20 C.F.R. Part 727, Subpart B
PART 727-REVIEW OF PENDING AND DENIED CLAIMS UNDER THE BLACK LUNG BENEFITS REFORM ACT OF 1977
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Subpart B-Initial Review of Pending and Denied Claims
§ 727.101 Who is entitled to review.
(a) By the Secretary of HEW. Any person who filed a claim for benefits under part B of title IV of the Act, excluding miners who filed under section 415 of the act between July 1 and December 31, 1973, and whose claim was either pending or had been denied as of March 1, 1978 (see §727.102), may upon notification by the Secretary of Health, Education, and Welfare, elect to have the claim reviewed by the Secretary of Health, Education, and Welfare.
(b) By the Secretary of Labor. (1) Any person who elects review by the Social Security Administration under para- graph (a) of this section and whose claim cannot be approved after such review shall have the claim reviewed by the Secretary of Labor.
(2) Any person who is eligible to have his or her claim reviewed under paragraph (a) of this section may elect to have the claim referred directly to the Secretary of Labor for review.
(3) Any person who has filed a claim for benefits under section 415 or part C of title IV of the Act and whose claim was pending or had been denied (see §727.102) on or before March 1, 1978, shall have the claim automatically reviewed by the Secretary of Labor. (But see § 727.103.)
(4) Any claimant whose claim is subject to review by the Secretary of Labor under this paragraph shall have the right to submit additional evidence to the Secretary of Labor in support of such claim.
§ 727.102 "Pending" and "denied" claim defined.
(a) Applicability. This section defines the terms "pending" and "denied" claims for purposes of this part only, and the following definitions shall be applicable only to claims filed with the Secretary of Labor under section 415 and part C of title IV of the Act.
(b) Denied claim defined. For the purposes of this part, a claim filed with the Secretary of Labor shall be consid- ered a denied claim if:
(1) The claim was filed before March 1, 1978; and
(2) The claimant's entitlement to benefits has been denied for any reason by a district director in the Office of Workers' Compensation Programs, U.S. Department of Labor, an administra- tive law judge assigned to determine black lung claims by the Secretary of Labor, the Benefits Review Board in the U.S. Department of Labor, or an appropriate U.S. court of appeals; and (3) No further proceedings before a district director, administrative law judge, the Benefits Review Board, or a U.S. court of appeals are pending; and (4) The time has expired to seek further consideration of such denial; or (5) The claim has been declared abandoned by a district director or administrative law judge (see §725.409 of this subchapter which replaces 38 FR 26059).
(c) Pending claim defined. For the purposes of this part and except as provided in §§727.402 and 727.403, a claim filed with the Secretary of Labor shall be considered a pending claim if:
(1) The claim was filed before March 1, 1978; and
(2) The claim is before a district director, administrative law judge, the Board, or a U.S. court of appeals for consideration; or
(3) The time permitted to seek further consideration of the claim has not expired.
(d) Withdrawn claims. A claim for benefits which has been previously withdrawn at the request of the claimant (see §725.306 of this subchapter) shall not be considered a pending or denied claim for purposes of this part. Any person who has voluntarily withdrawn his or her claim from consideration may file a new claim for benefits under part 725 of this subchapter.
(a) A person who filed a claim for benefits with the Social Security Administration and whose claim has been approved by that agency and who has also filed a claim with the Secretary of Labor which was pending or had been denied as of March 1, 1978, shall be entitled to a review of such claim under this part.
(b) A person who has filed a claim with the Social Security Administration which was pending or had been denied by that agency as of March 1, 1978, and who has also filed a claim with the Secretary of Labor that has been approved, shall be entitled to elect review of the pending or denied claim by the Social Security Administration or by the Department of Labor subject to the limitation contained in paragraph (e) of this section.
(c) A person who has filed a claim both with the Social Security Administration and the Department of Labor and whose claims were either pending with or denied by both agencies as of arch 1, 1978, shall have the claim reviewed by the Social Security Administration if such review is requested by the claimant. If the claim is not approved by the Social Security Administration it shall be forwarded to the Secretary of Labor for further review as provided in §727.106. During the pendency of review proceedings by the Social Security Administration, if any, no action shall be taken by the Secretary of Labor with respect to the claim which is pending or had been denied by the Secretary of Labor. If the claimant does not respond to notification of his or her right to review by the Social Security Administration within 6 months of such notice (see §727.104), unless the period is enlarged for good cause shown, the Secretary of Labor shall proceed under this part to complete processing of the claim originally filed with the Secretary of Labor. If the claimant, upon notification of his or her right to review by the Social Security Administration (see §727.104) requests that the claim originally filed with the Administration be forwarded to the Department of Labor for review, or if more than one claim has been filed with the Secretary of Labor by the same claimant, such claims shall be merged and processed with the first claim filed with the Department of Labor.
(d) A person may exercise the right of review provided in paragraph (c) of this section at the same time such person is pursuing an appeal of a previously denied part B claim under the law as it existed prior to March 1, 1978. If the part B claim is ultimately approved as a result of the appeal, the claimant must immediately notify the Secretary of Labor and, where appropriate, the coal mine operator, and all duplicate payments made under part C shall be considered an overpayment and arrangements shall be made to insure the repayment of such overpayments to the fund or an operator as appropriate. (e) In the case of a claimant who has filed one or more claims with both the Social Security Administration and the Department of Labor, under no cir- cumstances are duplicate benefits payable for concurrent periods of eligibility.
§ 727.104 Review by the Social Security Administration.
(a) Notification. The Social Security Administration will notify each claimant who has filed a claim for benefits under part B of title IV of the Act, excluding miners who filed under section 415 of the Act, and whose claim was either pending or had been denied on or before March 1, 1978, that upon the request of the claimant such claim shall be either:
(1) Reviewed by the Social Security Administration on the basis of the evidence contained in the claimant's file, in accordance with the amendments made by the Black Lung Benefits Reform Act of 1977; or,
(2) Referred by the Social Security Administration to the Office of Workers' Compensation Programs in the Department of Labor for review based on the evidence contained in the claim- ant's file and any additional evidence the claimant seeks to submit, in accordance with the amendments made by the Black Lung Benefits Reform Act of 1977.
(b) Response to notification. Upon receipt of a claimant's response or a response on behalf of a claimant to the notice required by paragraph (a) of this section the Social Security Administration will undertake to review the claim or refer the claimant's file to the Office for processing under §727.107. If there is no response to notification sent in accordance with paragraph (a) of this section within 6 months from the date on which notice is sent, unless the period is enlarged for good cause shown, the claimant shall be considered to have waived the right to review by the Social Security Administration. The date on which notice is sent and the date on which a claimant's response is received shall be noted on an appropriate form by the Social Security Administration.
(c) Change of election . A Part B claimant who has elected review by the Secretary of Labor may in writing revoke such election and elect review by the Social Security Administration at any time before being notified of the district director's initial findings on the claim (§725.410 of this subchapter). If such a revocation is made, the district director shall return the claimant's file to the Social Security Administration for appropriate processing. All documents received by the district director, except the documents changing the claimant's election, shall be deleted from the claimant's file before it is returned to the Social Security Administration.
(d) Social Security Administration review procedures. Where the Social Security Administration determines that the claimant is eligible, the Administration will forward the claim file together with a copy of such determination to the Office for processing and payment in accordance with §727.105 and shall so notify the claimant. Where it is determined that the claim cannot be approved, the Social Security Administration will transfer the claimant's file to the Office for further review in accordance with §727.106, and shall so notify the claimant.
§ 727.105 Action by the Office, Social Security approval.
(a)(1) Where the Social Security Administration determines that the claimant is eligible for benefits upon review under §727.104(c), the claimant's file and certification of approval for payment of benefits will be forwarded to the Department of Labor. Upon receipt of the file and certification, the Office shall immediately authorize the payment of all benefits due to the claimant from the fund, in accordance with §725.522 of this subchapter. Such payments shall commence within not more than 30 days. Payments shall include all past due benefits, augmentation for dependents and medical expenses to the extent supported by information in the file.
(2) After authorizing payment, the district director shall commence verification of the information in the file on which authorization of benefit payments was based. The district director shall request current information from the claimant pertaining to any matter affecting the amount of benefits payable or any additional information which may be necessary to establish a more detailed and complete history of the miner's employment. After receipt of such information, the district director shall determine the amount of benefits actually payable to the claimant and shall, if necessary, increase, decrease or terminate benefit payments as appropriate in accordance with subpart G of part 725 of this subchapter. The district director shall then issue a proposed decision and order in accordance with the procedure set forth in §§725.418 and 725.419 of this subchapter, except as provided in paragraph (b)(1) of this section. If the information received establishes that there has been an underpayment or overpayment, benefit payments shall be corrected retroactive to January 1, 1974.
(3) If the information requested is not supplied to the district director within 60 days following such request, unless the period is enlarged for good cause shown, the district director shall issue an order to show cause why benefit payments should not be suspended and all benefits previously paid should not be declared an overpayment (see §725.540 of this subchapter). If the claimant submits a satisfactory response to such order, and within a reasonable time submits sufficient evi- dence to allow the district director to determine the actual amount of benefits payable, the district director shall issue a proposed decision and order awarding benefits in accordance with §§725.418 and 725.419 of this subchapter except as provided in paragraph (b)(1) of this section. If there is no satisfactory response to the district director's order to show cause in the time allotted, the district director may issue a proposed decision and order in accordance with §§725.418 and 725.419 of this subchapter or proceed in accordance with §725.409 of this subchapter. Benefit payments shall not be terminated and no overpayment shall be declared on account of an unrepresented claimant's failure to respond to a show cause order until the district director has at- tempted to contact the claimant personally or by telephone. In the case of an unrepresented claimant, a response to a show cause order may be given orally, in person or by telephone, except that such a response shall not excuse the claimant from submitting necessary information in writing.
(b)(1) If the district director determines that there is a coal mine employer which may be liable for the payment of benefits to the claimant, the district director shall identify and notify such operator of its possible liability as provided in §725.412 of this subchapter, and shall proceed to adjudicate the claim in accordance with the appropriate provisions of subparts D and E of part 725 of this subchapter. The identification and notification of an operator shall be made as soon as possible after receipt of the claimant's file [sic]
(2) An employer notified under this section shall have the right to have the claimant examined by a physician selected by such operator (see §725.414 of this subchapter). If an employer contests the claim, the claimant may obtain and submit additional medical evidence to the district director within the time permitted by §725.414 of this subchapter for the submission of the employer's evidence. Evidence submitted by a claimant under this paragraph shall be paid for by the fund, if authorized by the district director, and shall be reimbursable to the fund by the employer, if the employer is found liable for the claim (see §725.407 of this subchapter).
(c) Except as is otherwise provided in this section, a determination of entitlement made by the Social Security Administration under this section is binding on the district director.
(d) If it is determined by an administrative law judge, the Benefits Review Board, or a U.S. court that the determination of entitlement made by the Social Security Administration was incorrect, the payment of benefits shall terminate and any benefits paid shall be considered an overpayment subject to collection in accordance with § 725.540 of this subchapter.
§ 727.106 Action by the Office, insufficient evidence for Social Security approval.
(a) In the case of a claim which has not been approved for benefits by the Social Security Administration under §727.105, the claim shall be transferred by the Administration to the Office and the Office shall follow the procedures set forth in this section. There shall be no further consideration of a claim described in this paragraph except as provided in this part.
(b) Upon receipt of the claimant's file from the Social Security Administration, the Office shall assign the claim to a district director who may:
(1) Assist the claimant in obtaining additional medical evidence or request that such evidence be submitted (see §§ 725.405-725.408 of this subchapter); or
(2) Request such additional documents or information as may be necessary to establish the amount of benefits which may be payable, or to establish a more detailed and complete history of the nature and duration of the miner's employment.
(c) Based upon the evidence developed under this section, if any, and the information contained in the claimant's original file, the district director may make an initial finding with re- spect to the eligibility of the claimant and shall proceed to adjudicate the claim under §§ 725.409-725.421 of this subchapter, which action may include the notification and participation of a coal mine employer and the submission of additional evidence as is appropriate.
§ 727.107 Action by the Office, Social Security referral without prior review.
(a) In the case of a claim which is referred at the claimant's request by the Social Security Administration to the Office under § 727.104(a)(2) without prior review by the Social Security Administration, the Office shall follow the pro- cedures set forth in this section.
(b) Upon receipt of a claimant's file the claim shall be assigned to a district director who shall examine the evidence contained in the file to determine whether the claim may be ap- proved in light of the amendments made by the Black Lung Benefits Reform Act of 1977.
(c) If it is determined by the district director that the evidence in the file supports a finding of entitlement to benefits the district director may:
(1) Request up-to-date information from the claimant pertaining to any matter affecting the amount of benefits payable (see subpart G of part 725 of this subchapter); and (2) request any additional information or verification which may be necessary to establish a more detailed and complete history of the miner's employment, for the purpose of determining the identity of any coal mine employer which may be liable for the payment of the claim, and for such other purposes as may be appropriate. Upon receipt of any additional information requested under this paragraph, or if the claimant fails to supply such information, the district director may make an initial finding with respect to the eligibility of the claimant, notify a coal mine employer, if any, of its possible liability for the claim and proceed to adjudicate the claim under §§725.409-725.421 of this subchapter.
(d) If it is determined by the district director that the evidence on file is insufficient to support a finding of enti- tlement with respect to a claim reviewed under this section, the district director may:
(1) Assist the claimant in obtaining additonal [sic] medical evidence or request that such evidence be submitted (see §§725.405-725.408 of this subchapter); or (2) request such additional documents or information as may be necessary to establish the amount of benefits which may be payable, or to establish a more detailed and complete history of the nature and duration of the miner's employment. Based upon evidence devel- oped under this paragraph, if any, and the information contained in the claimant's original file, the district director may make an initial finding with respect to the eligibility of the claimant and shall proceed to adjudicate the claim under §§725.409-725.421 of this subchapter.
§ 727.108 Action by the Office, Department of Labor pending or denied claim.
(a) In the case of a claim filed with the Office under section 415 or part C of title IV of the act which is pending or has been denied as of March 1, 1978, the Office shall follow the procedures set forth in this section.
(b) The district director shall examine the evidence contained in the file to determine whether the claim may be approved in light of the amendments made by the Black Lung Benefits Reform Act of 1977.
(c) The district director may: (1) Request up-to-date information from the claimant pertaining to any matter affecting the amount of benefits payable (see subpart G of part 725 of this subchapter); and (2) request any additional information or verification which may be necessary to establish a more detailed and complete history of the miner's employment, for the purpose of determining the identity of any coal mine employer which may be liable for the payment of the claim, and for such other purposes as may be appropriate. Upon receipt of any additional information requested under this paragraph, or if the claimant fails to supply such information, the district director may notify a coal mine employer, if any, of its possible liability for the claim and proceed to adjudicate the claim under §§ 725.409-725.421 of this subchapter.
(d) If it is determined by the district director that the evidence on file is insufficient to support a finding of enti- tlement with respect to a claim reviewed under this section, the district director may:
(1) Assist the claimant in obtaining additional medical evidence or request that such evidence be submitted (see §§725.405-725.408 of this subchapter); or (2) request such additional documents or information as may be necessary to establish the amount of benefits which may be payable, or to establish a more detailed and complete history of the nature and duration of the miner's employment. Based upon the evidence de- veloped under this paragraph, if any, and the information contained in the claimant's original file, the district director may make an initial finding with respect to the eligibility of the claimant and shall proceed to adjudicate the claim under §§725.409-725.421 of this subchapter.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, in the case of a claim filed by a part B beneficiary under part C of the act prior to March 1, 1978, for such additional benefits as may be available, the Department shall accept the Social Security Administration's documented finding of entitlement as its initial determination of eligibility.
§ 727.109 Hearings and appeals, parties.
(a) If a hearing before an administrative law judge is necessary in connection with a claim reviewed under this part, the hearing shall be conducted in accordance with the procedures set forth in subpart E of part 725 of this subchapter. An appeal from a decision of an administrative law judge shall be considered by the Benefits Review Board in accordance with the procedures set forth in parts 801 and 802 of this title.
(b) parties to proceedings conducted in connection with a claim reviewed under this section, matters relating to the representation of parties and the right of such representative to obtain a fee for services rendered, the powers of adjudication officers and the service of papers or documents shall be governed by the appropriate provisions contained in subparts C, D, and E of part 725 of this subchapter.