Application of the Fair Labor Standards Act to Domestic Service
[Proposed Rules] [04/08/2002]
Regulations implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended [Proposed Rules] [01/22/1997]
[[Page 7093]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment Standards Administration
_______________________________________________________________________
20 CFR Parts 718, et al.
Regulations Implementing the Federal Coal Mine Health and Safety Act of
1969, as Amended; Proposed Rule
[[Page 3338]]
DEPARTMENT OF LABOR
Employment Standards Administration
20 CFR Parts 718, 722, 725, 726 and 727
RIN 1215-AA99
Regulations implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
AGENCY: Employment Standards Administration, Labor.
ACTION: Proposed rule.
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SUMMARY: The Department of Labor proposes to amend the regulations
implementing the Black Lung Benefits Act. Most of the affected
regulations govern the processing and adjudication of individual claims
filed by former coal miners and their surviving dependents, including
the medical criteria used to adjudicate the entitlement of those who
file claims and the criteria used to determine which of the miner's
former employers will be liable for the payment of benefits. In
addition, the Department proposes to eliminate outdated regulations
setting forth criteria for approving state workers' compensation
programs; to discontinue the annual publication, in the Code of Federal
Regulations, of the interim criteria governing claims filed prior to
April 1, 1980; and to revise the criteria governing the responsibility
of coal mine operators to secure the payment of benefits to their
employees.
DATES: Comments must be submitted on or before March 24, 1997.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to James L. DeMarce, Director, Division of Coal Mine Workers'
Compensation, Room C-3520, Frances Perkins Building, 200 Constitution
Ave., N.W., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 219-6692.
SUPPLEMENTARY INFORMATION: The Department last amended the regulations
implementing the Black Lung Benefits Act, 30 U.S.C. 901 et seq., in
1983, more than thirteen years ago. Since then, litigation before the
various U.S. courts of appeals and the Benefits Review Board has
resulted in the clarification of many substantive areas. Moreover, the
Office of Workers' Compensation Programs' experience in administering
the program during this period has resulted in a variety of suggestions
for change with the goal of helping to improve services, streamline the
adjudication process and simplify the regulations' language. Thus, the
Department proposes numerous changes in order to streamline, update and
clarify these program regulations.
Summary of Noteworthy Proposed Changes
Evidentiary Development
The proposed regulations contain a limitation on the amount of
documentary medical evidence parties may submit. The designated
responsible coal mine operator or the Director, whichever party is
liable, and the claimant are limited in their affirmative presentations
to two complete pulmonary evaluations or consultative reports a piece.
Documentary rebuttal evidence is limited to one interpretive opinion
with respect to each part of the pulmonary evaluation submitted by a
party's opponent. See proposed Sec. 725.414.
The Department proposes these changes in order to ensure that
eligibility determinations are based on the best quality evidence
submitted rather than on the quantity of evidence submitted by each
side. Currently, in establishing their eligibility to benefits,
claimants must confront the vastly superior economic resources of their
adversaries: coal mine operators and their insurance carriers. Often,
these parties generate medical evidence in such volume that it
overwhelms the evidence supporting entitlement that claimants can
procure. The proposed changes limiting evidentiary development attempt
to make more equitable the adjudication of black lung claims and reduce
the costs associated with these cases.
The proposed regulation also fundamentally restructures the claims
adjudication process by focusing evidentiary development at the
district director level. The regulation requires all parties to develop
their documentary medical evidence and submit it to the district
director for consideration. Once a claim is referred for a hearing
before the Office of Administrative Law Judges, additional documentary
medical evidence will be admitted into the record only on a showing of
extraordinary circumstances or if the claimant has not been provided
with an adequate complete pulmonary evaluation by doctors of the
Department's choosing. The administrative law judge who conducts the
hearing may permit the parties to elicit testimony only from a limited
group of witnesses, including any physician whose report was submitted
to the district director. The judge will base his decision on a de novo
review of the evidentiary record developed by the district director and
the hearing testimony. See proposed Secs. 725.414, 725.456 and 725.457.
This proposed procedure departs from current practice by excluding
the admission of most additional documentary evidence while a claim is
pending before an administrative law judge. Parties presently often
reserve the active development of medical evidence until a claim is
referred for hearing. Permitting additional evidentiary development
before the administrative law judge was logical when significant delays
occurred between the district director's decision and the hearing
before the administrative law judge. Such delays no longer occur in a
statistically significant percentage of claims. Consequently, the
practical need for permitting evidentiary development at the hearing
stage has disappeared.
The Department believes that these proposed procedural changes
requiring evidentiary development before the district director will
encourage prompt and complete evidentiary development at the earliest
stages and will therefore allow the Department to conduct a thorough
and meaningful initial adjudication of each claim. The Department
believes that the fair, efficient and expeditious adjudication of
claims is a desirable objective which can be promoted by limiting the
amount of medical evidence developed and encouraging all parties to
participate actively at the earliest stages of the process.
Identification of Responsible Operators
The proposed regulations provide that a district director may name
one or more ``potentially liable operators'' from among a miner's
former employers. The potentially liable operator that most recently
employed the claimant will generally be the responsible operator liable
for the payment of benefits. The proposed regulations afford the
district director considerable flexibility, however, in notifying
potentially liable operators; they may be notified seriatim after the
district director evaluates the response from the miner's most recent
employer or does not receive any response. If a potentially liable
operator contests its identification, it must submit documentary
evidence supporting its position to the district director. In cases
involving difficult responsible operator identification issues, the
district director may retain more than one potentially liable operator
as a party to the case. See proposed Secs. 725.407 and 725.408.
The district director will choose a responsible operator from among
the
[[Page 3339]]
identified potentially liable operators and will notify the parties of
this determination in his initial findings. The designated responsible
operator must respond to the notice of initial findings within 30 days
and must specifically indicate whether it agrees or disagrees with the
initial finding of liability. See proposed Secs. 725.410, 725.412. In
the event further adjudication of the claim is required, the district
director may retain as parties to the case other potentially liable
operators in order to preserve the Department's right to compel the
payment of benefits by the responsible operator ultimately determined
to be liable for the claimant's benefits. See proposed Sec. 725.413.
To ensure that the claimant is not overwhelmed by operator-
developed medical evidence, however, the proposed regulations limit all
potentially liable operators and the designated responsible operator to
a total of two pulmonary evaluations or consultative reports as an
affirmative case. Because all of the named operators have an identical
interest with respect to the claimant's eligibility, the Department
does not believe that unfairness will result from limiting the total
evidence submitted. The designated responsible operator will have the
responsibility and, indeed, the obligation, to develop the operators'
case in chief on behalf of all named operators. Any named operator,
other than the responsible operator, must request the district
director's permission in order to schedule the claimant for a medical
examination. This permission may be granted only upon a showing that
the responsible operator has not undertaken a full development of the
evidence. In no event will the claimant be required to undergo more
than two pulmonary examinations by the parties opposing his
eligibility. See proposed Sec. 725.414.
The proposed responsible operator regulations also assign both the
Office of Workers' Compensation Programs (OWCP) and the designated
responsible operator burdens of proof. Under proposed Sec. 725.495, the
Department bears the burden of proof to identify the responsible
operator initially found liable for the payment of benefits. In order
to carry this burden of proof, OWCP must establish that the responsible
operator is a ``potentially liable operator,'' i.e., that it was an
operator after June 30, 1973, that it employed the miner for at least
one year, that at least one day of that employment occurred after
December 31, 1969, and that the miner was exposed to coal mine dust
while working for the operator. In addition, in any case in which the
designated responsible operator is not the miner's most recent
employer, the record must include a statement that OWCP has
investigated its files and has determined that it has no record that a
more recent employer insured its liability under the Act, or was
authorized to self-insure such liability.
Once OWCP has met its burden of proof, the burden shifts to the
designated responsible operator. The operator may avoid liability for
the claim only if it establishes: (1) that it is not financially
capable of assuming liability for the claim; or (2) that one of the
miner's more recent employers meets all of the criteria for a
potentially liable operator. The burden imposed on the designated
responsible operator under this second alternative includes a showing
that the more recent employer is financially capable of assuming
liability. See proposed Sec. 725.495.
If the designated responsible operator carries its burden of proof
and establishes that it was incorrectly identified and OWCP has failed
to name and retain as a party the coal mine operator ultimately found
liable as the responsible operator, the Trust Fund will bear liability
for the claim. In such a case, OWCP will make no attempt to name a new
responsible operator and force the claimant once again to establish his
entitlement to benefits. See proposed Sec. 725.407(d) allowing the
district director to identify and notify a responsible operator only
before a case is referred to the Office of Administrative Law Judges.
Civil Money Penalty
The proposed regulations contain new provisions implementing the
Act's civil money penalty provision, which directs the assessment of a
penalty of up to $1,000 per day against operators that fail to secure
the payment of benefits, either by purchasing commercial insurance or
qualifying as a self-insurer. 30 U.S.C. 933(d). The proposed
regulations establish criteria and streamlined procedures to be used in
assessing penalties. They provide notice of the Department's intention
to minimize the financial burden that uninsured operators currently
place on those operators in compliance with the Act's security
requirements and on the Black Lung Disability Trust Fund. See proposed
20 CFR part 726, subpart D, Secs. 726.300-726.320.
The proposed regulations provide a graduated series of possible
penalties based on a set of criteria, including the operator's size,
its prior notice of the Act's insurance requirements and the operator's
action, or inaction, following this notification. See proposed
Sec. 726.302. After receipt of a notice of penalty assessment and entry
of a timely notice of contest, an operator may request a hearing before
the Office of Administrative Law Judges. See proposed Sec. 726.307. The
ensuing decision will address whether the operator has violated the
Act's insurance requirements, whether the individuals identified by the
Director as potentially severally liable for the penalty were in fact
the president, treasurer or secretary of the corporation during the
relevant time period and, finally, the appropriateness of the penalty
assessment. See proposed Sec. 726.313. The Director or any party
aggrieved by a decision of the administrative law judge may petition
the Secretary for review, which will be conducted using a substantial
evidence standard. See proposed Secs. 726.314, 726.318.
The proposed regulations also impose an additional requirement on
self-insured operators. They require that such operators continue to
secure the payment of benefits to their employees even after the
operator has ceased mining coal. This additional requirement is
necessary given the limited amount of security typically required of
operators who self-insure and the prolonged time periods after coal
mine employment has ceased during which miners may file claims for
benefits. See proposed Sec. 726.114(c).
Treating Physicians' Opinions
The Department proposes a new paragraph (d) of 20 CFR 718.104, the
regulation governing reports of physical examinations. The proposed
paragraph would give certain treating physicians' opinions controlling
weight in determining whether the miner is totally disabled or died due
to pneumoconiosis. The proposed language would mandate that, when
weighing a treating physician's opinion, the factfinder must consider
the nature and duration of the relationship between the miner and the
physician, the frequency and extent of the physician's treatment, and
the credibility of the doctor's opinion in light of his reasoning and
documentation. The factfinder must also consider the opinion's
consistency with the other relevant evidence, and the doctor's training
and specialization.
Waiver of Overpayments
The Department proposes amending Sec. 725.547(a), which addresses
the applicability of overpayment provisions to coal mine operators and
their
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insurance carriers. The proposed regulation would make available to all
overpaid claimants the provisions governing waiver of recovery of an
overpayment incorporated from the Social Security Act, 30 U.S.C.
923(b), 940, incorporating 42 U.S.C. 404(b).
Currently, only a claimant who receives an overpayment from the
Black Lung Disability Trust Fund may be relieved of his repayment
obligation. Such a claimant is entitled to waiver of recovery of the
overpayment if he can demonstrate that permitting recovery would
``defeat the purpose of the Act'' or ``be against equity and good
conscience.'' Only those individuals who were not ``at fault'' in
creating the overpayment are eligible for waiver. The Department has
concluded that these waiver provisions should be available to all
claimants, including those who are overpaid by operators and insurance
carriers. Thus, under the proposed language, any individual who has
received an overpayment will have the opportunity to establish that the
two-part test for waiver is met.
Establishing Total Disability and Total Disability Due to
Pneumoconiosis
Proposed Sec. 718.204 amends the definition of ``total disability''
and makes explicit the Department's position with regard to
establishing total disability due to pneumoconiosis. Both of these
changes reflect the decisions of numerous courts of appeals. In order
to be found ``totally disabled,'' a miner must have a respiratory or
pulmonary impairment which, standing alone, prevents him from
performing his usual coal mine employment. See proposed
Sec. 718.204(b). In order to establish entitlement, the miner must also
demonstrate that his total disability is due to pneumoconiosis. This
showing is made by establishing that pneumoconiosis is a substantially
contributing cause of the totally disabling respiratory or pulmonary
impairment. See proposed Sec. 718.204(c). Finally, proposed
Sec. 718.204(a) also makes clear that a concurrent disability due to a
nonrespiratory or nonpulmonary condition will not disqualify the miner
from receipt of black lung benefits if the miner can also demonstrate
total disability due to pneumoconiosis.
Additional or Subsequent Claims
The proposed regulations clarify claimants' right to file
``additional'' or ``subsequent'' claims, those claims filed more than
one year after denial of a previous claim. See proposed
Sec. 725.309(d). Under this proposal, the claimant may escape automatic
denial of an additional claim on the grounds of the prior denial, by
demonstrating that a change in one of the applicable conditions of
entitlement has occurred since the date upon which the order denying
the prior claim became final. The changed regulatory language codifies
the holdings of several courts of appeals.
The applicable conditions of entitlement are limited to those
conditions upon which the prior denial was based. If the applicable
conditions of entitlement relate to the miner's physical condition and
the new evidence submitted with the additional claim establishes a
change in at least one applicable condition, the proposed regulation
contains a rebuttable presumption that the miner's physical condition
has changed. Once a change in an applicable condition of entitlement is
established, none of the findings made in connection with the prior
claim, except those based on a party's failure to contest an issue,
shall be binding in the adjudication of the subsequent claim, and the
claim must be adjudicated on the merits.
Medical Benefits
Proposed Sec. 725.701(e) provides that in any claim for
compensation for treatment of a pulmonary disorder filed by a miner
entitled to medical benefits, there shall be a rebuttable presumption
that the treatment was for a disorder caused or aggravated by
pneumoconiosis. This amended regulatory language codifies a decision of
the United States Court of Appeals for the Fourth Circuit. The
presumption may be rebutted only by evidence that the specific
pulmonary disorder being treated is neither related to, nor aggravated
by, the miner's pneumoconiosis. The proposed regulation also provides
that evidence that the miner does not have pneumoconiosis or is not
totally disabled by pneumoconiosis arising out of coal mine employment,
i.e., evidence which challenges the miner's underlying entitlement to
medical benefits, is insufficient to demonstrate that the specific
treatment for which compensation is claimed is not compensable. See
proposed Sec. 725.701(f).
Explanation of Proposed Changes
The Department proposes to revise the regulations implementing the
Black Lung Benefits Act, set forth at Chapter VI of Title 20 of the
Code of Federal Regulations. In order to make all the proposed changes
more easily understandable, the Department proposes to re-promulgate
Parts 718, 722, 725, and 726 in their entirety. This action is intended
to aid the readers of the Federal Register, and should not be construed
as inviting comments on any regulation which has not been substantively
revised. The regulations within these parts may be divided into three
categories: (1) those which will be substantively revised; (2) those to
which the Department is proposing only technical changes; and (3) those
which will not be revised at all.
Substantive revisions
The following regulations are being substantively revised:
Sec. 718.3, Sec. 718.101, Sec. 718.102, Sec. 718.103, Sec. 718.104,
Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201, Sec. 718.202,
Sec. 718.204, Sec. 718.205, Sec. 718.301, Sec. 718.307, Sec. 718.401,
Sec. 718.402, Sec. 718.403, Sec. 718.404, Appendix B to part 718,
Appendix C to Part 718, part 722 (entire), Sec. 725.1, Sec. 725.2,
Sec. 725.4, Sec. 725.101, Sec. 725.103, Sec. 725.202, Sec. 725.203,
Sec. 725.204, Sec. 725.209, Sec. 725.212, Sec. 725.213, Sec. 725.214,
Sec. 725.215, Sec. 725.219, Sec. 725.221, Sec. 725.222, Sec. 725.223,
Sec. 725.306, Sec. 725.309, Sec. 725.310, Sec. 725.311, Sec. 725.362,
Sec. 725.367, Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408,
Sec. 725.409, Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413,
Sec. 725.414, Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418,
Sec. 725.421, Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456,
Sec. 725.457, Sec. 725.458, Sec. 725.459, Sec. 725.478, Sec. 725.479,
Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494,
Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.522, Sec. 725.530,
Sec. 725.537, Sec. 725.547, Sec. 725.606, Sec. 725.608, Sec. 725.609,
Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2,
Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106,
Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.300,
Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304, Sec. 726.305,
Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309, Sec. 726.310,
Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314, Sec. 726.315,
Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319, Sec. 726.320,
and part 727 (entire). The substantive revisions to these regulations
are explained in further detail below.
Technical revisions
In addition, a number of regulations have been revised to make
certain technical changes. The proposed regulations substitute the term
``district director'' for the term ``deputy commissioner'' wherever it
appears. This change is explained in detail at 55 FR 28604-28607, July
12, 1990. The proposed regulations also add a cross-reference to
Sec. 725.4(d) to each regulation
[[Page 3341]]
which currently contains a cross-reference to part 727. Section
725.4(d) explains that although the Department is discontinuing
publication of the interim criteria set forth in 20 CFR Part 727 in the
Code of Federal Regulations, part 727 remains applicable to all claims
filed prior to April 1, 1980. In addition, certain proposed regulations
have been revised and/or renumbered in order to conform with the
current requirements of the Office of the Federal Register. The text of
Sec. 725.453A has been incorporated into Sec. 725.454 as paragraphs
(a), (b) and (c) and Sec. 725.454 has been retitled. The text of
Sec. 725.459A has been incorporated into Sec. 725.455 as paragraph (d).
Section 725.503A has been renumbered as Sec. 725.504, and
Secs. 725.504-.506 have been renumbered Secs. 725.505-.507. Section
725.701A has been renumbered Sec. 725.702, and Secs. 725.702-.707 have
been renumbered Secs. 725.703-.708. Finally, the proposed regulations
correct minor typographical errors, revise cross references to subparts
of part 725 which have been redesignated and regulations that have been
renumbered, and conform the regulations to the current practices of the
Office of the Federal Register. The Department has included technical
changes to the following regulations: Sec. 718.1, Sec. 718.2,
Sec. 718.4, Sec. 718.303, Sec. 725.102, Sec. 725.216, Sec. 725.217,
Sec. 725.301, Sec. 725.302, Sec. 725.350, Sec. 725.351, Sec. 725.360,
Sec. 725.366, Sec. 725.401, Sec. 725.402, Sec. 725.403, Sec. 725.404,
Sec. 725.419, Sec. 725.420, Sec. 725.450, Sec. 725.451, Sec. 725.453A,
Sec. 725.455, Sec. 725.459A, Sec. 725.462, Sec. 725.463, Sec. 725.465,
Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501, Sec. 725.503A,
Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507, Sec. 725.510,
Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.532, Sec. 725.533,
Sec. 725.543, Sec. 725.603, Sec. 725.604, Sec. 725.605, Sec. 725.607,
Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704, Sec. 725.705,
Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.4, and Sec. 726.203.
Pursuant to the authority set forth in 5 U.S.C. 552(b)(3)(A), which
allows federal agencies to alter ``rules of agency organization,
procedure, or practice'' without notice and comment, the Department is
not accepting comments on any of these regulations.
Unchanged Regulations
Certain regulations are merely being repromulgated without
alteration and are also not open for public comment. To the extent
appropriate, the Department's previous explanations of these
regulations, set forth in the Federal Register, see 43 FR 36772-36831,
Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain applicable. The
same is true of those regulations to which the Department is making
only technical changes. The following regulations are being
repromulgated for the convenience of readers: Sec. 718.203,
Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306,
Appendix A to Part 718, Sec. 725.3, Sec. 725.201, Sec. 725.205,
Sec. 725.206, Sec. 725.207, Sec. 725.208, Sec. 725.210, Sec. 725.211,
Sec. 725.218, Sec. 725.220, Sec. 725.224, Sec. 725.225, Sec. 725.226,
Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231,
Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305,
Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363,
Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460,
Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477,
Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511,
Sec. 725.512, Sec. 725.515, Sec. 725.520, Sec. 725.531, Sec. 725.534,
Sec. 725.535, Sec. 725.536, Sec. 725.538, Sec. 725.539, Sec. 725.540,
Sec. 725.541, Sec. 725.542, Sec. 725.544, Sec. 725.545, Sec. 725.546,
Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.1, Sec. 726.3,
Sec. 726.5, Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.103,
Sec. 726.107, Sec. 726.108, Sec. 726.112, Sec. 726.113, Sec. 726.115,
Sec. 726.201, Sec. 726.202, Sec. 726.204, Sec. 726.205, Sec. 726.206,
Sec. 726.207, Sec. 726.208, Sec. 726.209, Sec. 726.210, Sec. 726.211,
Sec. 726.212, and Sec. 726.213.
For purposes of this preamble, ``he'', ``his'', and ``him'' shall
include ``she'', ``hers'', and ``her''.
20 CFR Part 718--Standards for Determining Coal Miners' Total
Disability or Death Due to Pneumoconiosis
Subpart A--General
20 CFR 718.3. We are specifically seeking comment on Sec. 718.3.
Paragraph (c) of Sec. 718.3 was used to support the ``true doubt''
rule, which provides that an evidentiary issue will be resolved in
favor of the claimant if the probative evidence for and against the
claimant is in equipoise. The United States Supreme Court invalidated
the ``true doubt'' rule in Director, OWCP v. Greenwich Collieries, 114
S.Ct. 2251 (1994). The Court concluded that paragraph (c) failed to
define the ``true doubt'' rule effectively. It then held that the rule,
as applied by the Benefits Review Board, contravenes the Administrative
Procedure Act, 5 U.S.C. 551 et seq., by relieving the claimant of the
APA-imposed burden of proving his claim by a preponderance of the
evidence. Paragraph (c) also appeared to conflict with Sec. 718.403,
which requires the party alleging any fact to bear the burden of
proving that fact. Section 718.403 more accurately reflects the
allocation of burdens of proof under the APA, and paragraph (c) of
Sec. 718.3 should therefore be deleted.
Subpart B--Criteria for the Development of Medical Evidence
20 CFR 718.101. The current text of Sec. 718.101 should be
redesignated as paragraph (a), without further amendment, and a new
paragraph (b) should be added. The Department has consistently
maintained the position that the ``quality'' standards addressing the
administration of certain clinical tests and examinations apply to all
evidence developed by any party in connection with a claim for black
lung benefits filed after March 31, 1980. The Benefits Review Board has
rejected this position, and held that the standards govern only the
evidence developed by the Department; for all other parties, the
standards are advisory. The Board has also held that evidence cannot be
rejected by the adjudicator solely for noncompliance with the relevant
standard. See generally Gorzalka v. Big Horn Coal Co., 16 Black Lung
Rep. (MB) 1-48, 1-51 (1990) and authorities cited. Only the Third
Circuit has addressed this issue, and has agreed with the Department's
position. Director, OWCP v. Mangifest, 826 F.2d 1318 (3d Cir. 1987).
Although the existing regulations provide ample authority for making
the quality standards generally applicable (see paragraphs 718.3(a),
725.406(b), 725.456(c)), Sec. 718.101 should be amended to leave no
doubt on this point.
The Department has also consistently maintained that the part 718
quality standards apply to part 727 claims if the test was conducted
after March 31, 1980. See 20 CFR 727.203(c). The Sixth Circuit has
accepted this interpretation of the regulations. Wiley v. Consolidation
Coal Co., 915 F.2d 1076, 1080 (6th Cir. 1990). Both the Board and the
Seventh Circuit, however, have rejected the Department's position.
Coleman v. Ramey Coal Co., 18 Black Lung Rep. (MB) 1-9, 1-15 (1993);
Peabody Coal Co. v. Director, OWCP [Brinkley], 972 F.2d 880, 882 (7th
Cir. 1992). Accordingly, the proposed paragraph (b) includes a
reference to part 727 claims to clarify the applicability of the
quality standards to such claims.
The individual quality standards address the compliance requirement
in various ways. See 20 CFR 718.102 (x-ray) and 718.103 (pulmonary
function study): substantial compliance; 718.104 (medical report) and
718.105 (blood gas study): no reference; 718.106 (autopsy/biopsy):
compliance. In order to clarify
[[Page 3342]]
the criterion for compliance and place it in logical sequence in the
regulations, language should be added to Sec. 718.101 requiring
``substantial compliance'' with all the standards. This regulation
applies generally to all the quality standards, making it the rational
provision to contain the compliance requirement. A single reference in
one regulation also eliminates repetitive language from three other
regulations while making explicit the applicability of the standard to
the remaining two regulations. Finally, the phrase ``[e]xcept as
otherwise provided'' recognizes the exemption from compliance for a
deceased miner whose only X-ray is nonconforming, and autopsies or
biopsies of miners who died before March 31, 1980.
The purpose of the quality standards is to ensure the utilization
of reliable evidence in adjudicating claims. The effect of
noncompliance in terms of proving or refuting entitlement should
therefore be obvious. In order to emphasize the insufficiency of such
evidence as proof, however, proposed paragraph (b) contains an
affirmative prohibition.
20 CFR 718.102. Paragraph (e) should be reorganized in view of the
proposed paragraph 718.101(b) general compliance standard. As noted
with respect to proposed paragraph 718.101(b), codifying the
``substantial compliance'' standard in that regulation of general
applicability eliminates the need to reiterate it in each specific
quality standard. The proposed paragraph (e) also makes Sec. 718.102
consistent with Sec. 718.103 (pulmonary function studies) in presuming
compliance with the technical criteria in the Appendix. Finally, the
parenthetical citation to ``Sec. 718.208'' in the current regulation is
a typographical error; no such provision exists. Reference to
``Sec. 718.202'' is therefore substituted as a correction inasmuch as
that regulation contains definitions of Board-eligible and -certified
radiologists and ``B'' readers. See 20 CFR 718.202(a)(1)(ii) (C)-(E).
20 CFR 718.103. The last two sentences of paragraph (a) should be
removed, and the content of those sentences added to paragraph (c) to
take into account the changes to Sec. 718.101. The explanation provided
for eliminating the ``substantial compliance'' language in Sec. 718.102
applies with equal force to Sec. 718.103. Furthermore, the proposed
paragraphs 718.102(e) and 718.103(c) operate in a functionally
equivalent manner: both regulations (i) presume compliance with
technical requirements contained in the appendices; (ii) permit
rebuttal of that presumption with ``contrary'' evidence; and (iii)
recognize an exception to compliance for claims involving deceased
miners and limited evidence. Given the identity of purpose in the
current regulations, proposed paragraph 718.103(c) mirrors proposed
paragraph 718.102(c) to ensure similar interpretation and operation.
20 CFR 718.104. Section 718.104 should be amended to make clear
that the enumerated data represents the minimum information and testing
upon which a physician's report can be based if obtained in connection
with a claim for benefits. This regulation also is the logical
provision to implement guidelines for the weighing of medical reports
from a miner's treating physician. Proposed paragraph (d) describes the
relevant factors the adjudicator must consider in determining whether
to accord ``controlling weight'' to the treating physician's opinion.
The primary objective in changing the format of Sec. 718.104 is to
clarify the requirement that any physician's report developed in
connection with a claim must be based on certain enumerated information
and data in order to establish or refute entitlement. Furthermore, the
proposed regulation makes clear the necessity for utilizing at least an
x-ray and a pulmonary function test which satisfy the quality standards
as a clinical basis for a physician's pulmonary diagnosis. See
Director, OWCP v. Siwiec, 894 F.2d 635, 639 (3d Cir. 1990) (holding
that physician's report which was based on nonconforming pulmonary
function study was insufficient to prove miner was disabled). Finally,
proposed paragraph (c) parallels similar provisions in Secs. 718.102,
718.103 and 718.106, which permit the utilization of nonconforming
evidence to establish entitlement if the miner is deceased and
complying evidence is unavailable. This provision adds the requirement
that the physician must be unavailable; otherwise, in at least some
instances, the physician could be requested to address, and cure, the
deficiencies in his report.
With respect to paragraph (d), judicial precedent has long
recognized that special weight may be given the opinion of a miner's
treating physician, based on the doctor's opportunity to observe the
miner over a period of time. See, e.g., Thorn v. Itmann Coal Co., 3
F.3d 713, 717 n. 3 (4th Cir. 1993); Tussey v. Island Creek Coal Co.,
982 F.2d 1036, 1042 (6th Cir. 1993); McClendon v. Drummond Coal Co.,
861 F.2d 1512, 1514 (11th Cir. 1988); Micheli v. Director, OWCP, 846
F.2d 632, 636 (10th Cir. 1988); Schaaf v. Matthews, 574 F.2d 157, 160
(3d Cir. 1978). Such deference, however, is not an unqualified
``blanket rule'' which must be applied mechanically; the adjudicator
must still determine whether the physician's opinion is reasoned,
documented and credible before accepting it over contrary opinions.
Grizzle v. Pickands Mather and Co., 994 F.2d 1093, 1097 (4th Cir.
1993); Peabody Coal Co. v. Helms, 901 F.2d 571, 573 (7th Cir. 1990);
Halsey v. Richardson, 441 F.2d 1230, 1236 (6th Cir. 1971); Tedesco v.
Director, OWCP, 18 Black Lung Rep. (MB) 1-104, 1-105 (1994). The
proposed changes to Sec. 718.104 codify the principles embodied in both
lines of cases and draw on a similar regulation adopted by the Social
Security Administration, 20 CFR 404.1527(d)(2).
A physician's status as the miner's treating physician can provide
a legitimate basis for preferring that opinion over the reports of
doctors who have examined the miner only once or reviewed only medical
records and test data. Such status alone, however, is no substitute for
a critical analysis of both the nature and extent of the patient-doctor
relationship and the credibility of the opinion submitted by the
physician. The proposed regulation enumerates the four basic factors in
evaluating the physician's relationship with the miner: (i) nature of
relationship (pulmonary versus non-pulmonary treatment); (ii) duration
of relationship (length of time treating the miner); (iii) frequency of
treatment (number of visits over time); and (iv) extent of treatment
(types of tests and examinations conducted). Each factor will vary from
claim to claim. Consequently, no ``bright-line'' rule can be utilized
which defines when a treating physician's opinion should be given
controlling weight.
Paragraph (d)(5) underscores the requirement that, status aside,
the treating physician must provide a reasoned and documented opinion
before his conclusions can be accorded controlling weight. Status
cannot cure deficiencies in testing and explanation which would be
fatal flaws in reports from a non-treating physician. Accordingly, this
provision requires the adjudicator to consider the treating physician's
opinion on its own merits and in the context of the remainder of the
record to determine whether deference to the treating physician is
appropriate.
20 CFR 718.105. Section 718.105 should be amended to address
studies administered during the miner's terminal illness. During such
an illness, arterial blood gas studies may produce qualifying results
for reasons unrelated
[[Page 3343]]
to a chronic respiratory or pulmonary disease. In order to avoid
reliance on ``deathbed'' qualifying data, proposed paragraph (d) should
be added. This provision simply ensures the probative value of such
tests as evidence of a chronic respiratory or pulmonary impairment by
requiring the claimant to submit a physician's report attesting to the
link between the qualifying scores and the miner's chronic pulmonary
condition.
20 CFR 718.106. Paragraph (b) should be rewritten to account for
the changes to Sec. 718.101. Paragraph (b) is revised to utilize
language similar to parallel provisions in the other quality standards
provisions, which account for the general ``substantial compliance''
standard contained in the amended Sec. 718.101. The word
``noncomplying'' is substituted for ``nonconforming'' to ensure
consistent terminology in similar circumstances.
20 CFR 718.107. Section 718.107 should be amended to make explicit
the burden of proof a party bears to demonstrate that the proffered
test or procedure is ``medically acceptable.'' Section 718.107 enables
any party to submit medical evidence based on tests or procedures not
covered by the other provisions of subpart B. This regulation permits
flexibility in accommodating the use of developing or future medical
diagnostic techniques beyond the traditional tests specifically covered
by the quality standards. Proposed paragraph (b) emphasizes the
requirement that the party proffering the evidence must establish both
that the evidence is based on medically acceptable tests or procedures
and that the evidence is relevant to determining the medical issues in
a benefits claim.
Subpart C--Determining Entitlement to Benefits
20 CFR 718.201. We are specifically seeking comment on
Sec. 718.201. The regulatory definition of ``pneumoconiosis'' should be
revised to clarify the Department's position that this disease is a
progressive condition which, in some instances, may become detectable
only after cessation of coal mine employment. The definition should
also reflect the inclusive nature of the disease, such that no category
of chronic lung disease can be categorically excluded from the ambit of
the definition. Two important issues have emerged in recent litigation
involving the definition of ``pneumoconiosis'': (i) whether the disease
includes obstructive disorders; and (ii) whether pneumoconiosis is a
latent disease which can progress after the cessation of dust exposure
to the point of clinical manifestation. Heretofore, the Department has
consistently taken the position in litigation and rulemaking that no
specific lung disease could be categorically excluded from the
definition of ``pneumoconiosis''; thus, any disease which could be
medically linked to occupational dust exposure in a particular case
could be pneumoconiosis. See 43 FR 36825, Aug. 18, 1978, Sec. 727.202
Discussion and changes (a); 45 FR 13685, Feb. 29, 1980, Sec. 718.201
Discussion and changes (a); Barber v. Director, OWCP, 43 F.3d 899 (4th
Cir. 1995). The Department has also argued that pneumoconiosis can
progress absent exacerbating dust exposure, and may require many years
to reach the point of detection. The Department has been largely
successful in litigation involving these issues. The prevalence of the
issues and the availability of supportive medical research, however,
warrant making explicit the current regulatory definition to codify
both positions.
Scope of Definition
The statutory definition of ``pneumoconiosis,'' as implemented by
Sec. 718.201, encompasses any chronic respiratory or pulmonary disease
or impairment caused by the inhalation of coal mine dust. See 30 U.S.C.
902(b). Thus, any such disease or impairment which can be linked to
occupational dust exposure by credible medical evidence may be
considered ``pneumoconiosis'' for purposes of that particular claim. As
such, the Act recognizes a far broader concept of the disease than does
the medical community; the latter confines ``coal workers'
pneumoconiosis'' to the pathologic reaction of lung tissue to dust
inhalation, resulting in characteristic patterns or markings on chest
X-rays. See, e.g., ``The Merck Manual of Diagnosis and Therapy'' 681
(15th ed. 1987); ``National Institute for Occupational Safety and
Health, Occupational Exposure to Respirable Coal Mine Dust'' Sec. 4.1.2
(1995); Freeman United Coal Mine Co. v. Director, OWCP, 957 F.2d 302,
303 (7th Cir. 1992). Amending Sec. 718.201 to acknowledge the
distinction between the medical and legal definitions emphasizes the
inclusive nature of ``pneumoconiosis'' for purposes of the black lung
benefits program.
In the same vein, adding the phrase ``any chronic restrictive or
obstructive pulmonary disease'' will foreclose litigation attempting to
narrow the definition on a claim-by-claim basis with medical opinions
which exclude obstructive lung disorders from occupationally-related
pathologies. The NIOSH study on occupational dust exposure contains
ample medical authority suggesting at least some relationship between
coal mine dust exposure and the development of chronic obstructive lung
disease. See ``National Institute for Occupational Safety and Health,
Occupational Exposure to Respirable Coal Mine Dust'' Sec. 4.2.2 et seq.
Thus, leaving the issue to resolution in litigation risks inconsistent
results; indeed, one court has invited such inconsistencies:
The Act and its regulations define `pneumoconiosis' broadly and
do not establish that dust exposure from coal mine work can
necessarily cause obstructive pulmonary disease or impairment. * * *
Rather, the facts and medical opinions in each specific case answer
this question.
Blakley v. Amax Coal Co., 54 F.3d 1313, 1321 (7th Cir. 1995); compare
Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995)
(stating that ``[c]hronic obstructive lung disease thus is encompassed
within the definition of pneumoconiosis for purposes of entitlement to
Black Lung benefits[,]'' and rejecting medical opinions based on
``erroneous assumptions'' to the contrary); Eagle v. Armco, Inc., 943
F.2d 509, 511 n. 2 (4th Cir. 1991) (describing as ``bizarre'' a medical
opinion which rejected occupational dust exposure as possible cause of
chronic obstructive lung disease).
Progressive Nature
The Department has long maintained the view that simple
pneumoconiosis is an irreversible disease, which may cause progressive
deterioration of the lung even after the miner has ceased inhaling coal
mine dust. Many court and Board decisions reflect acceptance of this
characterization of the disease's pathology. See, e.g., Mullins Coal
Co. v. Director, OWCP, 484 U.S. 135, 151 (1987); LaBelle Processing Co.
v. Swarrow, 72 F.3d 308, 314-315 (3d Cir. 1995); Adkins v. Director,
OWCP, 958 F.2d 49, 51 (4th Cir. 1992); Lukman v. Director, OWCP, 896
F.2d 1248, 1253 (10th Cir. 1990); Orange v. Island Creek Coal Co., 786
F.2d 724, 727 (6th Cir. 1986); Consolidation Coal Co. v. Chubb, 741
F.2d 968, 973 (7th Cir. 1984); Elkins v. Beth-Elkhorn Coal Co., 2 Black
Lung Rep. (MB) 1-683, 1-686 (1979). But see Zeigler Coal Co. v. Lemon,
23 F.3d 1235, 1238 (7th Cir. 1994) (chastising an administrative law
judge for assuming that pneumoconiosis is progressive without any
medical evidence in the record to support the assumption). Indeed, the
propensity for progressive deterioration provides the legal
justification for permitting additional or
[[Page 3344]]
subsequent claims, even for miners who do not return to coal mining
after the first claim's denial. See 43 FR 36785, Aug. 18, 1978,
Sec. 725.309 Discussion and changes (a) (``The Department agrees that a
miner whose claim has once been finally denied * * * should be allowed
to file a new claim on the grounds of a progression to total
disability.''). The fact that the miner was unable to prove even the
existence of the disease in his initial claim is no bar to a later
claim since the disease may not have progressed to the point of
clinical manifestation when he filed the application.
Current medical science supports the Department's position that
pneumoconiosis may progress. In P. Francois et al., ``Pneumoconiosis of
Delayed Apparition: Large Scaled Screening in a Population of Retired
Coal Miners of the Northern Coal Fields of France,'' in Seventh
International Pneumoconiosis Conference, Abstracts of Communications
979 (1988), 741 new cases of pneumoconiosis (out of 3070 miners, or
24%) were discovered in miners who did not have pneumoconiosis at
retirement and who had not been exposed to dust for at least 3 years.
Of these 741 new cases, only 10% had large opacities (complicated
pneumoconiosis), 69% had category 1 simple pneumoconiosis, and 21% had
category 2 simple pneumoconiosis. Indeed, the authors specifically
recite one example of a 66 year old ex-miner who had retired 24 years
earlier after 25 years of dust exposure. The x-ray at retirement showed
no evidence of pneumoconiosis, but the one taken 20 years later showed
obvious pneumoconiosis. Thus, the authors write:
The coalworker's pneumoconiosis may appear a long time after the
exposure to nocive [harmful] dust has ceased. This is a well
established fact. What we don't know is the frequency of such forms
of pneumoconiosis of long delayed apparition.
Francois at p. 979.
An earlier study from France provides additional support. In David
V. Bates et al., ``A Longitudinal Study of Pulmonary Function in Coal
Miners in Lorraine, France'', 8 Am. J. Ind. Med. 21 (1985), the authors
observed continued and accelerated rates of decline in lung function
after retirement from mining in both smokers and nonsmokers. The
authors suggest that pneumoconiosis at all stages progresses, based on
``dust loading in the lung, and once this has reached some critical
level, it is not much affected by removal from exposure.'' Bates at p.
29. The study includes several graphs depicting ``radiologic category
at retirement and 10 years later.'' Bates at p. 27. These graphs
demonstrate a decrease in the percentage of miners with normal or 0/1
readings, and an increase in the percentage of miners with simple
pneumoconiosis (category 1/2) as well as complicated pneumoconiosis. By
way of explanation, Dr. Bates identified miners with normal or 0/1
readings as ``o-p;'' miners with 1/2 were ``m, n, A, B,'' and miners
with complicated pneumoconiosis were delineated as ``C.'' Bates at p.
22. An x-ray showing opacity perfusion of 0/1 is considered negative
for pneumoconiosis under the regulations. 20 CFR 718.102(b). Thus, the
data clearly depicts a progression from normal, or negative, x-rays to
positive x-rays, with the initial appearance of simple pneumoconiosis
occurring some 10 years after the miners' last dust exposure.
Other studies and treatises inferentially document, or otherwise
support, the progressivity of simple pneumoconiosis. See, Helen Dimich-
Ward & David V. Bates, ``Reanalysis of a Longitudinal Study of
Pulmonary Function in Coal Miners in Lorraine, France,'' 25 Am. J. Ind.
Med. 613, 621 (1994) (lung function loss and disability may progress
after exposure ceases); Cockcroft et al., ``Prevalence and Relation to
Underground Exposure of Radiological Irregular Opacities in South Wales
Coal Workers with Pneumoconiosis,'' Br. J. Ind. Med. 40: 169, 172
(1983) (increase in irregular opacities without further dust exposure
indicates continued tissue reaction to inhaled dust and progression of
the disease after exposure, although increase in overall profusion of
opacities not found); 4A Roscoe N. Gray, ``Attorneys' Textbook Of
Medicine,'' para. 205.71 (3d ed. 1982) (while only method of preventing
progression of pneumoconiosis is removal from dusty environment, with
some pneumoconioses progression will continue even after exposure
ceases); ``The Merck Manual of Diagnosis and Therapy'' 704 (16th ed.
1992) (explaining that complicated pneumoconiosis may develop and
progress without further dust exposure); David V. Bates, ``Respiratory
Function in Disease'' 303 (3d ed. 1989) (silicosis commonly progresses
after dust exposure ceases). The definition of ``pneumoconiosis''
includes silicosis. 20 CFR 718.202. Moreover, complicated
pneumoconiosis normally develops on a background of category 2 or 3
simple pneumoconiosis. See e.g. ``The Merck Manual of Diagnosis and
Therapy'' at p. 704. Thus, the development from simple to complicated
pneumoconiosis without further dust exposure reveals progression of the
disease.
In view of the ample scientific support for the Department's
interpretation of the scope and nature of the definition of
``pneumoconiosis,'' Sec. 718.201 should reflect that interpretation
with more specificity.
20 CFR 718.202. Paragraph (a)(2) should be amended to make clear
that a finding of anthracotic pigment in a biopsy procedure, without
more, is insufficient to establish the presence of pneumoconiosis. The
current regulation imposes this limitation only with respect to an
autopsy, but there is no reason to treat these two types of evidence
differently.
20 CFR 718.204. The proposed changes to Sec. 718.204 codify several
of the positions which the Department has taken in litigation to
clarify the meaning of ``total disability.'' The regulation should
explicitly reflect the Department's view that ``total disability''
means a totally disabling respiratory or pulmonary impairment. The
proposed changes also provide guidance for establishing the degree to
which pneumoconiosis must contribute to the miner's disabling
impairment; to date, the quantification of disability contribution has
been articulated solely through appellate decisions. In addition, the
proposed changes make clear that a miner who is totally disabled by a
compensable respiratory condition is entitled to black lung benefits
regardless of any concurrent disability by non-respiratory impairments
or diseases. Finally, the Department proposes to revise the regulation
to separate disability and disability causation criteria, unify the
various provisions dealing with lay evidence, and delete paragraph (f),
which is unnecessary in view of corresponding material in 20 CFR
725.504.
Two significant changes have been made to the concept of ``total
disability.'' First, paragraph (a) makes clear that disabling
nonrespiratory conditions are irrelevant to determining whether a miner
is, or was, totally disabled by pneumoconiosis. This change makes clear
the Department's disagreement with the holding in Peabody Coal Co. v.
Vigna, 22 F.3d 1388 (7th Cir. 1994). In that case, the miner suffered a
disabling stroke in 1971, and thereafter applied for benefits under
part 727. He invoked the interim presumption with qualifying pulmonary
function evidence from 1979. The Seventh Circuit held, however, that
the operator rebutted the presumption because the miner's disability
was caused by the stroke, which was
[[Page 3345]]
unrelated to coal mine dust exposure and occurred before the qualifying
ventilatory study. Compare Youghiogheny and Ohio Coal Co. v. McAngues,
996 F.2d 130 (6th Cir. 1993), cert. den. 114 S. Ct. 683 (1994) (holding
that miner's disabling injuries from automobile accident were
irrelevant to determining whether he was totally disabled by
pneumoconiosis). Although Vigna was decided under part 727, the
proposed changes to paragraph 718.204(a) are designed to ensure that
the Seventh Circuit's view will not be applied outside that circuit to
cases arising under part 718.
The proposed paragraph (a) does recognize one exception to the
irrelevancy of disabling nonrespiratory conditions in determining
whether the miner is totally disabled by pneumoconiosis. Such
conditions or diseases are relevant if they produce a chronic
respiratory or pulmonary impairment. Some cardiac and neurological
diseases, for example, may affect the respiratory musculature in such a
way as to impair the individual's ability to breathe without actually
affecting the lungs. See, e.g., Panco v. Jeddo-Highland Coal Co., 5
Black Lung Rep. 1-37 (1982) (concerning respiratory impairment from
amyotrophic lateral sclerosis, a neurological disease); Maynard v.
Central Coal Co., 2 Black Lung Rep. 1-985 (1980) (concerning
respiratory impairment from heart disease); Skursha v. U.S. Steel
Corp., 2 Black Lung Rep. 1-518 (1980) (same). Similarly, a traumatic
accident such as an injury to the spinal column may affect breathing
but not the lungs. The effect of the disease or trauma, its
relationship to the miner's ability to breathe, and the interplay with
the miner's pneumoconiosis, all determine the contributing causes of
the miner's disability.
The second change involves the definition of ``total disability''.
The proposed change to paragraph (b)(1) expresses what the Department
has always maintained: that the ``disability'' which the miner suffers
is a totally disabling respiratory or pulmonary impairment, and not
``whole person'' disability. Although the two courts of appeals to
consider the issue have accepted the Department's position, clarifying
the definition will hopefully end litigation on this issue. See Beatty
v. Danri Corp. & Triangle Enterprises, 49 F.3d 993 (3d Cir. 1995);
Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4th Cir. 1994).
Another significant change is the addition of criteria defining
``disability causation,'' or the degree to which pneumoconiosis must
contribute to the miner's disability. Several courts have addressed the
issue, and formulated various standards: Robinson v. Pickands Mather &
Co./Leslie Coal Co., 914 F.2d 35, 38 (4th Cir. 1990) (``contributing
cause''); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir. 1990)
(necessary though not sufficient cause); Lollar v. Alabama By-Products,
893 F.2d 1258, 1265 (11th Cir. 1990) (``substantial contributing
factor''); Adams v. Director, OWCP, 886 F.2d 818, 825 (6th Cir. 1989)
(disability ``due at least in part'' to pneumoconiosis); Bonessa v.
United States Steel Corp., 884 F.2d 726, 733 (3d Cir. 1989)
(``substantial contributor''); Mangus v. Director, OWCP, 882 F.2d 1527,
1531 (10th Cir. 1989) (at least a ``contributing cause''). Few, if any,
practical differences exist in the various expressions of the
contribution standard.
The Department has concluded that a single standard should be
articulated to eliminate needless confusion and litigation over the
relationship between a miner's pneumoconiosis and his disability. The
Department has selected the ``substantially contributing cause''
language because it ensures a tangible and actual contribution; a more
demanding standard would be too harsh, especially when many miners
suffer from a multiplicity of respiratory problems. Moreover, the
``substantially contributing cause'' standard mirrors the criteria for
proving that pneumoconiosis contributed to the miner's death. See 20
CFR 718.205(c). The U.S. Court of Appeals for the Third Circuit found
the contribution standard for death a persuasive basis for interpreting
the disability standard: ``We perceive no reason why the phrase 'total
disability due to pneumoconiosis' should not track the phrase `death
due to pneumoconiosis.''' Bonessa, 884 F.2d at 733.
Proposed paragraph (c)(1) also defines disability causation in
terms of worsening a totally disabling respiratory or pulmonary
condition which is itself wholly caused by non-coal mine exposures.
Thus, a miner whose pneumoconiosis further damages his lungs may
establish the necessary causal link even if nonoccupational exposure is
a self-sufficient cause of the respiratory disability. The proposed
language reflects the Department's disagreement with the result reached
by the U.S. Court of Appeals for the Fourth Circuit in Dehue Coal Co.
v. Ballard, 65 F.3d 1189 (4th Cir. 1995) (holding that a miner who was
totally disabled by lung cancer was not entitled to benefits because
his pneumoconiosis could not, by definition, contribute to the
disability).
The remaining changes are structural or editorial. Paragraph (c)(5)
has been changed to paragraph (d) (i) and (ii); the remaining
provisions addressing the use of lay evidence have been moved into
paragraph (d) given the commonality of their purpose: establishing
entitlement through lay evidence. The last sentence of current
paragraph (c)(5) makes clear that proving disability through clinical
tests or physicians' reports does not necessarily prove that
pneumoconiosis caused the disability. This provision therefore
underscores the difference between disability and disability causation
as separate elements of entitlement. This point is sufficiently
important to warrant placement in a separate paragraph as proposed
paragraph (c)(2). Finally, current paragraph (f) is deleted because it
simply duplicates 20 CFR 725.504 to the extent that both provisions
preclude a working miner from receiving benefits unless the award is
based on a finding of complicated pneumoconiosis.
20 CFR 718.205. The Department has taken the position that
pneumoconiosis causes the miner's death if the disease is either the
actual cause of death or hastens death to an appreciable extent. This
interpretation of the phrase ``death due to pneumoconiosis'' should be
made explicit in the regulation. Under the 1981 amendments to the BLBA,
a deceased miner's survivor who filed a claim on or after January 1,
1982, is eligible for benefits only if pneumoconiosis caused, or
contributed to, the miner's death. The Department added paragraph (c)
to Sec. 718.205 to implement congressional intent that pneumoconiosis
must play a role in the miner's death in order to entitle a survivor to
benefits. Based on the legislative history of the 1981 amendments, the
Department concluded that the disease must be at least a
``substantially contributing cause'' of the miner's death. See 48 FR
24276--24277, May 31, 1983, Sec. 718.205 Discussion and changes (h)-
(n). In order to give practical meaning to that phrase, the Department
has consistently argued in litigation that the medical evidence must at
least prove that the miner's pneumoconiosis actually hastened his
death. Four courts of appeals have deferred to the agency's
interpretation of the regulation. Brown v. Rock Creek Mining Co., 996
F.2d 812, 816 (6th Cir. 1993); Peabody Coal Co. v. Director, OWCP, 972
F.2d 178, 183 (7th Cir. 1992); Shuff v. Cedar Creek Coal Co., 967 F.2d
977, 980 (4th Cir. 1992), cert. den. 113 S.Ct. 969 (1993); Lukosevicz
v. Director, OWCP, 888 F.3d 1001, 1006
[[Page 3346]]
(3d Cir. 1989). The Benefits Review Board has refused to adopt the
Department's position, but has not articulated an alternative standard.
See, e.g., Tackett v. Armco, Inc., 16 Black Lung Rep. (MB) 1-88, 1-93
(1992), vacated on remand 17 Black Lung Rep. (MB) 1-103, 1-104 (1993).
In order to ensure consistent application of a single legal standard,
paragraph (c) of Sec. 718.205 should be amended by adding proposed
paragraph (c)(5), which codifies the Department's views.
Subpart D--Presumptions Applicable to Eligibility Determinations
20 CFR 718.301. Paragraph (b) should be removed because a new
definition of ``year'' is added to 20 CFR 725.101(a). Paragraph (a) of
Sec. 718.301 should be amended to make reference to proposed
Sec. 725.101(a)(32) and its requirements. Section 718.301 is one of two
regulations which currently define ``year'' for determining the length
of a miner's occupational history; the other regulation is 20 CFR
725.493(b) (identifying responsible operator). The Department has
concluded that a single regulatory definition with program-wide
application should replace the two current regulations. Determining the
length of a miner's occupational history is the same inquiry for
establishing eligibility for presumptions as for identifying a
responsible operator, and a single standard should apply in both cases.
20 CFR 718.307. Remove 20 CFR 718.307 (a) and (b) and add the
contents of Sec. 718.307(a) to 20 CFR 725.103. Paragraph (a) contains
material which concerns any claim filed under the BLBA, and not just
claims governed by the part 718 medical criteria. Accordingly, the
contents of paragraph (a) will be removed from part 718 and placed in
Sec. 725.103. See proposed Sec. 725.103. Paragraph (b) effectively
duplicates new proposed Sec. 725.103, which more broadly describes the
burden of proof. This language should therefore be removed.
Subpart E--Miscellaneous Provisions
20 CFR 718.401. Remove Sec. 718.401 because it duplicates proposed
Sec. 725.406. Current Sec. 718.401 recognizes each miner's statutory
right to a complete pulmonary evaluation at the Department's expense.
See 30 U.S.C. 923(b). This regulation also authorizes both the miner
and the district director to develop additional medical evidence.
Section 718.401 duplicates material in the cross-referenced
regulations, 20 CFR Secs. -725.405 and 725.406; the part 725
regulations have program-wide applicability. Consequently, no need
exists for including this regulation in part 718.
20 CFR 718.402. Remove the first sentence of Sec. 718.402 and add
the remainder of this provision to proposed Sec. 725.414(a)(3)(iii).
Section 718.402 describes the consequences of a claimant's failure to
cooperate in the development of medical evidence needed to adjudicate
the claim. This provision duplicates the substance of proposed
Sec. 725.414(a)(3)(iii), which deals with a claimant's unreasonable
refusal to submit to medical examinations and testing. Section 718.402
also penalizes the claimant who refuses to provide a complete health
history or permit access to medical records. This aspect of the
regulation will be added to proposed Sec. 725.414. Given the
overlapping purposes of the two regulations, Sec. 718.402 should be
removed from part 718 in favor of proposed Sec. 725.414, which has
program-wide applicability.
20 CFR 718.403. Remove 20 CFR 718.403 from part 718 and add to part
725. Section 718.403 codifies the burden of proof imposed on any party
alleging any fact in support of its position under part 718. The
parties to a claim, however, are required to prove a variety of facts
under part 725 which also bear on entitlement issues, e.g., status as a
miner (Sec. 725.202); dependency and relationship (Secs. 725.204-
725.228); liability as a responsible operator (subpart G); and
entitlement to medical benefits (subpart J). Part 725 does not contain
a counterpart to Sec. 718.403. Accordingly, a single provision
generally allocating the parties' burdens of proof under the BLBA
logically should be placed in part 725, the regulations with program-
wide applicability. See proposed Sec. 725.103.
20 CFR 718.404. Remove 20 CFR 718.404 from part 718 and move to
part 725. Section 718.404(a) makes explicit a miner's obligation to
inform the Department and the responsible operator, if any, if he
resumes work in a coal mine or comparable and gainful work. A return to
such work requires the termination of benefits unless the miner's award
is based on complicated pneumoconiosis. See 20 CFR 725.504(c).
Paragraph (b) reiterates the Department's authority to reopen a finally
approved claim during the lifetime of the miner and develop medical
evidence if the particular circumstances so warrant. Both provisions
are more logically placed in part 725 as regulations of program-wide
applicability. See proposed Sec. 725.203 (c) and (d).
Appendix B to Part 718
Appendix B to Part 718, 2(ii). The technical requirements for the
administration of pulmonary function studies should be amended to
preclude taking the initial inspiration from the open air. The quality
standards currently permit an individual performing a pulmonary
function study to take the initial inspiration from either the open air
or the testing machine. The proposed regulation eliminates this choice.
Open air inspiration is not recorded on the spirogram, which documents
the performance of the test. Consequently, the validity of such an
initial inspiration cannot be independently verified by a reviewing
physician. Because less than optimum inspiration will produce a ``false
low'' result, such tests may yield erroneously abnormal values. The
open-air inspiration option therefore must be eliminated in order to
ensure that the validity of every pulmonary function study can be
independently ascertained.
The Department does not propose to change Tables B1-B6 in Appendix
B, which are used to evaluate the results of pulmonary function tests
(see proposed Sec. 718.204(b)(2)(i)). Accordingly, the tables will not
be republished in either the proposed or final versions of this rule in
the Federal Register. The tables will continue to be published as part
of Appendix B to part 718 in the Code of Federal Regulations once this
rule becomes final, however. Parties interested in reviewing the tables
may consult earlier editions of the Code of Federal Regulations or the
Federal Register in which the tables were originally promulgated, 45 FR
13699-13710, Feb. 29, 1980.
Appendix C to Part 718. Appendix C should be amended to specify
that arterial blood gas studies should not be conducted during, or
shortly after, a miner's acute respiratory illness. Such studies are
likely to produce spurious values which are not indicative of the
miner's true condition.
20 CFR Part 722--Criteria for Determining Whether State Workers'
Compensation Laws Provide Adequate Coverage for Pneumoconiosis and
Listing of Approved State Laws
Section 421 of the Black Lung Benefits Act requires the Secretary
of Labor to publish in the Federal Register a list of all states whose
workers' compensation laws provide ``adequate coverage'' for
occupational pneumoconiosis. 30 U.S.C. 931(a). The purpose of this
provision was to allow states to assume responsibility for providing
compensation to former coal
[[Page 3347]]
miners who were totally disabled due to pneumoconiosis and to their
dependent survivors in the event of the miner's death due to
pneumoconiosis. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8-9
(1976). The Secretary's certification that a state law provides
adequate coverage prevents any claim for benefits arising in that state
from being adjudicated under the Black Lung Benefits Act. To date, no
state law has been approved.
The Act provides that a state may be included on the Secretary's
list only if its provisions governing benefit amounts, entitlement
standards, statute of limitations, and prior and successor operator
liability are ``substantially equivalent'' to those contained in the
Act. 30 U.S.C. 931(b)(2). In addition, the Secretary may promulgate
additional regulations to ensure adequate compensation for total
disability or death due to pneumoconiosis. 30 U.S.C. 931(b)(2)(F). The
Secretary first promulgated regulations under this authority on March
12, 1971, and amended those regulations on March 30, 1973 in light of
changes to the Longshore and Harbor Workers' Compensation Act in 1972.
38 FR 8238, March 30, 1973. These regulations, codified at 20 CFR part
722, have not been amended since 1973. In light of the subsequent
statutory changes made by the Black Lung Benefits Reform Act of 1977
and the Black Lung Benefits Amendments of 1981, the current regulations
are obsolete.
The Department has recently concluded a review of all of the
regulations implementing the Act, and has determined that the continued
publication of these criteria in the Code of Federal Regulations is no
longer required. Accordingly, rather than amend the regulations to
reflect the current law, the Department intends to simply delete the
specific criteria and replace them with a general statement that in the
future, upon application of any state, the Department will review the
state's workers' compensation law in light of the current Act to
determine whether the state law provides adequate coverage. Guided by
the criteria set forth in 30 U.S.C. 931(b)(2), the Department will
approve such a state law only if it guarantees at least the same
compensation, to the same individuals, as is provided by the Act. The
Act requires that if the Department approves any state laws, it publish
a list of the affected states in the Federal Register, 30 U.S.C.
931(b)(1).
Finally, the revised regulations substitute the gender neutral term
``workers' compensation laws'' for the term ``workmen's compensation
laws,'' used in the statute. No substantive alteration in the statutory
term is intended.
20 CFR Part 725--Claims for Benefits Under Part C of Title IV of the
Federal Mine Safety and Health Act, as Amended
Subpart A--General
20 CFR 725.1. Section 725.1 provides a broad overview of the
various parts of the Black Lung Benefits Act (BLBA), the amendments
thereto, and the incorporation of the Longshore and Harbor Workers'
Compensation Act (LHWCA). The Department proposes to amend this
regulation to include a comparable reference to the Social Security
Act, 42 U.S.C. 301 et seq., provisions of which are also incorporated
into Parts A, B and C of the BLBA. The BLBA is actually three statutes
in one. The Act itself is subchapter IV of the Mine Safety and Health
Act, chapter 30 of the United States Code. Part C of the Act, which the
Department administers, also incorporates many provisions of the LHWCA,
33 U.S.C. 901 et seq. Congress authorized the Department to vary the
terms of the incorporated LHWCA provisions by regulation, and the
Department has done so when the special requirements of the black lung
benefits program dictated the variance. Congress also incorporated
parts of the Social Security Act into Parts A and B of the BLBA.
Congress once again authorized the Department to adopt and modify the
Part B provisions ``to the extent appropriate'' for use in the
administration of Part C. Accordingly, Sec. 725.1 should be amended to
include a brief description of the Social Security Act incorporation
comparable to the present discussion of the LHWCA incorporation.
20 CFR 725.2. For an explanation of the changes to paragraph (b),
see the explanation of the changes to Sec. 725.4. Paragraph (c) should
be added to explain the applicability of these regulatory revisions to
pending claims and to claims filed after the effective date of the
revised regulations. The Department intends that the proposed revisions
announced in this Notice will apply to the adjudication of all claims
for benefits under the Black Lung Benefits Act pending with the
Department on the date these revisions go into effect, to the extent
that such application is consistent with the Department's authority
under the Black Lung Benefits Act and with the efficient administration
of the program. The Department considers a claim to be pending if the
claim has not yet been finally denied, or less than one year has passed
since the claim was finally denied. In addition, all of the proposed
regulations will apply to any claim filed after the regulations become
final.
The Supreme Court has held that a statutory grant of legislative
rulemaking authority to an agency does not confer the power to issue
retroactive rules unless Congress expressly provides such power. Bowen
v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). The Black
Lung Benefits Act does not contain such an express grant. Accordingly,
the Department's ability to issue rules of retroactive application is
circumscribed.
Determining whether a rule is one of retroactive application,
however, is often difficult. In Landgraf v. USI Film Products, 114 S.
Ct. 1483 (1994), the Court adopted the definition set forth by Justice
Story in Society for Propagation of the Gospel v. Wheeler, 22 F.Cas.
756 (No. 13,156) (CCDNH 1814):
[E]very statute, which takes away or impairs vested rights
acquired under existing law, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to transactions
or considerations already past, must be deemed retrospective. * * *
114 S. Ct. at 1499. The Court observed, however, that ``[a] statute
does not operate `retrospectively' merely because it is applied in a
case arising from conduct antedating the statute's enactment, or upsets
expectations based in prior law.'' Ibid. (citation omitted).
One example of an attempt to regulate retroactively was the
Department of Health and Human Services regulation at issue in
Georgetown University Hospital. In 1983, the U.S. District Court for
the District of Columbia had invalidated a 1981 HHS regulation
governing hospital reimbursement for failure to provide notice and an
opportunity to comment. In 1984, HHS reissued the regulation following
notice and comment, and attempted to make it retroactive to 1981. The
Supreme Court invalidated the second regulation as an unauthorized
attempt to promulgate a retroactive regulation. At the other end of the
spectrum are procedural changes. As the Supreme Court noted in
Landgraf, ``[c]hanges in procedural rules may often be applied in suits
arising before their enactment without raising concerns about
retroactivity.'' 114 S. Ct. at 1502.
For purposes of retroactivity, the revisions to the Department's
regulations implementing the Black Lung Benefits Act, 30 U.S.C. 901 et
seq., may be divided into two groups. The first, consisting of
revisions to part 726, have no effect on the adjudication of
[[Page 3348]]
claims filed under the Act. Those revisions, which establish procedures
for enforcing the general obligation of coal mine operators to secure
the payment of benefits under the Act, will be made effective
immediately upon publication of the final rule, and will govern all
subsequent penalty assessments.
The Department also proposes to revise various provisions in part
726 that address the requirements imposed on coal mine operators who
seek the Department's authority to self-insure their liability. These
revisions merely clarify the Department's existing interpretation of
the Act. Accordingly, these regulations may apply to the evaluation of
past conduct. In Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993),
the court held that ``[a] rule simply clarifying an unsettled or
confusing area of the law * * * does not change the law, but restates
what the law according to the agency is and has always been: 'It is no
more retroactive in its operation than is a judicial determination
construing and applying a statute to the case.' Manhattan General
Equip. Co. v. Commissioner, 297 U.S. 129, 135 (1936).''
The second, and largest, group of revisions are those amending
Parts 718 and 725, which govern the adjudication of claims for benefits
filed by miners and their survivors, as well as the payment of benefits
in approved claims. A number of the revisions alter the procedures to
be used in adjudication, including those related to processing of
claims by the district director, the adjudication of claims before the
Office of Administrative Law Judges, responsible operator issues, and
subsequent claims. These changes, however, significantly alter the
parties' obligations and expectations, for example, by limiting
evidence, creating presumptions, and establishing burdens of proof.
Accordingly, despite the Department's authority under Georgetown
University Hospital and Landgraf to issue procedural rules that take
effect immediately, the Department proposes to apply the revised
versions of the regulations governing those topics only to claims filed
after the effective date of the amendments. Because the remaining
revisions merely clarify the Department's interpretation of the current
Act and regulations, the Department intends to apply them to all claims
pending with the Department, and to the payment of all benefits that
become due and payable, or that remain unpaid, after the effective date
of these revisions.
20 CFR 725.4(d). In 1978, Congress required the Department of Labor
to promulgate interim entitlement criteria that were ``no more
restrictive'' than criteria used to adjudicate claims that had been
filed with the Social Security Administration under Part B of the Black
Lung Benefits Act. These interim criteria were to be used until the
Department could develop permanent criteria. The interim part 727
regulations were published at 43 FR 36818, Aug. 18, 1978. Because the
Department's permanent part 718 criteria took effect on April 1, 1980,
see 20 CFR 718.2, the part 727 regulations apply only to claims filed
before that date. The Department estimates that several hundred part
727 claims remain pending in various stages of adjudication. Because
the parties to these claims are quite familiar with the standards for
establishing eligibility under part 727, and no new claims will be
adjudicated under these standards, the Department intends to
discontinue the annual publication of part 727 in the Code of Federal
Regulations. Those standards will remain in effect for all claims to
which they apply. Parties interested in reviewing part 727 may consult
earlier editions of the Code of Federal Regulations or the Federal
Register in which the regulations were originally published.
20 CFR 725.101. The terms defined by Sec. 725.101(a)(4) et seq.
have been put in alphabetical order to assist the reader in finding the
appropriate definitions. The explanations below refer to the renumbered
paragraphs.
20 CFR 725.101(a)(6). Benefits. The regulation should be amended to
make clear that the initial pulmonary evaluation obtained by the
Department pursuant to 30 U.S.C. 923(b) is considered a ``benefit''
paid by the Trust Fund or the operator on the claimant's behalf. The
clinical testing and medical examination required by Sec. 413(b) of the
BLBA confer a ``benefit'' on the miner to the extent that the Trust
Fund pays for the miner's opportunity to substantiate his claim.
20 CFR 725.101(a)(13), Coal Preparation; (a)(19), Miner or Coal
Miner. The regulation should be amended to reflect the Department's
position that coke oven workers are not covered by the BLBA. The
Department has long taken the position that the preparation activities
undertaken at coke ovens are not covered by the BLBA. This position
reflects Congress' understanding of the scope of coverage intended by
the statutory definition of ``miner.'' 30 U.S.C. 902(d). See S.Rep. No.
209, 95th Cong., 1st Sess. 21 (May 16, 1977) (``Nor does [the
definition] include such individuals not directly related to the
production of coal such as coke oven workers.''); 123 Congressional
Record 24,236 (1977) (Sen. Randolph: ``* * * coke oven workers are not
included in the definition.''). See also Fox v. Director, OWCP, 889
F.2d 1037 (11th Cir. 1989); Sexton v. Matthews, 538 F.2d 88 (4th Cir.
1976). This clarifying language ensures that the definitions of ``coal
preparation'' and ``miner or coal miner'' do not encompass activities
involving the commercial production of coke, which is outside the
extraction and transportation processes.
20 CFR 725.101(a)(16). District Director. The proposed change
merely conforms the regulation to current administrative practice, and
ensures that any action taken by, or in the name of, a district
director shall be given full credit as the action of a deputy
commissioner.
20 CFR 725.101(a)(17). Division or DCMWC. The proposed change
specifies the agency within the Department which contains the Office of
Workers' Compensation Programs and the Division of Coal Mine Workers'
Compensation.
20 CFR 725.101(a)(31). Workers' Compensation Law. This definition
should be amended to make clear that certain benefits paid from a
state's general revenues are not workers' compensation payments for
purposes of the BLBA. The BLBA requires the Department to offset a
claimant's federal benefits by any benefits received from a state
pursuant to a workers' compensation law for disability or death due to
pneumoconiosis. 30 U.S.C. 932(g). Since the Act's inception, the
Department has considered payments made to disabled miners by a state
from general revenues to be excluded from benefits afforded by
``workers' compensation laws.'' Both the Third Circuit and the Benefits
Review Board, however, have rejected the Department's position.
O'Brockta v. Eastern Associated Coal Co., 18 Black Lung Rep. 1-72
(1994), aff'd sub nom. Director, OWCP v. Eastern Associated Coal Co.,
54 F.3d 141 (3d Cir. 1995). The Board held that Sec. 932(g) clearly
refers to ``workers' compensation law'' without regard to the source of
funding for the payments. The Third Circuit rejected this reasoning but
agreed that the Department's position was wrong. The Court held that
Sec. 932(g) is ambiguous, but that the Department's policy
impermissibly implies limitations on current Sec. 725.101(a)(4) which
are inconsistent with the unequivocal language of the regulation. The
Court suggested that the Department amend
[[Page 3349]]
the regulation to codify its policy. The proposed regulation makes
clear the Department's longstanding policy that payments made from a
state's general revenues are not workers' compensation benefits subject
to offset under the Act.
20 CFR 725.101(a)(32). The BLBA does not define a ``year'' for
purposes of computing the length of a miner's occupational history. In
1978 and 1980, the Department promulgated regulations which adopted the
current 125-day rule. 20 CFR 725.493(b), 718.301(b). The rationale for
this policy decision is explained in detail in the comments
accompanying the final regulations. 43 FR 36804, Aug. 18, 1978,
Sec. 725.493, Discussion and changes (b); 45 FR 13691, Feb. 29, 1980,
Sec. 718.301, Discussion and changes (b). The regulations are
substantially the same, but not identical. The proposed
Sec. 725.101(a)(32) consolidates provisions of the two existing
regulations into a definitional term with program-wide application.
In addition, the regulation codifies the Department's current
position with respect to absences, such as vacation and sick leave,
that are approved by the miner's employer. In such cases, where the
employer/employee relationship is uninterrupted, a miner is credited
with having worked during the period of the approved absence. Other
absences, such as the time during a strike or layoff, are not counted
as working days. Finally, the proposed section permits the adjudication
officer to use the Office's methodology for computing the length of the
miner's employment history as a fallback. See ``Coal Mine (BLBA)
Procedure Manual,'' ch. 2-700 (1994). The Bureau of Labor Statistics
(BLS) has compiled the average daily and annual wages for the coal mine
industry. A table of this data appears in the Office's Manual. If the
best available evidence consists of annual income statements, the
amount of time the miner worked each year as a miner may be computed by
dividing the reported income by the average daily income for that year.
The miner may be credited with a year, or a fractional part of a year,
based on the ratio of this data. If, however, the miner's annual income
exceeded the average income for that year, he may not be credited with
more than a year of employment for that income year.
20 CFR 725.103. Section 718.403 presently codifies the burden of
proof imposed on any party alleging any fact in support of its position
under part 718. The parties to a claim, however, are required to prove
a variety of facts under part 725 which also bear on entitlement
issues, e.g., status of a miner (Sec. 725.202); dependency and
relationship (Secs. 725.204-725.228); liability as a responsible
operator (subpart G); and entitlement to medical benefits (subpart J).
Part 725 does not contain a counterpart to Sec. 718.403. Accordingly, a
single provision generally allocating the parties' burdens of proof
under the BLBA logically should be placed in part 725 since those
regulations have program-wide applicability.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration of
Entitlement
20 CFR 725.202. The BLBA contains a broad definition of ``miner''
which the courts have liberally construed. See Dowd v. Director, OWCP,
846 F.2d 193 (3d Cir. 1988). In keeping with that liberal construction,
this regulation should be amended to create a rebuttable presumption
that any individual working at a coal mine or coal preparation facility
is a miner. The presumption is grounded in common sense: the vast
majority of persons working at a coal mine will ordinarily have duties
related to the mining processes of coal extraction and/or preparation.
This presumption can be rebutted by evidence that the individual is not
actually performing work integral to the extraction or preparation of
coal, or the individual's work involves only casual contact with the
coal mine operation. The structure of the regulation should also be
changed to distinguish special provisions relating to transportation
and construction workers. Of special note is the fact that construction
workers alone are relieved of the burden to prove that their work
involves the extraction or preparation of coal; working at a coal mine
site in construction activities which involve mine dust exposure is
sufficient to make them miners. See The Glem Company v. McKinney, 33
F.3d 340 (4th Cir. 1994).
20 CFR 725.203. One of the elements of entitlement required by
Sec. 725.202 is that the miner file a claim. Section 725.203(a), as
currently written, provides that all of the Sec. 725.202 requirements
must be satisfied for each month of entitlement. These criteria
effectively mean that the first month in which the miner fulfills all
the requirements for entitlement will never be earlier than the month
in which he files an application for benefits. A miner, however, is
entitled to benefits for all periods of compensable disability,
including any period of disability occurring before the claim is filed.
20 CFR 725.503. To the extent that the cross-reference to Sec. 725.202
improperly limits the miner's entitlement period (and conflicts with 20
CFR 725.503), the reference will be removed, and the language clarified
to conform to Sec. 725.503.
New paragraphs (c) and (d) incorporate material from 20 CFR
718.404, which has been deleted. Paragraph (c) makes explicit a miner's
ineligibility for black lung disability benefits if the miner resumes
his usual coal mine work or comparable and gainful work absent the
presence of complicated pneumoconiosis. Paragraph (d) reiterates the
Department's authority to reopen a finally approved claim during the
lifetime of the miner and develop medical evidence if the particular
circumstances warrant reopening. Both provisions are more logically
placed in part 725 as regulations of program-wide applicability. See 20
CFR 725.2(b).
20 CFR 725.204, .214. Sections 725.204 and 725.214 should be
amended to recognize the coexisting eligibility of both a qualified
spouse and an individual who married the miner in ignorance of a legal
impediment to that marriage. The BLBA incorporates Sec. 416(h)(1) of
the Social Security Act (SSA), which describes the requirements for
establishing the marital relationship between the wage earner and the
spouse for purposes of qualifying as a ``wife, husband, widow or
widower.'' 42 U.S.C. 416(h)(1), as incorporated by 30 U.S.C. 902(a)(2),
(e). The Department has implemented Sec. 416(h)(1) in the current
Secs. 725.204 (for spouses) and 725.214 (for surviving spouses). Recent
amendments to the SSA require corresponding changes in the regulations.
Section 416(h)(1) recognizes that both the ``legal'' and ``deemed''
spouses may be entitled to benefits. An individual qualifies as the
miner's ``legal'' spouse by proving the existence of a valid marriage
under state law. A ``deemed'' spouse, however, must demonstrate that he
lived with the miner either at the time of application or the time of
the miner's death, and:
in good faith went through a marriage with such individual resulting
in a purported marriage between them which, but for a legal
impediment not known to the applicant at the time of such ceremony,
would have been a valid marriage * * *.
42 U.S.C. 416(h)(1)(B)(i). The SSA defines a ``legal impediment'' as
only an impediment (I) resulting from the lack of dissolution of a
previous marriage or otherwise arising out of such previous marriage
or its dissolution, or (II) resulting from a defect in the procedure
followed in connection with such purported marriage.
42 U.S.C. 416(h)(1)(B)(iv).
Before 1990, Sec. 416(h)(1)(B) contained a provision preventing a
``deemed''
[[Page 3350]]
spouse from receiving benefits if a ``legal'' spouse existed and was
receiving benefits on the wage earner's account:
The [deemed spouse] provisions shall not apply if (i) another
person is or has been entitled to [old age and survivor's insurance]
benefit[s] * * * on the basis of the wages and self-employment
income of such insured individual and such other person is (or is
deemed to be) [the legal spouse] * * * of such insured individual
under subparagraph (A) at the time such applicant files the
application * * *.
42 U.S.C. 416(h)(1)(B) (1989). The Department used this version of
Sec. 416(h)(1) in promulgating the current regulatory criteria for
proving a relationship between the miner and spouse or surviving
spouse.
In 1990, Congress amended Sec. 416(h)(1)(B) by deleting the bar on
entitlement for a deemed spouse even if a legal spouse existed and was
receiving benefits. Omnibus Budget Reconciliation Act, Sec. 5119, 104
Stat. 1388-278 to 1388-280 (1990). The express purpose of the amendment
was to allow payment of concurrent benefits to both the legal and the
deemed spouses. See H. Rep. No. 101-964, 1990 U.S.C.C.A.N. 2649, 2650
(conference report). Congress intended that ``the existence of a legal
spouse would no longer prevent a deemed spouse from receiving benefits
on the worker's record or terminate the benefits of a deemed spouse who
was already receiving benefits on the worker's record.'' Id. at 2650.
Moreover, Congress expected that a deemed spouse would receive benefits
``on the same basis as if * * * she were a legal spouse * * *.'' Id.
The Social Security Administration amended its disability regulation to
reflect the statutory changes (see 20 CFR 404.346); it has not yet
amended the part 410 regulations, which govern its administration of
Part B of the BLBA. See 20 CFR part 410, subpart C (``Relationship and
Dependency'').
The proposed changes to Secs. 725.204 and 725.214 amend the
dependent and surviving spouse relationship criteria to conform to
changes in the SSA. Such changes are required for the regulations
affecting surviving spouses, given the incorporation of the SSA
statutory definitions of ``dependent'' and ``widow''. Moreover,
Congress has previously evidenced the intent to harmonize the SSA and
the BLBA statutory provisions which address marital status (see
Explanation of proposed changes to Sec. 725.212); eliminating the
``deemed'' spouse bar is consistent with this congressional policy.
20 CFR 725.209, .219, .221, .222. These provisions should reflect
the age limit for a disabled dependent currently specified in 42 U.S.C.
402(d)(1)(B), as incorporated into the BLBA by 30 U.S.C. 902(g).
Section 402(g)(ii) of the BLBA defines ``child'' to include an
individual who is disabled by SSA standards, provided such disability
``began before the age specified in section 202(d)(1)(B)(ii) of the
Social Security Act * * *.'' Congress has raised the age for the onset
of disability for the SSA program from 18 to 22 since Sec. 725.209 was
promulgated. Because the BLBA specifically incorporates its disability
age limit from the SSA, the regulation should be changed to reflect the
change in the SSA. Finally, the parenthetical cross-reference to 20 CFR
404.320(c) in Sec. 725.209(b)(1) is corrected. The SSA regulations
which concern full-time student criteria are 20 CFR 404.367 through
404.369.
20 CFR 725.212. Proposed paragraph (b) reflects the Department's
position that the BLBA and pertinent legislative history require the
payment of full monthly survivor's benefits to each surviving spouse
and surviving divorced spouse who satisfies the entitlement criteria,
regardless of the existence of any other spouse who also qualifies for
benefits.
Prior to 1992, the Department's policy regarding the allocation of
benefits between (or among) multiple surviving spouses of the same
miner, as stated in the ``Coal Mine (BLBA) Procedure Manual,'' limited
each spouse to less than full monthly benefits:
If more than one claimant is found entitled, no more than the
maximum amount of benefits for the number of beneficiaries involved
may be paid under Part C. (e.g., where a surviving spouse and a
divorced spouse both qualify, no more than the claimant plus one
dependent benefits may be paid). This maximum amount is divided
equally between the eligible beneficiaries of equal status.
Ch. 2-900 para. 8(b) (February 1980). In 1992, the Department
reconsidered this position and concluded that each surviving spouse who
meets the criteria for eligibility is entitled to the payment of the
full benefits due a surviving spouse. This change in position was the
result of further reflection on pertinent provisions of the BLBA and
their legislative history.
The BLBA's definition of ``widow'' must be considered in the
context of the Social Security Act's (SSA) definition because SSA's
definition is incorporated into the BLBA, and Congress has consistently
attempted to harmonize the two provisions. Before 1965, the SSA awarded
widow's benefits only to a surviving spouse. See Social Security
Amendments of 1965, Pub. L. No. 89-97, Sec. 308(b)(1), 79 Stat. 286
(1965). The legislative history to the 1965 amendment explicates the
intended operation of the changed definition:
Payment of a wife's or widow's benefit to a divorced woman would
not reduce the benefit paid to any other person on the same social
security account and such wife's or widow's benefit would not be
reduced because of other benefits payable on the same account.
S. Rep. No. 404, 89th Cong., 1st Sess. (1965), reprinted in 1965
U.S.C.C. & A.N. 1943, 2047. See ``Social Security Program Operations
Manual (POMS)'' RS 00615.682 (both surviving spouses and surviving
divorced spouses awarded full [100 percent] benefits).
In 1972, Congress amended the BLBA's definition of a ``widow'' to
permit the payment of benefits to a miner's surviving divorced spouse.
That definition, as amended, now reads:
Such term [widow] also includes a `surviving divorced wife' as
defined in section 216(d)(2) of the Social Security Act who for the
month preceding the month in which the miner died, was receiving at
least one-half of her support, as determined in accordance with
regulations prescribed by the Secretary, from the miner, or was
receiving substantial contributions from the miner (pursuant to a
written agreement) or there was in effect a court order for
substantial contributions to her support from the miner at the time
of his death.
30 U.S.C. 902(e). The legislative history of the amendment indicates
that Congress altered the definition of ``widow'' to make it comport
with the SSA definition:
The term `widow' in section 402(e) is likewise redefined to
conform to the Social Security Administration definition.
S. Rep. No. 743, 92nd Cong., 2d Sess. (1972) reprinted in 1972 U.S.C.C.
& A.N. 2305, 2332. See Wolfe Creek Collieries v. Robinson, 872 F.2d
1264, 1266-67 (6th Cir. 1989). Consequently, by 1972 both statutes
provided a full widow's benefit to a surviving spouse and a surviving
divorced spouse. 42 U.S.C. 402(e).
Section 412 of the BLBA also supports the payment of full benefits
to each qualified survivor. That provision states in pertinent part:
In the case of death of a miner due to pneumoconiosis or, except
with respect to a claim filed under part C of this subchapter on or
after the effective date of the Black Lung Amendments of 1981, of a
miner receiving benefits under this part, benefits shall be paid to
his widow (if any) at the rate the deceased miner would receive such
benefits if he were totally disabled.
30 U.S.C. 922(a)(2). A miner, as the primary beneficiary on a claim, is
[[Page 3351]]
clearly entitled to a full basic benefit. 30 U.S.C. 922(a)(1); 20 CFR
725.520. Upon the miner's death, the ``widow,'' as the primary
beneficiary, must be compensated in like fashion. Id. Section 902(e)
defines the term ``widow'' to include both a surviving spouse and a
surviving divorced spouse. 30 U.S.C. 902(e). Nothing in Sec. 922
provides for an alternative payment amount if a miner is survived by
two widows. Consequently, the plain language of the statutory payment
provisions mandates that both spouses should receive a full (100
percent) basic benefit amount. 30 U.S.C. 922(a)(2). To utilize any
other methodology would require payment to each ``widow'' at less than
the statutorily prescribed ``rate the deceased miner would receive if
he were totally disabled''. 30 U.S.C. 922(a)(2).
20 CFR 725.213. Section 725.213(b)(3) is no longer necessary in
view of the changes made to Sec. 725.204 to confer equal status on the
spouse and ``deemed spouse''. A new paragraph (c) clarifies
administrative practice with respect to survivor beneficiaries who
become ineligible for benefits, but later reestablish eligibility. The
most common reason for losing eligibility (among surviving spouses) is
remarriage; if the remarriage ends through death or divorce, the ex-
beneficiary may apply for a return to entitlement. The individual need
only notify the Office and provide such evidence as may be required to
reestablish eligibility. The new paragraph also makes clear that the
individual is not required to reprove the merits of entitlement.
20 CFR 725.215. Delete paragraph (g)(3)'s reference to ``section''
and replace with ``paragraph''. A miner's surviving spouse may meet the
dependency requirement pursuant to paragraph (g) if the marriage lasted
at least nine months. If the marriage lasted fewer than nine months, a
spouse may nevertheless be deemed the miner's dependent if the miner
dies in an accident or in the line of duty. The purpose of paragraph
(g)(3) is to preclude a survivor's reliance on the exception to the
nine-month marriage rule if the adjudication officer concludes that the
miner would not have lived nine months in any event. Use of the
technical word ``section'', however, makes the language of the entire
regulation inapplicable. Consequently, the reference should be changed
to confine paragraph (g)(3) to its proper context. This change is
consistent with the structure and meaning of the Social Security
Administration's parallel regulation for Part B beneficiaries, 20 CFR
410.360(b).
20 CFR 725.223. Section 725.223 should be changed to reflect the
age limit for a disabled dependent currently specified in 42 U.S.C.
402(d)(1)(B), as incorporated into the BLBA by 30 U.S.C. 922(a)(5). A
new paragraph (d) clarifies administrative practice with respect to
sibling beneficiaries who become ineligible for benefits due to
marriage, but later reestablish eligibility. See the Explanation
accompanying proposed Sec. 725.209 for changing the onset date for a
dependent beneficiary's disability. See the Explanation accompanying
proposed Sec. 725.213(c) for explaining the procedures for the
restoration of entitlement after termination due to marriage.
Subpart C--Filing of Claims
20 CFR 725.306(a). The proposed change is intended to ensure that
another proposed change, in the definition of the term ``benefits,'' 20
CFR 725.101(a)(6), does not produce unintended consequences in cases
where a claimant seeks to withdraw a claim. Currently,
Sec. 725.306(a)(3) prohibits a claimant from withdrawing a claim if he
has received benefits, defined as payments ``on account of disability
or death due to pneumoconiosis,'' unless such benefits have been
repaid. The Department has proposed amending the definition of the term
``benefits'' to include amounts paid from the Trust Fund to provide the
claimant with a complete pulmonary evaluation as required by 30 U.S.C.
923(b). Section 725.306 must also be amended, however, to make clear
that the Department will not require reimbursement of the amount spent
on the claimant's complete pulmonary evaluation as a condition for
withdrawing a claim. The proposed language is similar to language in 20
CFR 725.465(d), which provides an administrative law judge with the
authority to dismiss claims for cause only if the Trust Fund is
reimbursed for any payments made pursuant to 20 CFR 725.522.
20 CFR 725.309. The Department's current regulation governing the
processing and adjudication of subsequent or additional claims for
benefits has been a cause of much litigation. Subsequent claims for
benefits, often misleadingly referred to as duplicate claims, are those
applications filed by the same individual after final denial of a prior
claim. Initially, the litigation dealt with procedural issues. For
example, in Lukman v. Director, OWCP, 11 Black Lung Rep. (MB) 1-71
(Ben. Rev. Bd. 1988), rev'd, Lukman v. Director, OWCP, 896 F.2d 1248
(10th Cir. 1990), the Benefits Review Board held that a claimant was
not entitled to a hearing before an administrative law judge on the
issue of whether he had established a material change in conditions, a
requirement under the current regulations for consideration of the
merits of a subsequent claim.
After the Tenth Circuit reversed the Board's decision, subsequent
claims litigation focused on substantive issues, particularly the type
of evidence a claimant must submit to establish a ``material change in
conditions,'' and thereby escape denial of the subsequent claim on the
grounds of the prior denial. The appellate courts are currently divided
on this issue. The Seventh Circuit has rejected the Department's
interpretation of the regulation, holding that the claimant must
establish that his condition is substantially worse than at the time of
the prior denial in order to avoid another denial, or that ``even a
slight worsening could be and was a material change in condition.''
Sahara Coal Company v. Director, OWCP, 946 F.2d 554, 558 (7th Cir.
1991). The Third, Fourth, and Sixth Circuits gave deference to the
Department's interpretation, Labelle Processing Co. v. Swarrow, 72 F.3d
308 (3d Cir. 1995); Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th
Cir. 1996); Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir.
1994), and held that proof of a change in one of the necessary elements
of entitlement, such as the existence of pneumoconiosis, demonstrates a
material change in condition. The ALJ must thereafter weigh all of the
evidence to determine whether the claimant is entitled to benefits. The
Tenth Circuit recently fashioned yet another interpretation of the
regulation. Wyoming Fuel Co. v. Director OWCP, ____ F.3d ____, No. 94-
9576 (10th Cir. July 23, 1996).
This litigation is attributable, in substantial part, to the
context in which the relevant language was drafted. First proposed on
April 25, 1978 as part of an extensive revision of the regulations
governing the processing and adjudication of claims under the Black
Lung Benefits Act, Sec. 725.309 required that a subsequent claim for
benefits be denied on the grounds of the prior denial. 43 FR 17743,
Apr. 25, 1978. The Department received many comments objecting to the
prohibition against filing a new claim by a miner ``whose condition has
worsened or progressed to total disability.'' 43 FR 36785, Aug. 18,
1978. The Department agreed, and, in an effort to remove the
prohibition, added a clause allowing such claims if ``the deputy
commissioner determines that there has been a material change in
[[Page 3352]]
conditions.'' Id. The Department did not foresee that this wording
would cause such confusion.
At the heart of the current litigation is considerable
misunderstanding about the extent to which the common law concepts of
res judicata, or claim preclusion, and collateral estoppel, or issue
preclusion, apply to the adjudication of black lung benefits claims.
The proposed regulation is intended to resolve both questions.
Initially, the Department acknowledges that the principles of claim
preclusion are applicable to claims under the Act. Pittston Coal Group
v. Sebben, 488 U.S. 105, 122-23 (1988). That applicability, however, is
limited in two important respects. First, Sec. 22 of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 922, as incorporated into
the Black Lung Benefits Act by 30 U.S.C. 932(a), permits the reopening
and readjudication of a denied claim within one year of the order
denying benefits, based on a showing of either a mistake in a
determination of fact or a change in conditions. This reopening
provision, commonly called the right to modification, is a
Congressionally mandated exception to the application of res judicata.
Second, and more important for purposes of the Department's treatment
of subsequent claims, claim preclusion bars only an attempt to
relitigate a cause of action that was previously resolved; it has no
effect on the litigation of a cause of action which did not exist at
the time of the initial adjudication. Lawlor v. National Screen Serv.
Corp., 349 U.S. 322, 328 (1955); ``Restatement (Second) of Judgments''
Sec. 24 cmt. f (1982).
Nowhere is the applicability of this second exception more readily
understood than in the context of workers' compensation. ``It is almost
too obvious for comment that res judicata does not apply if the issue
is claimant's physical condition or degree of disability at two
entirely different times, particularly in the case of occupational
diseases.'' 3A Larson, ``The Law of Workmen's Compensation''
Sec. 79.92(f) (1982). In light of the Department's longstanding belief
in the progressive nature of pneumoconiosis (see Explanation
accompanying Sec. 718.201), the Department believes that the preclusive
effect of a previous denial of benefits should be limited. Proposed
paragraph (d)(5) reflects the most readily apparent application of
claims preclusion. It provides that no benefits are payable, based on a
subsequent claim, for the period of time which was at issue in the
prior proceeding. The regulation thus gives full effect to Sec. 22's
one-year limitation for reopening prior claims based on an allegation
of a mistake in a determination of fact or a change in conditions.
The Department's experience in administering the Black Lung
Benefits Act suggests, however, that the long latency period which
characterizes pneumoconiosis and the disease's progressive nature do
provide cause for allowing a claimant to seek benefits by filing a new
claim more than one year after the denial of a previous claim based on
a change in conditions. Thus, where the evidence establishes a
worsening in the miner's physical condition, the proposed regulation
permits adjudication of a new cause of action based on that worsening.
This adjudication will address the claimant's condition during a
completely different, and later, time period.
The Department recognizes that securing proof of a change in the
applicable conditions of entitlement may be difficult. As the Seventh
Circuit recognized in Sahara Coal, ``[t]o require proof that [the
claimant] was not in fact totally disabled as a result of black lung
disease, or that the extent of his disease or disability was unclear,
would complicate the proceeding unduly.'' 946 F.2d at 558. Although the
Seventh Circuit recognized this difficulty, it nonetheless required the
claimant to bear a burden of proof that the Department believes is too
high: ``he should be required to go further and show that he had missed
the disability threshold the first time so that even a slight worsening
could be and was a material change in his condition.'' Id.
The proposed regulation addresses this evidentiary problem, but in
a manner which recognizes the difficulty inherent in developing medical
evidence documenting a claimant's medical condition at some time in the
past. Paragraph (d)(3) thus creates a rebuttable presumption, based on
a showing that the miner's physical condition has worsened. If the new
evidence submitted by the parties establishes at least one of the
applicable conditions of entitlement previously resolved against the
miner, it is presumed that the miner's physical condition has changed
since the denial of his earlier claim. For example, the miner may
establish that his respiratory impairment is now totally disabling, or
that he has now developed pneumoconiosis. Once invoked, the presumption
may be rebutted if the party opposed to the claimant's entitlement
demonstrates that the denial of the prior claim was erroneous as a
matter of law.
The Department intends that an operator shall not be entitled to
rebut the presumption by taking a position contrary to the position it
adopted in the litigation of the prior claim. For example, where the
operator argued in the prior claim that the miner was not totally
disabled due to pneumoconiosis arising out of coal mine employment, it
may not, in an attempt to rebut the presumption of a change in the
miner's condition, argue that substantial evidence in the prior claim
supported a benefit award.
If the presumption is properly rebutted, the claimant nevertheless
will be entitled to benefits upon a showing that the miner's physical
condition, albeit totally disabling earlier, has significantly
deteriorated since the time of the prior denial. Under the Act, a
totally disabling respiratory impairment is one which prevents the
miner from performing his usual coal mine work. Where the miner's usual
coal mine work required significant physical exertion, a relatively
small respiratory impairment may be totally disabling. Accordingly, the
miner's respiratory condition may continue to deteriorate even after it
reaches the point where it would be considered totally disabling under
the Act.
The operator or Fund may also use traditional principles of issue
preclusion to rebut the presumption. Those principles prohibit the
relitigation of issues where the party against whom the bar is asserted
had a full and fair opportunity to litigate the issue in question, and
resolution of the issue was necessary to the prior judgment. Montana v.
United States, 440 U.S. 147, 153 (1979); ``Restatement (Second) of
Judgments'' Sec. 29 (1982). Thus, where the original claim was denied
solely on the basis that the claimant was not a miner, and the claimant
has not returned to work, relitigation of that issue will be barred.
Because a claimant must establish that he worked as a miner in order to
receive benefits, the subsequent claim must also be denied.
If the presumption is not rebutted, the fact-finder must consider
all of the relevant evidence of record, including the old evidence, in
order to determine whether the claimant is entitled to receive
benefits. The regulation thus effectuates the position advanced by the
Department and accepted by the Third Circuit in Labelle Processing, the
Fourth Circuit in Lisa Lee Mines, and the Sixth Circuit in Sharondale
Corp. Accordingly, paragraph (d)(1) authorizes the admission into the
record of any evidence developed in connection with the earlier claim.
To the extent that the earlier evidence remains relevant to an
evaluation of the claimant's current
[[Page 3353]]
physical condition, it must be considered by the adjudication officer.
In addition, both the claimant and the party opposing the claimant's
entitlement will be able to submit two new pulmonary evaluations or
consultative reports, in accordance with the limits set forth in
proposed Sec. 725.414.
Paragraph (d)(4) recognizes that, once a change in one of the
applicable conditions has been established, the relitigation of issues
previously decided is not precluded. The only exceptions are those
issues to which the parties stipulated and those issues which were not
contested pursuant to Sec. 725.463. For example, assume that in a prior
adjudication an administrative law judge found that the claimant was a
miner but that he did not suffer from pneumoconiosis. The ALJ
accordingly denied benefits, and the claimant did not appeal. In a
subsequent claim, the claimant establishes that he now suffers from
pneumoconiosis, and argues that the operator is precluded from
relitigating his status as a miner. The claimant is incorrect. Because
the operator was not aggrieved by the denial of benefits, it could not
appeal the ALJ's decision to the Benefits Review Board to seek reversal
of the finding that the claimant was a miner. The operator thus did not
have a full and fair opportunity to litigate the claimant's status, and
may not be bound by the prior finding. For the same reason, once a
claimant establishes a change in an applicable condition of
entitlement, such as the extent of disability, he is not precluded from
relitigating any other condition of entitlement, such as the existence
of pneumoconiosis.
Although the Department believes that parties must be allowed to
relitigate issues decided against them in a prior claim as a matter of
fairness, no such concerns underlie the treatment of uncontested issues
(see Sec. 725.463) and other stipulations into which the parties
entered during the adjudication of the prior claim. Where a party's
waiver of its right to litigate a particular issue represents a knowing
relinquishment of that right, such waiver should be given the same
force and effect in subsequent litigation of the same issue.
The proposed regulation also recognizes that a claimant whose claim
has been denied may file a new application within one year of an
earlier denial. Traditionally, such a filing has been considered a
request for modification, Consolidation Coal Co. v. Worrell, 27 F.3d
227, 230 (6th Cir. 1994), and the proposed regulation codifies this
practice. Treating a new application as a modification request is
advantageous for several reasons. First, because it allows the earlier
claim to be reopened, a modification request entitles the claimant to
have his request adjudicated under the entitlement standards in effect
at the time the original claim was filed. Second, if the claimant
establishes a mistake in a determination of fact, modification entitles
him to receive benefits from an earlier date, i.e., either from the
date on which the medical evidence establishes the onset of total
disability due to pneumoconiosis, or, if the evidence does not
establish that date, from the date the original application was filed.
Eifler v. Office of Workers' Compensation Programs, 926 F.2d 663, 666
(7th Cir. 1991).
20 CFR 725.310. Paragraph (b) should be amended to reflect changes
to the procedural regulations restricting the amount of evidence each
party to a claim may submit. Proposed Sec. 725.414 limits the parties
to two pulmonary evaluations or consultative reports in the initial
adjudication of the claim. This limitation would be easily avoided,
however, if parties were free to submit whatever additional evidence
they desired by filing a request for modification. Consequently, the
proposed regulation places an additional restriction, of one pulmonary
evaluation or consultative report, on the submission of evidence in
modification proceedings. See explanation of changes Sec. 725.414.
Proposed paragraph (c) attempts to reconcile a number of court of
appeals cases which address the scope of the district director's
authority to conduct modification proceedings under Sec. 22 of the
LHWCA, 33 U.S.C. 922, as incorporated by 30 U.S.C. 932(a). Four
courts--the Seventh, Ninth, Tenth, and Eleventh Circuits--have held
that a district director lacks the authority to modify a decision
issued by an administrative law judge. Director, OWCP v. Peabody Coal
Co., 837 F.2d 295 (7th Cir. 1988); Director, OWCP v. Palmer Coking Coal
Co., 867 F.2d 552 (9th Cir. 1989); Director, OWCP v. Kaiser Steel
Corp., 860 F.2d 377 (10th Cir. 1988); Director, OWCP v. Drummond Coal
Co., 831 F.2d 240 (11th Cir. 1987). In all four cases, the district
director had initiated modification proceedings in order to correct
allegedly erroneous determinations imposing liability on the Black Lung
Disability Trust Fund.
In contrast, the Fourth and Sixth Circuits have held that
modification proceedings must be initiated before a district director.
Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278 (6th Cir. 1987); Lee v.
Consolidation Coal Co., 843 F.2d 159 (4th Cir. 1988). In both of these
cases, claimants sought to modify denials of benefits by filing
requests for modification. In its decision, the Sixth Circuit correctly
compared the initial stages of modification proceedings to the initial
stages of a new claims proceeding. 818 F.2d at 1282. During these
stages the district director may resolve all of the relevant issues,
provided he has the consent of the parties. Thus, the district director
may issue a proposed decision and order pursuant to 20 CFR 725.418. If
no party lodges a timely objection, the proposed decision and order
will become effective and final. 20 CFR 725.419(d). Thus, where no
party objects to the proposed action, and the modification proceedings
were initiated by the claimant or the responsible operator, it is
unnecessary as well as inefficient to refer the modification request
for a hearing.
In reconciling the courts of appeals opinions, the proposed
regulation distinguishes between cases in which the parties request
modification, or in which the original adjudication of the claim did
not proceed beyond the district director, and those in which the
district director initiates modification proce |
