report, biopsy report, and
physicians' opinions that appear in a medical report must each be
admissible under this paragraph or paragraph (a)(4) of this section. In
obtaining such evidence, the responsible operator may not require the
miner to travel more than 100 miles from his or her place of residence,
or the distance traveled by the miner in obtaining the complete
pulmonary evaluation provided by Sec. 725.406 of this part, whichever
is greater, unless a trip of greater distance is authorized in writing
by the district director. If a miner unreasonably refuses--
(A) To provide the Office or the designated responsible operator
with a complete statement of his or her medical history and/or to
authorize access to his or her medical records, or
(B) To submit to an evaluation or test requested by the district
director or the designated responsible operator, the miner's claim may
be denied by reason of abandonment. (See Sec. 725.409 of this part).
(ii) The responsible operator shall be entitled to submit, in
rebuttal of the case presented by the claimant, no more than one
physician's interpretation of each chest X-ray, pulmonary function
test, arterial blood gas study, autopsy or biopsy submitted by the
claimant under paragraph (a)(2)(i) of this section and by the Director
pursuant to Sec. 725.406. In any case in which the claimant has
submitted the results of other testing pursuant to Sec. 718.107, the
responsible operator shall be entitled to submit one physician's
assessment of each piece of such evidence in rebuttal. In addition,
where the claimant has submitted rebuttal evidence under paragraph
(a)(2)(ii) of this section, the responsible operator shall be entitled
to submit an additional statement from the physician who originally
interpreted the chest X-ray or administered the objective testing.
Where the rebuttal evidence tends to undermine the conclusion of a
physician who prepared a medical report submitted by the responsible
operator, the responsible operator shall be entitled to submit an
additional statement from the physician who prepared the medical report
explaining his conclusion in light of the rebuttal evidence.
(iii) In a case in which the district director has not identified
any potentially liable operators, or has dismissed all potentially
liable operators under Sec. 725.410(a)(3), the district director shall
be entitled to exercise the rights of a responsible operator under this
section, except that the evidence obtained in connection with the
complete pulmonary evaluation performed pursuant to Sec. 725.406 shall
be considered evidence obtained and submitted by the Director, OWCP,
for purposes of paragraph (a)(3)(i) of this section. In a case
involving a dispute concerning medical benefits under Sec. 725.708 of
this part, the district director shall be entitled to develop medical
evidence to determine whether the medical bill is compensable under the
standard set forth in Sec. 725.701 of this part.
(4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(3)
of this section, any record of a miner's hospitalization for a
respiratory or pulmonary or related disease, or medical treatment for a
respiratory or pulmonary or related disease, may be received into
evidence.
(5) A copy of any documentary evidence submitted by a party must be
served on all other parties to the claim. If the claimant is not
represented by an attorney, the district director shall mail a copy of
all documentary evidence submitted by the claimant to all other parties
to the claim. Following the development and submission of affirmative
medical evidence, the parties may submit rebuttal evidence in
accordance with the schedule issued by the district director.
(b) Evidence pertaining to liability. (1) Except as provided by
Sec. 725.408(b)(2), the designated responsible operator may submit
evidence to demonstrate that it is not the potentially liable operator
that most recently employed the claimant.
(2) Any other party may submit evidence regarding the liability of
the designated responsible operator or any other operator.
(3) A copy of any documentary evidence submitted under this
paragraph must be mailed to all other parties to the claim. Following
the submission of affirmative evidence, the parties may submit rebuttal
evidence in accordance with the schedule issued by the district
director.
(c) Testimony. A physician who prepared a medical report admitted
under this section may testify with respect to the claim at any formal
hearing conducted in accordance with subpart F of this part, or by
deposition. If a party has submitted fewer than two medical reports as
part of that party's affirmative case under this section, a physician
who did not prepare a medical report may testify in lieu of such a
medical report. The testimony of such a physician shall be considered a
medical report for purposes of the limitations provided by this
section. A party may offer the testimony of no more than two physicians
under the provisions of this section unless the adjudication officer
finds good cause under paragraph (b)(1) of Sec. 725.456 of this part.
In accordance with the schedule issued by the district director, all
parties shall notify the district director of the name and current
address of any potential witness whose testimony pertains to the
liability of a potentially liable operator or the
[[Page 80076]]
designated responsible operator. Absent such notice, the testimony of a
witness relevant to the liability of a potentially liable operator or
the designated responsible operator shall not be admitted in any
hearing conducted with respect to the claim unless the administrative
law judge finds that the lack of notice should be excused due to
extraordinary circumstances.
(d) Except to the extent permitted by Sec. 725.456 and
Sec. 725.310(b), the limitations set forth in this section shall apply
to all proceedings conducted with respect to a claim, and no
documentary evidence pertaining to liability shall be admitted in any
further proceeding conducted with respect to a claim unless it is
submitted to the district director in accordance with this section.
Sec. 725.415 Action by the district director after development of
evidence.
(a) At the end of the period permitted under Sec. 725.410(b) for
the submission of evidence, the district director shall review the
claim on the basis of all evidence submitted in accordance with
Sec. 725.414.
(b) After review of all evidence submitted, the district director
may issue another schedule for the submission of additional evidence
pursuant to Sec. 725.410, identifying another potentially liable
operator as the responsible operator liable for the payment of
benefits. In such a case, the district director shall not permit the
development or submission of any additional medical evidence until
after he has made a final determination of the identity of the
responsible operator liable for the payment of benefits. If the
operator who is finally determined to be the responsible operator has
not had the opportunity to submit medical evidence pursuant to
Sec. 725.410, the district director shall allow the designated
responsible operator and the claimant not less than 60 days within
which to submit evidence relevant to the claimant's eligibility for
benefits. The designated responsible operator may elect to adopt any
medical evidence previously submitted by another operator as its own
evidence, subject to the limitations of Sec. 725.414. The district
director may also schedule a conference in accordance with
Sec. 725.416, issue a proposed decision and order in accordance with
Sec. 725.418, or take such other action as the district director
considers appropriate.
Sec. 725.416 Conferences.
(a) At the conclusion of the period permitted by Sec. 725.410(b) of
this part for the submission of evidence, the district director may
conduct an informal conference in any claim where it appears that such
conference will assist in the voluntary resolution of any issue raised
with respect to the claim. The conference proceedings shall not be
stenographically reported and sworn testimony shall not be taken. Any
conference conducted pursuant to this paragraph shall be held no later
than 90 days after the conclusion of the period permitted by
Sec. 725.410(b) of this part for the submission of evidence, unless one
of the parties requests that the time period be extended for good cause
shown. If the district director is unable to hold the conference within
the time period permitted by this paragraph, he shall proceed to issue
a proposed decision and order under Sec. 725.418 of this part.
(b) The district director shall notify the parties of a definite
time and place for the conference. The district director shall advise
the parties that they have a right to representation at the conference,
by an attorney or a lay representative, and that no conference shall
take place unless the parties are represented. A coal mine operator
which is self-insured, or which is covered by a policy of insurance for
the claim for which a conference is scheduled, shall be deemed to be
represented. The notification shall set forth the specific reasons why
the district director believes that a conference will assist in the
voluntary resolution of any issue raised with respect to the claim. No
sanction may be imposed under paragraph (c) of this section unless the
record contains a notification that meets the requirements of this
section. The district director may in his or her discretion, or on the
motion of any party, cancel a conference or allow any or all of the
parties to participate by telephone.
(c) The unexcused failure of any party to appear at an informal
conference shall be grounds for the imposition of sanctions. If the
claimant fails to appear, the district director may take such steps as
are authorized by Sec. 725.409(b)(2) to deny the claim by reason of
abandonment. If the responsible operator fails to appear, it shall be
deemed to have waived its right to contest its potential liability for
an award of benefits and, in the discretion of the district director,
its right to contest any issue related to the claimant's eligibility.
(d) Any representative of an operator, of an operator's insurance
carrier, or of a claimant, authorized to represent such party in
accordance with paragraph (b), shall be deemed to have sufficient
authority to stipulate facts or issues or agree to a final disposition
of the claim.
(e) Procedures to be followed at a conference shall be within the
discretion of the district director.
Sec. 725.417 Action at the conclusion of conference.
(a) At the conclusion of a conference, the district director shall
prepare a stipulation of contested and uncontested issues which shall
be signed by the parties and the district director. If a hearing is
conducted with respect to the claim, this stipulation shall be
submitted to the Office of Administrative Law Judges and placed in the
claim record.
(b) In appropriate cases, the district director may permit a
reasonable time for the submission of additional evidence following a
conference, provided that such evidence does not exceed the limits set
forth in Sec. 725.414. The district director may also notify additional
operators of their potential liability pursuant to Sec. 725.407, or
issue another schedule for the submission of additional evidence
pursuant to Sec. 725.410, designating another potentially liable
operator as the responsible operator liable for the payment of
benefits, in order to allow that operator an opportunity to submit
evidence relevant to its liability for benefits as well as the
claimant's eligibility for benefits.
(c) Within 20 days after the termination of all conference
proceedings, the district director shall prepare and send to the
parties a proposed decision and order pursuant to Sec. 725.418 of this
part.
Sec. 725.418 Proposed decision and order.
(a) Within 20 days after the termination of all informal conference
proceedings, or, if no informal conference is held, at the conclusion
of the period permitted by Sec. 725.410(b) for the submission of
evidence, the district director shall issue a proposed decision and
order. A proposed decision and order is a document, issued by the
district director after the evidentiary development of the claim is
completed and all contested issues, if any, are joined, which purports
to resolve a claim on the basis of the evidence submitted to or
obtained by the district director. A proposed decision and order shall
be considered a final adjudication of a claim only as provided in
Sec. 725.419. A proposed decision and order may be issued by the
district director at any time during the adjudication of any claim if:
(1) Issuance is authorized or required by this part; or,
[[Page 80077]]
(2) The district director determines that its issuance will
expedite the adjudication of the claim.
(b) A proposed decision and order shall contain findings of fact
and conclusions of law. It shall be served on all parties to the claim
by certified mail.
(c) The proposed decision and order shall contain a notice of the
right of any interested party to request a formal hearing before the
Office of Administrative Law Judges. If the proposed decision and order
is a denial of benefits, and the claimant has previously filed a
request for a hearing, the proposed decision and order shall notify the
claimant that the case will be referred for a hearing pursuant to the
previous request unless the claimant notifies the district director
that he no longer desires a hearing. If the proposed decision and order
is an award of benefits, and the designated responsible operator has
previously filed a request for a hearing, the proposed decision and
order shall notify the operator that the case will be referred for a
hearing pursuant to the previous request unless the operator notifies
the district director that it no longer desires a hearing.
(d) The proposed decision and order shall reflect the district
director's final designation of the responsible operator liable for the
payment of benefits. No operator may be finally designated as the
responsible operator unless it has received notification of its
potential liability pursuant to Sec. 725.407, and the opportunity to
submit additional evidence pursuant to Sec. 725.410. The district
director shall dismiss, as parties to the claim, all other potentially
liable operators that received notification pursuant to Sec. 725.407
and that were not previously dismissed pursuant to Sec. 725.410(a)(3).
Sec. 725.419 Response to proposed decision and order.
(a) Within 30 days after the date of issuance of a proposed
decision and order, any party may, in writing, request a revision of
the proposed decision and order or a hearing. If a hearing is
requested, the district director shall refer the claim to the Office of
Administrative Law Judges (see Sec. 725.421).
(b) Any response made by a party to a proposed decision and order
shall specify the findings and conclusions with which the responding
party disagrees, and shall be served on the district director and all
other parties to the claim.
(c) If a timely request for revision of a proposed decision and
order is made, the district director may amend the proposed decision
and order, as circumstances require, and serve the revised proposed
decision and order on all parties or take such other action as is
appropriate. If a revised proposed decision and order is issued, each
party to the claim shall have 30 days from the date of issuance of that
revised proposed decision and order within which to request a hearing.
(d) If no response to a proposed decision and order is sent to the
district director within the period described in paragraph (a) of this
section, or if no response to a revised proposed decision and order is
sent to the district director within the period described in paragraph
(c) of this section, the proposed decision and order shall become a
final decision and order, which is effective upon the expiration of the
applicable 30-day period. Once a proposed decision and order or revised
proposed decision and order becomes final and effective, all rights to
further proceedings with respect to the claim shall be considered
waived, except as provided in Sec. 725.310.
Sec. 725.420 Initial determinations.
(a) Section 9501(d)(1)(A)(1) of the Internal Revenue Code (26
U.S.C.) provides that the Black Lung Disability Trust Fund shall begin
the payment of benefits on behalf of an operator in any case in which
the operator liable for such payments has not commenced payment of such
benefits within 30 days after the date of an initial determination of
eligibility by the Secretary. For claims filed on or after January 1,
1982, the payment of such interim benefits from the fund is limited to
benefits accruing after the date of such initial determination.
(b) Except as provided in Sec. 725.415, after the district director
has determined that a claimant is eligible for benefits, on the basis
of all evidence submitted by a claimant and operator, and has
determined that a hearing will be necessary to resolve the claim, the
district director shall in writing so inform the parties and direct the
operator to begin the payment of benefits to the claimant in accordance
with Sec. 725.522. The date on which this writing is sent to the
parties shall be considered the date of initial determination of the
claim.
(c) If a notified operator refuses to commence payment of a claim
within 30 days from the date on which an initial determination is made
under this section, benefits shall be paid by the fund to the claimant
in accordance with Sec. 725.522, and the operator shall be liable to
the fund, if such operator is determined liable for the claim, for all
benefits paid by the fund on behalf of such operator, and, in addition,
such penalties and interest as are appropriate.
Sec. 725.421 Referral of a claim to the Office of Administrative Law
Judges.
(a) In any claim for which a formal hearing is requested or
ordered, and with respect to which the district director has completed
evidentiary development and adjudication without having resolved all
contested issues, the district director shall refer the claim to the
Office of Administrative Law Judges for a hearing.
(b) In any case referred to the Office of Administrative Law Judges
under this section, the district director shall transmit to that office
the following documents, which shall be placed in the record at the
hearing subject to the objection of any party:
(1) Copies of the claim form or forms;
(2) Any statement, document, or pleading submitted by a party to
the claim;
(3) A copy of the notification to an operator of its possible
liability for the claim, and any schedule for the submission of
additional evidence issued pursuant to Sec. 725.410 designating a
potentially liable operator as the responsible operator;
(4) All medical evidence submitted to the district director under
this part by the claimant and the potentially liable operator
designated as the responsible operator in the proposed decision and
order issued pursuant to Sec. 725.418, or the fund, as appropriate,
subject to the limitations of Sec. 725.414 of this part; this evidence
shall include the results of any medical examination or test conducted
pursuant to Sec. 725.406, and all evidence relevant to the liability of
the responsible operator submitted to the district director under this
part;
(5) Any written stipulation of law or fact or stipulation of
contested and uncontested issues entered into by the parties;
(6) Any pertinent forms submitted to the district director;
(7) The statement by the district director of contested and
uncontested issues in the claim; and
(8) The district director's initial determination of eligibility or
other documents necessary to establish the right of the fund to
reimbursement, if appropriate. Copies of the transmittal notice shall
also be sent to all parties to the claim by regular mail.
(c) A party may at any time request and obtain from the district
director copies of documents transmitted to the Office of
Administrative Law Judges under paragraph (b) of this section. If the
party has previously been provided with such documents, additional
copies
[[Page 80078]]
may be sent to the party upon the payment of a copying fee to be
determined by the district director.
Sec. 725.422 Legal assistance.
The Secretary or his or her designee may, upon request, provide a
claimant with legal assistance in processing a claim under the Act.
Such assistance may be made available to a claimant in the discretion
of the Solicitor of Labor or his or her designee at any time prior to
or during the time in which the claim is being adjudicated and shall be
furnished without charge to the claimant. Representation of a claimant
in adjudicatory proceedings shall not be provided by the Department of
Labor unless it is determined by the Solicitor of Labor that such
representation is in the best interests of the black lung benefits
program. In no event shall representation be provided to a claimant in
a claim with respect to which the claimant's interests are adverse to
those of the Secretary of Labor or the fund.
Sec. 725.423 Extensions of time.
Except for the 30-day time limit set forth in Sec. 725.419, any of
the time periods set forth in this subpart may be extended, for good
cause shown, by filing a request for an extension with the district
director prior to the expiration of the time period.
Subpart F--Hearings
Sec. 725.450 Right to a hearing.
Any party to a claim (see Sec. 725.360) shall have a right to a
hearing concerning any contested issue of fact or law unresolved by the
district director. There shall be no right to a hearing until the
processing and adjudication of the claim by the district director has
been completed. There shall be no right to a hearing in a claim with
respect to which a determination of the claim made by the district
director has become final and effective in accordance with this part.
Sec. 725.451 Request for hearing.
After the completion of proceedings before the district director,
or as is otherwise indicated in this part, any party may in writing
request a hearing on any contested issue of fact or law (see
Sec. 725.419). A district director may on his or her own initiative
refer a case for hearing. If a hearing is requested, or if a district
director determines that a hearing is necessary to the resolution of
any issue, the claim shall be referred to the Chief Administrative Law
Judge for a hearing under Sec. 725.421.
Sec. 725.452 Type of hearing; parties.
(a) A hearing held under this part shall be conducted by an
administrative law judge designated by the Chief Administrative Law
Judge. Except as otherwise provided by this part, all hearings shall be
conducted in accordance with the provisions of 5 U.S.C. 554 et seq.
(b) All parties to a claim shall be permitted to participate fully
at a hearing held in connection with such claim.
(c) A full evidentiary hearing need not be conducted if a party
moves for summary judgment and the administrative law judge determines
that there is no genuine issue as to any material fact and that the
moving party is entitled to the relief requested as a matter of law.
All parties shall be entitled to respond to the motion for summary
judgment prior to decision thereon.
(d) If the administrative law judge believes that an oral hearing
is not necessary (for any reason other than on motion for summary
judgment), the judge shall notify the parties by written order and
allow at least 30 days for the parties to respond. The administrative
law judge shall hold the oral hearing if any party makes a timely
request in response to the order.
Sec. 725.453 Notice of hearing.
All parties shall be given at least 30 days written notice of the
date and place of a hearing and the issues to be resolved at the
hearing. Such notice shall be sent to each party or representative by
certified mail.
Sec. 725.454 Time and place of hearing; transfer of cases.
(a) The Chief Administrative Law Judge shall assign a definite time
and place for a formal hearing, and shall, where possible, schedule the
hearing to be held at a place within 75 miles of the claimant's
residence unless an alternate location is requested by the claimant.
(b) If the claimant's residence is not in any State, the Chief
Administrative Law Judge may, in his or her discretion, schedule the
hearing in the country of the claimant's residence.
(c) The Chief Administrative Law Judge or the administrative law
judge assigned the case may in his or her discretion direct that a
hearing with respect to a claim shall begin at one location and then
later be reconvened at another date and place.
(d) The Chief Administrative Law Judge or administrative law judge
assigned the case may change the time and place for a hearing, either
on his or her own motion or for good cause shown by a party. The
administrative law judge may adjourn or postpone the hearing for good
cause shown, at any time prior to the mailing to the parties of the
decision in the case. Unless otherwise agreed, at least 10 days notice
shall be given to the parties of any change in the time or place of
hearing.
(e) The Chief Administrative Law Judge may for good cause shown
transfer a case from one administrative law judge to another.
Sec. 725.455 Hearing procedures; generally.
(a) General. The purpose of any hearing conducted under this
subpart shall be to resolve contested issues of fact or law. Except as
provided in Sec. 725.421(b)(8), any findings or determinations made
with respect to a claim by a district director shall not be considered
by the administrative law judge.
(b) Evidence. The administrative law judge shall at the hearing
inquire fully into all matters at issue, and shall not be bound by
common law or statutory rules of evidence, or by technical or formal
rules of procedure, except as provided by 5 U.S.C. 554 and this
subpart. The administrative law judge shall receive into evidence the
testimony of the witnesses and parties, the evidence submitted to the
Office of Administrative Law Judges by the district director under
Sec. 725.421, and such additional evidence as may be submitted in
accordance with the provisions of this subpart. The administrative law
judge may entertain the objections of any party to the evidence
submitted under this section.
(c) Procedure. The conduct of the hearing and the order in which
allegations and evidence shall be presented shall be within the
discretion of the administrative law judge and shall afford the parties
an opportunity for a fair hearing.
(d) Oral argument and written allegations. The parties, upon
request, may be allowed a reasonable time for the presentation of oral
argument at the hearing. Briefs or other written statements or
allegations as to facts or law may be filed by any party with the
permission of the administrative law judge. Copies of any brief or
other written statement shall be filed with the administrative law
judge and served on all parties by the submitting party.
Sec. 725.456 Introduction of documentary evidence.
(a) All documents transmitted to the Office of Administrative Law
Judges under Sec. 725.421 shall be placed into evidence by the
administrative law judge, subject to objection by any party.
[[Page 80079]]
(b)(1) Documentary evidence pertaining to the liability of a
potentially liable operator and/or the identification of a responsible
operator which was not submitted to the district director shall not be
admitted into the hearing record in the absence of extraordinary
circumstances. Medical evidence in excess of the limitations contained
in Sec. 725.414 shall not be admitted into the hearing record in the
absence of good cause.
(2) Subject to the limitations in paragraph (b)(1) of this section,
any other documentary material, including medical reports, which was
not submitted to the district director, may be received in evidence
subject to the objection of any party, if such evidence is sent to all
other parties at least 20 days before a hearing is held in connection
with the claim.
(3) Documentary evidence, which is not exchanged with the parties
in accordance with this paragraph, may be admitted at the hearing with
the written consent of the parties or on the record at the hearing, or
upon a showing of good cause why such evidence was not exchanged in
accordance with this paragraph. If documentary evidence is not
exchanged in accordance with paragraph (b)(2) of this section and the
parties do not waive the 20-day requirement or good cause is not shown,
the administrative law judge shall either exclude the late evidence
from the record or remand the claim to the district director for
consideration of such evidence.
(4) A medical report which is not made available to the parties in
accordance with paragraph (b)(2) of this section shall not be admitted
into evidence in any case unless the hearing record is kept open for at
least 30 days after the hearing to permit the parties to take such
action as each considers appropriate in response to such evidence. If,
in the opinion of the administrative law judge, evidence is withheld
from the parties for the purpose of delaying the adjudication of the
claim, the administrative law judge may exclude such evidence from the
hearing record and close the record at the conclusion of the hearing.
(c) Subject to paragraph (b) of this section, documentary evidence
which the district director excludes from the record, and the
objections to such evidence, may be submitted by the parties to the
administrative law judge, who shall independently determine whether the
evidence shall be admitted.
(1) If the evidence is admitted, the administrative law judge may,
in his or her discretion, remand the claim to the district director for
further consideration.
(2) If the evidence is admitted, the administrative law judge shall
afford the opposing party or parties the opportunity to develop such
additional documentary evidence as is necessary to protect the right of
cross-examination.
(d) All medical records and reports submitted by any party shall be
considered by the administrative law judge in accordance with the
quality standards contained in part 718 of this subchapter.
(e) If the administrative law judge concludes that the complete
pulmonary evaluation provided pursuant to Sec. 725.406, or any part
thereof, fails to comply with the applicable quality standards, or
fails to address the relevant conditions of entitlement (see
Sec. 725.202(d)(2)(i) through (iv)) in a manner which permits
resolution of the claim, the administrative law judge shall, in his or
her discretion, remand the claim to the district director with
instructions to develop only such additional evidence as is required,
or allow the parties a reasonable time to obtain and submit such
evidence, before the termination of the hearing.
Sec. 725.457 Witnesses.
(a) Witnesses at the hearing shall testify under oath or
affirmation. The administrative law judge and the parties may question
witnesses with respect to any matters relevant and material to any
contested issue. Any party who intends to present the testimony of an
expert witness at a hearing, including any physician, regardless of
whether the physician has previously prepared a medical report, shall
so notify all other parties to the claim at least 10 days before the
hearing. The failure to give notice of the appearance of an expert
witness in accordance with this paragraph, unless notice is waived by
all parties, shall preclude the presentation of testimony by such
expert witness.
(b) No person shall be required to appear as a witness in any
proceeding before an administrative law judge at a place more than 100
miles from his or her place of residence, unless the lawful mileage and
witness fee for 1 day's attendance is paid in advance of the hearing
date.
(c) No person shall be permitted to testify as a witness at the
hearing, or pursuant to deposition or interrogatory under Sec. 725.458,
unless that person meets the requirements of Sec. 725.414(c).
(1) In the case of a witness offering testimony relevant to the
liability of the responsible operator, in the absence of extraordinary
circumstances, the witness must have been identified as a potential
hearing witness while the claim was pending before the district
director.
(2) In the case of a physician offering testimony relevant to the
physical condition of the miner, such physician must have prepared a
medical report. Alternatively, in the absence of a showing of good
cause under Sec. 725.456(b)(1) of this part, a physician may offer
testimony relevant to the physical condition of the miner only to the
extent that the party offering the physician's testimony has submitted
fewer medical reports than permitted by Sec. 725.414. Such physician's
opinion shall be considered a medical report subject to the limitations
of Sec. 725.414.
(d) A physician whose testimony is permitted under this section may
testify as to any other medical evidence of record, but shall not be
permitted to testify as to any medical evidence relevant to the miner's
condition that is not admissible.
Sec. 725.458 Depositions; interrogatories.
The testimony of any witness or party may be taken by deposition or
interrogatory according to the rules of practice of the Federal
district court for the judicial district in which the case is pending
(or of the U.S. District Court for the District of Columbia if the case
is pending in the District or outside the United States), except that
at least 30 days prior notice of any deposition shall be given to all
parties unless such notice is waived. No post-hearing deposition or
interrogatory shall be permitted unless authorized by the
administrative law judge upon the motion of a party to the claim. The
testimony of any physician which is taken by deposition shall be
subject to the limitations on the scope of the testimony contained in
Sec. 725.457(d).
Sec. 725.459 Witness fees.
(a) A witness testifying at a hearing before an administrative law
judge, or whose deposition is taken, shall receive the same fees and
mileage as witnesses in courts of the United States. If the witness is
an expert, he or she shall be entitled to an expert witness fee. Except
as provided in paragraphs (b) and (c) of this section, such fees shall
be paid by the proponent of the witness.
(b) If the witness' proponent does not intend to call the witness
to appear at a hearing or deposition, any other party may subpoena the
witness for cross-examination. The administrative law judge shall
authorize the least intrusive and expensive means of cross-examination
as he deems appropriate and necessary to the full and true
[[Page 80080]]
disclosure of facts. If such witness is required to attend the hearing,
give a deposition or respond to interrogatories for cross-examination
purposes, the proponent of the witness shall pay the witness' fee. If
the claimant is the proponent of the witness whose cross-examination is
sought, and demonstrates, within time limits established by the
administrative law judge, that he would be deprived of ordinary and
necessary living expenses if required to pay the witness fee and
mileage necessary to produce that witness for cross-examination, the
administrative law judge shall apportion the costs of such cross-
examination among the parties to the case. The administrative law judge
shall not apportion any costs against the fund in a case in which the
district director has designated a responsible operator, except that
the fund shall remain liable for any costs associated with the cross-
examination of the physician who performed the complete pulmonary
evaluation pursuant to Sec. 725.406.
(c) If a claimant is determined entitled to benefits, there may be
assessed as costs against a responsible operator, if any, or the fund,
fees and mileage for necessary witnesses attending the hearing at the
request of the claimant. Both the necessity for the witness and the
reasonableness of the fees of any expert witness shall be approved by
the administrative law judge. The amounts awarded against a responsible
operator or the fund as attorney's fees, or costs, fees and mileage for
witnesses, shall not in any respect affect or diminish benefits payable
under the Act.
(d) A claimant shall be considered to be deprived of funds required
for ordinary and necessary living expenses for purposes of paragraph
(b) of this section where payment of the projected fee and mileage
would meet the standards set forth at 20 CFR 404.508.
Sec. 725.460 Consolidated hearings.
When two or more hearings are to be held, and the same or
substantially similar evidence is relevant and material to the matters
at issue at each such hearing, the Chief Administrative Law Judge may,
upon motion by any party or on his or her own motion, order that a
consolidated hearing be conducted. Where consolidated hearings are
held, a single record of the proceedings shall be made and the evidence
introduced in one claim may be considered as introduced in the others,
and a separate or joint decision shall be made, as appropriate.
Sec. 725.461 Waiver of right to appear and present evidence.
(a) If all parties waive their right to appear before the
administrative law judge, it shall not be necessary for the
administrative law judge to give notice of, or conduct, an oral
hearing. A waiver of the right to appear shall be made in writing and
filed with the Chief Administrative Law Judge or the administrative law
judge assigned to hear the case. Such waiver may be withdrawn by a
party for good cause shown at any time prior to the mailing of the
decision in the claim. Even though all of the parties have filed a
waiver of the right to appear, the administrative law judge may,
nevertheless, after giving notice of the time and place, conduct a
hearing if he or she believes that the personal appearance and
testimony of the party or parties would assist in ascertaining the
facts in issue in the claim. Where a waiver has been filed by all
parties, and they do not appear before the administrative law judge
personally or by representative, the administrative law judge shall
make a record of the relevant documentary evidence submitted in
accordance with this part and any further written stipulations of the
parties. Such documents and stipulations shall be considered the
evidence of record in the case and the decision shall be based upon
such evidence.
(b) Except as provided in Sec. 725.456(a), the unexcused failure of
any party to attend a hearing shall constitute a waiver of such party's
right to present evidence at the hearing, and may result in a dismissal
of the claim (see Sec. 725.465).
Sec. 725.462 Withdrawal of controversion of issues set for formal
hearing; effect.
A party may, on the record, withdraw his or her controversion of
any or all issues set for hearing. If a party withdraws his or her
controversion of all issues, the administrative law judge shall remand
the case to the district director for the issuance of an appropriate
order.
Sec. 725.463 Issues to be resolved at hearing; new issues.
(a) Except as otherwise provided in this section, the hearing shall
be confined to those contested issues which have been identified by the
district director (see Sec. 725.421) or any other issue raised in
writing before the district director.
(b) An administrative law judge may consider a new issue only if
such issue was not reasonably ascertainable by the parties at the time
the claim was before the district director. Such new issue may be
raised upon application of any party, or upon an administrative law
judge's own motion, with notice to all parties, at any time after a
claim has been transmitted by the district director to the Office of
Administrative Law Judges and prior to decision by an administrative
law judge. If a new issue is raised, the administrative law judge may,
in his or her discretion, either remand the case to the district
director with instructions for further proceedings, hear and resolve
the new issue, or refuse to consider such new issue.
(c) If a new issue is to be considered by the administrative law
judge, a party may, upon request, be granted an appropriate
continuance.
Sec. 725.464 Record of hearing.
All hearings shall be open to the public and shall be mechanically
or stenographically reported. All evidence upon which the
administrative law judge relies for decision shall be contained in the
transcript of testimony, either directly or by appropriate reference.
All medical reports, exhibits, and any other pertinent document or
record, either in whole or in material part, introduced as evidence,
shall be marked for identification and incorporated into the record.
Sec. 725.465 Dismissals for cause.
(a) The administrative law judge may, at the request of any party,
or on his or her own motion, dismiss a claim:
(1) Upon the failure of the claimant or his or her representative
to attend a hearing without good cause;
(2) Upon the failure of the claimant to comply with a lawful order
of the administrative law judge; or
(3) Where there has been a prior final adjudication of the claim or
defense to the claim under the provisions of this subchapter and no new
evidence is submitted (except as provided in part 727 of this
subchapter; see Sec. 725.4(d)).
(b) A party who is not a proper party to the claim (see
Sec. 725.360) shall be dismissed by the administrative law judge. The
administrative law judge shall not dismiss the operator designated as
the responsible operator by the district director, except upon the
motion or written agreement of the Director.
(c) In any case where a dismissal of a claim, defense, or party is
sought, the administrative law judge shall issue an order to show cause
why the dismissal should not be granted and afford all parties a
reasonable time to respond to such order. After the time for response
has expired, the administrative law
[[Page 80081]]
judge shall take such action as is appropriate to rule on the
dismissal, which may include an order dismissing the claim, defense or
party.
(d) No claim shall be dismissed in a case with respect to which
payments prior to final adjudication have been made to the claimant in
accordance with Sec. 725.522, except upon the motion or written
agreement of the Director.
Sec. 725.466 Order of dismissal.
(a) An order dismissing a claim shall be served on the parties in
accordance with Sec. 725.478. The dismissal of a claim shall have the
same effect as a decision and order disposing of the claim on its
merits, except as provided in paragraph (b) of this section. Such order
shall advise the parties of their right to request review by the
Benefits Review Board.
(b) Where the Chief Administrative Law Judge or the presiding
administrative law judge issues a decision and order dismissing the
claim after a show cause proceeding, the district director shall
terminate any payments being made to the claimant under Sec. 725.522,
and the order of dismissal shall, if appropriate, order the claimant to
reimburse the fund for all benefits paid to the claimant.
Sec. 725.475 Termination of hearings.
Hearings are officially terminated when all the evidence has been
received, witnesses heard, pleadings and briefs submitted to the
administrative law judge, and the transcript of the proceedings has
been printed and delivered to the administrative law judge.
Sec. 725.476 Issuance of decision and order.
Within 20 days after the official termination of the hearing (see
Sec. 725.475), the administrative law judge shall issue a decision and
order with respect to the claim making an award to the claimant,
rejecting the claim, or taking such other action as is appropriate.
Sec. 725.477 Form and contents of decision and order.
(a) Orders adjudicating claims for benefits shall be designated by
the term ``decision and order'' or ``supplemental decision and order''
as appropriate, followed by a descriptive phrase designating the
particular type of order, such as ``award of benefits,'' ``rejection of
claim,'' ``suspension of benefits,'' ``modification of award.''
(b) A decision and order shall contain a statement of the basis of
the order, the names of the parties, findings of fact, conclusions of
law, and an award, rejection or other appropriate paragraph containing
the action of the administrative law judge, his or her signature and
the date of issuance. A decision and order shall be based upon the
record made before the administrative law judge.
Sec. 725.478 Filing and service of decision and order.
On the date of issuance of a decision and order under Sec. 725.477,
the administrative law judge shall serve the decision and order on all
parties to the claim by certified mail. On the same date, the original
record of the claim shall be sent to the DCMWC in Washington, D.C. Upon
receipt by the DCMWC, the decision and order shall be considered to be
filed in the office of the district director, and shall become
effective on that date.
Sec. 725.479 Finality of decisions and orders.
(a) A decision and order shall become effective when filed in the
office of the district director (see Sec. 725.478), and unless
proceedings for suspension or setting aside of such order are
instituted within 30 days of such filing, the order shall become final
at the expiration of the 30th day after such filing (see Sec. 725.481).
(b) Any party may, within 30 days after the filing of a decision
and order under Sec. 725.478, request a reconsideration of such
decision and order by the administrative law judge. The procedures to
be followed in the reconsideration of a decision and order shall be
determined by the administrative law judge.
(c) The time for appeal to the Benefits Review Board shall be
suspended during the consideration of a request for reconsideration.
After the administrative law judge has issued and filed a denial of the
request for reconsideration, or a revised decision and order in
accordance with this part, any dissatisfied party shall have 30 days
within which to institute proceedings to set aside the decision and
order on reconsideration.
(d) Regardless of any defect in service, actual receipt of the
decision is sufficient to commence the 30-day period for requesting
reconsideration or appealing the decision.
Sec. 725.480 Modification of decisions and orders.
A party who is dissatisfied with a decision and order which has
become final in accordance with Sec. 725.479 may request a modification
of the decision and order if the conditions set forth in Sec. 725.310
are met.
Sec. 725.481 Right to appeal to the Benefits Review Board.
Any party dissatisfied with a decision and order issued by an
administrative law judge may, before the decision and order becomes
final (see Sec. 725.479), appeal the decision and order to the Benefits
Review Board. A notice of appeal shall be filed with the Board.
Proceedings before the Board shall be conducted in accordance with part
802 of this title.
Sec. 725.482 Judicial review.
(a) Any person adversely affected or aggrieved by a final order of
the Benefits Review Board may obtain a review of that order in the U.S.
court of appeals for the circuit in which the injury occurred by filing
in such court within 60 days following the issuance of such Board order
a written petition praying that the order be modified or set aside. The
payment of the amounts required by an award shall not be stayed pending
final decision in any such proceeding unless ordered by the court. No
stay shall be issued unless the court finds that irreparable injury
would otherwise ensue to an operator or carrier.
(b) The Director, Office of Workers' Compensation Program, as
designee of the Secretary of Labor responsible for the administration
and enforcement of the Act, shall be considered the proper party to
appear and present argument on behalf of the Secretary of Labor in all
review proceedings conducted pursuant to this part and the Act, either
as petitioner or respondent.
Sec. 725.483 Costs in proceedings brought without reasonable grounds.
If a United States court having jurisdiction of proceedings
regarding any claim or final decision and order, determines that the
proceedings have been instituted or continued before such court without
reasonable ground, the costs of such proceedings shall be assessed
against the party who has so instituted or continued such proceedings.
Subpart G--Responsible Coal Mine Operators
Sec. 725.490 Statutory provisions and scope.
(a) One of the major purposes of the black lung benefits amendments
of 1977 was to provide a more effective means of transferring the
responsibility for the payment of benefits from the Federal government
to the coal industry with respect to claims filed under this part. In
furtherance of this goal, a Black Lung Disability Trust Fund financed
by the coal industry was established by the Black Lung Benefits Revenue
Act of 1977. The primary purpose of the Fund
[[Page 80082]]
is to pay benefits with respect to all claims in which the last coal
mine employment of the miner on whose account the claim was filed
occurred before January 1, 1970. With respect to most claims in which
the miner's last coal mine employment occurred after January 1, 1970,
individual coal mine operators will be liable for the payment of
benefits. The 1981 amendments to the Act relieved individual coal mine
operators from the liability for payment of certain special claims
involving coal mine employment on or after January 1, 1970, where the
claim was previously denied and subsequently approved under section 435
of the Act. See Sec. 725.496 for a detailed description of these
special claims. Where no such operator exists or the operator
determined to be liable is in default in any case, the fund shall pay
the benefits due and seek reimbursement as is appropriate. See also
Sec. 725.420 for the fund's role in the payment of interim benefits in
certain contested cases. In addition, the Black Lung Benefits Reform
Act of 1977 amended certain provisions affecting the scope of coverage
under the Act and describing the effects of particular corporate
transactions on the liability of operators.
(b) The provisions of this subpart define the term ``operator'' and
prescribe the manner in which the identity of an operator which may be
liable for the payment of benefits--referred to herein as a
``responsible operator''--will be determined.
Sec. 725.491 Operator defined.
(a) For purposes of this part, the term ``operator'' shall include:
(1) Any owner, lessee, or other person who operates, controls, or
supervises a coal mine, or any independent contractor performing
services or construction at such mine; or
(2) Any other person who:
(i) Employs an individual in the transportation of coal or in coal
mine construction in or around a coal mine, to the extent such
individual was exposed to coal mine dust as a result of such employment
(see Sec. 725.202);
(ii) In accordance with the provisions of Sec. 725.492, may be
considered a successor operator; or
(iii) Paid wages or a salary, or provided other benefits, to an
individual in exchange for work as a miner (see Sec. 725.202).
(b) The terms ``owner,'' ``lessee,'' and ``person'' shall include
any individual, partnership, association, corporation, firm, subsidiary
of a corporation, or other organization, as appropriate, except that an
officer of a corporation shall not be considered an ``operator'' for
purposes of this part. Following the issuance of an order awarding
benefits against a corporation that has not secured its liability for
benefits in accordance with section 423 of the Act and Sec. 726.4, such
order may be enforced against the president, secretary, or treasurer of
the corporation in accordance with subpart I of this part.
(c) The term ``independent contractor'' shall include any person
who contracts to perform services. Such contractor's status as an
operator shall not be contingent upon the amount or percentage of its
work or business related to activities in or around a mine, nor upon
the number or percentage of its employees engaged in such activities.
(d) For the purposes of determining whether a person is or was an
operator that may be found liable for the payment of benefits under
this part, there shall be a rebuttable presumption that during the
course of an individual's employment with such employer, such
individual was regularly and continuously exposed to coal mine dust
during the course of employment. The presumption may be rebutted by a
showing that the employee was not exposed to coal mine dust for
significant periods during such employment.
(e) The operation, control, or supervision referred to in paragraph
(a)(1) of this section may be exercised directly or indirectly. Thus,
for example, where a coal mine is leased, and the lease empowers the
lessor to make decisions with respect to the terms and conditions under
which coal is to be extracted or prepared, such as, but not limited to,
the manner of extraction or preparation or the amount of coal to be
produced, the lessor may be considered an operator. Similarly, any
parent entity or other controlling business entity may be considered an
operator for purposes of this part, regardless of the nature of its
business activities.
(f) Neither the United States, nor any State, nor any
instrumentality or agency of the United States or any State, shall be
considered an operator.
Sec. 725.492 Successor operator defined.
(a) Any person who, on or after January 1, 1970, acquired a mine or
mines, or substantially all of the assets thereof, from a prior
operator, or acquired the coal mining business of such prior operator,
or substantially all of the assets thereof, shall be considered a
``successor operator'' with respect to any miners previously employed
by such prior operator.
(b) The following transactions shall also be deemed to create
successor operator liability:
(1) If an operator ceases to exist by reason of a reorganization
which involves a change in identity, form, or place of business or
organization, however effected;
(2) If an operator ceases to exist by reason of a liquidation into
a parent or successor corporation; or
(3) If an operator ceases to exist by reason of a sale of
substantially all its assets, or as a result of merger, consolidation,
or division.
(c) In any case in which a transaction specified in paragraph (b),
or substantially similar to a transaction specified in paragraph (b),
took place, the resulting entity shall be considered a ``successor
operator'' with respect to any miners previously employed by such prior
operator.
(d) This section shall not be construed to relieve a prior operator
of any liability if such prior operator meets the conditions set forth
in Sec. 725.494. If the prior operator does not meet the conditions set
forth in Sec. 725.494, the following provisions shall apply:
(1) In any case in which a prior operator transferred a mine or
mines, or substantially all of the assets thereof, to a successor
operator, or sold its coal mining business or substantially all of the
assets thereof, to a successor operator, and then ceased to exist
within the terms of paragraph (b), the successor operator as identified
in paragraph (a) shall be primarily liable for the payment of benefits
to any miners previously employed by such prior operator.
(2) In any case in which a prior operator transferred mines, or
substantially all of the assets thereof, to more than one successor
operator, the successor operator that most recently acquired a mine or
mines or assets from the prior operator shall be primarily liable for
the payment of benefits to any miners previously employed by such prior
operator.
(3) In any case in which a mine or mines, or substantially all the
assets thereof, have been transferred more than once, the successor
operator that most recently acquired such mine or mines or assets shall
be primarily liable for the payment of benefits to any miners
previously employed by the original prior operator. If the most recent
successor operator does not meet the criteria for a potentially liable
operator set forth in Sec. 725.494, the next most recent successor
operator shall be liable.
(e) An ``acquisition,'' for purposes of this section, shall include
any transaction by which title to the mine or mines, or substantially
all of the assets thereof, or the right to extract or prepare coal at
such mine or mines, becomes
[[Page 80083]]
vested in a person other than the prior operator.
725.493 Employment relationship defined.
(a)(1) In determining the identity of a responsible operator under
this part, the terms ``employ'' and ``employment'' shall be construed
as broadly as possible, and shall include any relationship under which
an operator retains the right to direct, control, or supervise the work
performed by a miner, or any other relationship under which an operator
derives a benefit from the work performed by a miner. Any individuals
who participate with one or more persons in the mining of coal, such as
owners, proprietors, partners, and joint venturers, whether they are
compensated by wages, salaries, piece rates, shares, profits, or by any
other means, shall be deemed employees. It is the specific intention of
this paragraph to disregard any financial arrangement or business
entity devised by the actual owners or operators of a coal mine or coal
mine-related enterprise to avoid the payment of benefits to miners who,
based upon the economic reality of their relationship to this
enterprise, are, in fact, employees of the enterprise.
(2) The payment of wages or salary shall be prima facie evidence of
the right to direct, control, or supervise an individual's work. The
Department intends that where the operator who paid a miner's wages or
salary meets the criteria for a potentially liable operator set forth
in Sec. 725.494, that operator shall be primarily liable for the
payment of any benefits due the miner as a result of such employment.
The absence of such payment, however, will not negate the existence of
an employment relationship. Thus, the Department also intends that
where the person who paid a miner's wages may not be considered a
potentially liable operator, any other operator who retained the right
to direct, control or supervise the work performed by the miner, or who
benefitted from such work, may be considered a potentially liable
operator.
(b) This paragraph contains examples of relationships that shall be
considered employment relationships for purposes of this part. The list
is not intended to be exclusive.
(1) In any case in which an operator may be considered a successor
operator, as determined in accordance with Sec. 725.492, any employment
with a prior operator shall also be deemed to be employment with the
successor operator. In a case in which the miner was not independently
employed by the successor operator, the prior operator shall remain
primarily liable for the payment of any benefits based on the miner's
employment with the prior operator. In a case in which the miner was
independently employed by the successor operator after the transaction
giving rise to successor operator liability, the successor operator
shall be primarily liable for the payment of any benefits.
(2) In any case in which the operator which directed, controlled or
supervised the miner is no longer in business and such operator was a
subsidiary of a parent company, a member of a joint venture, a partner
in a partnership, or was substantially owned or controlled by another
business entity, such parent entity or other member of a joint venture
or partner or controlling business entity may be considered the
employer of any employees of such operator.
(3) In any claim in which the operator which directed, controlled
or supervised the miner is a lessee, the lessee shall be considered
primarily liable for the claim. The liability of the lessor may be
established only after it has been determined that the lessee is unable
to provide for the payment of benefits to a successful claimant. In any
case involving the liability of a lessor for a claim arising out of
employment with a lessee, any determination of lessor liability shall
be made on the basis of the facts present in the case in accordance
with the following considerations:
(i) Where a coal mine is leased, and the lease empowers the lessor
to make decisions with respect to the terms and conditions under which
coal is to be extracted or prepared, such as, but not limited to, the
manner of extraction or preparation or the amount of coal to be
produced, the lessor shall be considered the employer of any employees
of the lessee.
(ii) Where a coal mine is leased to a self-employed operator, the
lessor shall be considered the employer of such self-employed operator
and its employees if the lease or agreement is executed or renewed
after August 18, 1978 and such lease or agreement does not require the
lessee to guarantee the payment of benefits which may be required under
this part and part 726 of this subchapter.
(iii) Where a lessor previously operated a coal mine, it may be
considered an operator with respect to employees of any lessee of such
mine, particularly where the leasing arrangement was executed or
renewed after August 18, 1978 and does not require the lessee to secure
benefits provided by the Act.
(4) A self-employed operator, depending upon the facts of the case,
may be considered an employee of any other operator, person, or
business entity which substantially controls, supervises, or is
financially responsible for the activities of the self-employed
operator.
Sec. 725.494 Potentially liable operators.
An operator may be considered a ``potentially liable operator''
with respect to a claim for benefits under this part if each of the
following conditions is met:
(a) The miner's disability or death arose at least in part out of
employment in or around a mine or other facility during a period when
the mine or facility was operated by such operator, or by a person with
respect to which the operator may be considered a successor operator.
For purposes of this section, there shall be a rebuttable presumption
that the miner's disability or death arose in whole or in part out of
his or her employment with such operator. Unless this presumption is
rebutted, the responsible operator shall be liable to pay benefits to
the claimant on account of the disability or death of the miner in
accordance with this part. A miner's pneumoconiosis, or disability or
death therefrom, shall be considered to have arisen in whole or in part
out of work in or around a mine if such work caused, contributed to or
aggravated the progression or advancement of a miner's loss of ability
to perform his or her regular coal mine employment or comparable
employment.
(b) The operator, or any person with respect to which the operator
may be considered a successor operator, was an operator for any period
after June 30, 1973.
(c) The miner was employed by the operator, or any person with
respect to which the operator may be considered a successor operator,
for a cumulative period of not less than one year
(Sec. 725.101(a)(32)).
(d) The miner's employment with the operator, or any person with
respect to which the operator may be considered a successor operator,
included at least one working day (Sec. 725.101(a)(32)) after December
31, 1969.
(e) The operator is capable of assuming its liability for the
payment of continuing benefits under this part. An operator will be
deemed capable of assuming its liability for a claim if one of the
following three conditions is met:
(1) The operator obtained a policy or contract of insurance under
section 423 of the Act and part 726 of this subchapter that covers the
claim, except that such policy shall not be considered sufficient to
establish the operator's capability of assuming liability if the
insurance company has been declared
[[Page 80084]]
insolvent and its obligations for the claim are not otherwise
guaranteed;
(2) The operator qualified as a self-insurer under section 423 of
the Act and part 726 of this subchapter during the period in which the
miner was last employed by the operator, provided that the operator
still qualifies as a self-insurer or the security given by the operator
pursuant to Sec. 726.104(b) is sufficient to secure the payment of
benefits in the event the claim is awarded; or
(3) The operator possesses sufficient assets to secure the payment
of benefits in the event the claim is awarded in accordance with
Sec. 725.606.
Sec. 725.495 Criteria for determining a responsible operator.
(a)(1) The operator responsible for the payment of benefits in a
claim adjudicated under this part (the ``responsible operator'') shall
be the potentially liable operator, as determined in accordance with
Sec. 725.494, that most recently employed the miner.
(2) If more than one potentially liable operator may be deemed to
have employed the miner most recently, then the liability for any
benefits payable as a result of such employment shall be assigned as
follows:
(i) First, to the potentially liable operator that directed,
controlled, or supervised the miner;
(ii) Second, to any potentially liable operator that may be
considered a successor operator with respect to miners employed by the
operator identified in paragraph (a)(2)(i) of this section; and
(iii) Third, to any other potentially liable operator which may be
deemed to have been the miner's most recent employer pursuant to
Sec. 725.493.
(3) If the operator that most recently employed the miner may not
be considered a potentially liable operator, as determined in
accordance with Sec. 725.494, the responsible operator shall be the
potentially liable operator that next most recently employed the miner.
Any potentially liable operator that employed the miner for at least
one day after December 31, 1969 may be deemed the responsible operator
if no more recent employer may be considered a potentially liable
operator.
(4) If the miner's most recent employment by an operator ended
while the operator was authorized to self-insure its liability under
part 726 of this title, and that operator no longer possesses
sufficient assets to secure the payment of benefits, the provisions of
paragraph (a)(3) shall be inapplicable with respect to any operator
that employed the miner only before he was employed by such self-
insured operator. If no operator that employed the miner after his
employment with the self-insured operator meets the conditions of
Sec. 725.494, the claim of the miner or his survivor shall be the
responsibility of the Black Lung Disability Trust Fund.
(b) Except as provided in this section and Sec. 725.408(a)(3), with
respect to the adjudication of the identity of a responsible operator,
the Director shall bear the burden of proving that the responsible
operator initially found liable for the payment of benefits pursuant to
Sec. 725.410 (the ``designated responsible operator'') is a potentially
liable operator. It shall be presumed, in the absence of evidence to
the contrary, that the designated responsible operator is capable of
assuming liability for the payment of benefits in accordance with
Sec. 725.494(e).
(c) The designated responsible operator shall bear the burden of
proving either:
(1) That it does not possess sufficient assets to secure the
payment of benefits in accordance with Sec. 725.606; or
(2) That it is not the potentially liable operator that most
recently employed the miner. Such proof must include evidence that the
miner was employed as a miner after he or she stopped working for the
designated responsible operator and that the person by whom he or she
was employed is a potentially liable operator within the meaning of
Sec. 725.494. In order to establish that a more recent employer is a
potentially liable operator, the designated responsible operator must
demonstrate that the more recent employer possesses sufficient assets
to secure the payment of benefits in accordance with Sec. 725.606. The
designated responsible operator may satisfy its burden by presenting
evidence that the owner, if the more recent employer is a sole
proprietorship; the partners, if the more recent employer is a
partnership; or the president, secretary, and treasurer, if the more
recent employer is a corporation that failed to secure the payment of
benefits pursuant to part 726 of this subchapter, possess assets
sufficient to secure the payment of benefits, provided such assets may
be reached in a proceeding brought under subpart I of this part.
(d) In any case referred to the Office of Administrative Law Judges
pursuant to Sec. 725.421 in which the operator finally designated as
responsible pursuant to Sec. 725.418(d) is not the operator that most
recently employed the miner, the record shall contain a statement from
the district director explaining the reasons for such designation. If
the reasons include the most recent employer's failure to meet the
conditions of Sec. 725.494(e), the record shall also contain a
statement that the Office has searched the files it maintains pursuant
to part 726, and that the Office has no record of insurance coverage
for that employer, or of authorization to self-insure, that meets the
conditions of Sec. 725.494(e)(1) or (e)(2). Such a statement shall be
prima facie evidence that the most recent employer is not financially
capable of assuming its liability for a claim. In the absence of such a
statement, it shall be presumed that the most recent employer is
financially capable of assuming its liability for a claim.
Sec. 725.496 Special claims transferred to the fund.
(a) The 1981 amendments to the Act amended section 422 of the Act
and transferred liability for payment of certain special claims from
operators and carriers to the fund. These provisions apply to claims
which were denied before March 1, 1978, and which have been or will be
approved in accordance with section 435 of the Act.
(b) Section 402(i) of the Act defines three classes of denied
claims subject to the transfer provisions:
(1) Claims filed with and denied by the Social Security
Administration before March 1, 1978;
(2) Claims filed with the Department of Labor in which the claimant
was notified by the Department of an administrative or informal denial
before March 1, 1977, and in which the claimant did not within one year
of such notification either:
(i) Request a hearing; or
(ii) Present additional evidence; or
(iii) Indicate an intention to present additional evidence; or
(iv) Request a modification or reconsideration of the denial on the
ground of a change in conditions or because of a mistake in a
determination of fact;
(3) Claims filed with the Department of Labor and denied under the
law in effect prior to the enactment of the Black Lung Benefits Reform
Act of 1977, that is, before March 1, 1978, following a formal hearing
before an administrative law judge or administrative review before the
Benefits Review Board or review before a United States Court of
Appeals.
(c) Where more than one claim was filed with the Social Security
Administration and/or the Department of Labor prior to March 1, 1978,
by or on behalf of a miner or a surviving dependent of a miner, unless
such claims were required to be merged by
[[Page 80085]]
the agency's regulations, the procedural history of each such claim
must be considered separately to determine whether the claim is subject
to the transfer of liability provisions.
(d) For a claim filed with and denied by the Social Security
Administration prior to March 1, 1978, to come within the transfer
provisions, such claim must have been or must be approved under the
provisions of section 435 of the Act. No claim filed with and denied by
the Social Security Administration is subject to the transfer of
liability provisions unless a request was made by or on behalf of the
claimant for review of such denied claim under section 435. Such review
must have been requested by the filing of a valid election card or
other equivalent document with the Social Security Administration in
accordance with section 435(a) and its implementing regulations at 20
CFR 410.700 through 410.707.
(e) Where a claim filed with the Department of Labor prior to March
1, 1977, was subjected to repeated administrative or informal denials,
the last such denial issued during the pendency of the claim determines
whether the claim is subject to the transfer of liability provisions.
(f) Where a miner's claim comes within the transfer of liability
provisions of the 1981 amendments the fund is also liable for the
payment of any benefits to which the miner's dependent survivors are
entitled after the miner's death. However, if the survivor's
entitlement was established on a separate claim not subject to the
transfer of liability provisions prior to app |
