Regulations implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended

SUMMARY: The Department of Labor proposes to amend the regulations

implementing the Black Lung Benefits Act. Most of the affected

regulations govern the processing and adjudication of individual claims

filed by former coal miners and their surviving dependents, including

the medical criteria used to adjudicate the entitlement of those who

file claims and the criteria used to determine which of the miner's

former employers will be liable for the payment of benefits. In

addition, the Department proposes to eliminate outdated regulations

setting forth criteria for approving state workers' compensation

programs; to discontinue the annual publication, in the Code of Federal

Regulations, of the interim criteria governing claims filed prior to

April 1, 1980; and to revise the criteria governing the responsibility

of coal mine operators to secure the payment of benefits to their

employees.

DATES: Comments must be submitted on or before March 24, 1997.

ADDRESSES: All comments concerning these proposed regulations should be

addressed to James L. DeMarce, Director, Division of Coal Mine Workers'

Compensation, Room C-3520, Frances Perkins Building, 200 Constitution

Ave., N.W., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 219-6692.

SUPPLEMENTARY INFORMATION: The Department last amended the regulations

implementing the Black Lung Benefits Act, 30 U.S.C. 901 et seq., in

1983, more than thirteen years ago. Since then, litigation before the

various U.S. courts of appeals and the Benefits Review Board has

resulted in the clarification of many substantive areas. Moreover, the

Office of Workers' Compensation Programs' experience in administering

the program during this period has resulted in a variety of suggestions

for change with the goal of helping to improve services, streamline the

adjudication process and simplify the regulations' language. Thus, the

Department proposes numerous changes in order to streamline, update and

clarify these program regulations.

Summary of Noteworthy Proposed Changes

Evidentiary Development

The proposed regulations contain a limitation on the amount of

documentary medical evidence parties may submit. The designated

responsible coal mine operator or the Director, whichever party is

liable, and the claimant are limited in their affirmative presentations

to two complete pulmonary evaluations or consultative reports a piece.

Documentary rebuttal evidence is limited to one interpretive opinion

with respect to each part of the pulmonary evaluation submitted by a

party's opponent. See proposed Sec. 725.414.

The Department proposes these changes in order to ensure that

eligibility determinations are based on the best quality evidence

submitted rather than on the quantity of evidence submitted by each

side. Currently, in establishing their eligibility to benefits,

claimants must confront the vastly superior economic resources of their

adversaries: coal mine operators and their insurance carriers. Often,

these parties generate medical evidence in such volume that it

overwhelms the evidence supporting entitlement that claimants can

procure. The proposed changes limiting evidentiary development attempt

to make more equitable the adjudication of black lung claims and reduce

the costs associated with these cases.

The proposed regulation also fundamentally restructures the claims

adjudication process by focusing evidentiary development at the

district director level. The regulation requires all parties to develop

their documentary medical evidence and submit it to the district

director for consideration. Once a claim is referred for a hearing

before the Office of Administrative Law Judges, additional documentary

medical evidence will be admitted into the record only on a showing of

extraordinary circumstances or if the claimant has not been provided

with an adequate complete pulmonary evaluation by doctors of the

Department's choosing. The administrative law judge who conducts the

hearing may permit the parties to elicit testimony only from a limited

group of witnesses, including any physician whose report was submitted

to the district director. The judge will base his decision on a de novo

review of the evidentiary record developed by the district director and

the hearing testimony. See proposed Secs. 725.414, 725.456 and 725.457.

This proposed procedure departs from current practice by excluding

the admission of most additional documentary evidence while a claim is

pending before an administrative law judge. Parties presently often

reserve the active development of medical evidence until a claim is

referred for hearing. Permitting additional evidentiary development

before the administrative law judge was logical when significant delays

occurred between the district director's decision and the hearing

before the administrative law judge. Such delays no longer occur in a

statistically significant percentage of claims. Consequently, the

practical need for permitting evidentiary development at the hearing

stage has disappeared.

The Department believes that these proposed procedural changes

requiring evidentiary development before the district director will

encourage prompt and complete evidentiary development at the earliest

stages and will therefore allow the Department to conduct a thorough

and meaningful initial adjudication of each claim. The Department

believes that the fair, efficient and expeditious adjudication of

claims is a desirable objective which can be promoted by limiting the

amount of medical evidence developed and encouraging all parties to

participate actively at the earliest stages of the process.

Identification of Responsible Operators

The proposed regulations provide that a district director may name

one or more ``potentially liable operators'' from among a miner's

former employers. The potentially liable operator that most recently

employed the claimant will generally be the responsible operator liable

for the payment of benefits. The proposed regulations afford the

district director considerable flexibility, however, in notifying

potentially liable operators; they may be notified seriatim after the

district director evaluates the response from the miner's most recent

employer or does not receive any response. If a potentially liable

operator contests its identification, it must submit documentary

evidence supporting its position to the district director. In cases

involving difficult responsible operator identification issues, the

district director may retain more than one potentially liable operator

as a party to the case. See proposed Secs. 725.407 and 725.408.

The district director will choose a responsible operator from among

the

[[Page 3339]]

identified potentially liable operators and will notify the parties of

this determination in his initial findings. The designated responsible

operator must respond to the notice of initial findings within 30 days

and must specifically indicate whether it agrees or disagrees with the

initial finding of liability. See proposed Secs. 725.410, 725.412. In

the event further adjudication of the claim is required, the district

director may retain as parties to the case other potentially liable

operators in order to preserve the Department's right to compel the

payment of benefits by the responsible operator ultimately determined

to be liable for the claimant's benefits. See proposed Sec. 725.413.

To ensure that the claimant is not overwhelmed by operator-

developed medical evidence, however, the proposed regulations limit all

potentially liable operators and the designated responsible operator to

a total of two pulmonary evaluations or consultative reports as an

affirmative case. Because all of the named operators have an identical

interest with respect to the claimant's eligibility, the Department

does not believe that unfairness will result from limiting the total

evidence submitted. The designated responsible operator will have the

responsibility and, indeed, the obligation, to develop the operators'

case in chief on behalf of all named operators. Any named operator,

other than the responsible operator, must request the district

director's permission in order to schedule the claimant for a medical

examination. This permission may be granted only upon a showing that

the responsible operator has not undertaken a full development of the

evidence. In no event will the claimant be required to undergo more

than two pulmonary examinations by the parties opposing his

eligibility. See proposed Sec. 725.414.

The proposed responsible operator regulations also assign both the

Office of Workers' Compensation Programs (OWCP) and the designated

responsible operator burdens of proof. Under proposed Sec. 725.495, the

Department bears the burden of proof to identify the responsible

operator initially found liable for the payment of benefits. In order

to carry this burden of proof, OWCP must establish that the responsible

operator is a ``potentially liable operator,'' i.e., that it was an

operator after June 30, 1973, that it employed the miner for at least

one year, that at least one day of that employment occurred after

December 31, 1969, and that the miner was exposed to coal mine dust

while working for the operator. In addition, in any case in which the

designated responsible operator is not the miner's most recent

employer, the record must include a statement that OWCP has

investigated its files and has determined that it has no record that a

more recent employer insured its liability under the Act, or was

authorized to self-insure such liability.

Once OWCP has met its burden of proof, the burden shifts to the

designated responsible operator. The operator may avoid liability for

the claim only if it establishes: (1) that it is not financially

capable of assuming liability for the claim; or (2) that one of the

miner's more recent employers meets all of the criteria for a

potentially liable operator. The burden imposed on the designated

responsible operator under this second alternative includes a showing

that the more recent employer is financially capable of assuming

liability. See proposed Sec. 725.495.

If the designated responsible operator carries its burden of proof

and establishes that it was incorrectly identified and OWCP has failed

to name and retain as a party the coal mine operator ultimately found

liable as the responsible operator, the Trust Fund will bear liability

for the claim. In such a case, OWCP will make no attempt to name a new

responsible operator and force the claimant once again to establish his

entitlement to benefits. See proposed Sec. 725.407(d) allowing the

district director to identify and notify a responsible operator only

before a case is referred to the Office of Administrative Law Judges.

Civil Money Penalty

The proposed regulations contain new provisions implementing the

Act's civil money penalty provision, which directs the assessment of a

penalty of up to $1,000 per day against operators that fail to secure

the payment of benefits, either by purchasing commercial insurance or

qualifying as a self-insurer. 30 U.S.C. 933(d). The proposed

regulations establish criteria and streamlined procedures to be used in

assessing penalties. They provide notice of the Department's intention

to minimize the financial burden that uninsured operators currently

place on those operators in compliance with the Act's security

requirements and on the Black Lung Disability Trust Fund. See proposed

20 CFR part 726, subpart D, Secs. 726.300-726.320.

The proposed regulations provide a graduated series of possible

penalties based on a set of criteria, including the operator's size,

its prior notice of the Act's insurance requirements and the operator's

action, or inaction, following this notification. See proposed

Sec. 726.302. After receipt of a notice of penalty assessment and entry

of a timely notice of contest, an operator may request a hearing before

the Office of Administrative Law Judges. See proposed Sec. 726.307. The

ensuing decision will address whether the operator has violated the

Act's insurance requirements, whether the individuals identified by the

Director as potentially severally liable for the penalty were in fact

the president, treasurer or secretary of the corporation during the

relevant time period and, finally, the appropriateness of the penalty

assessment. See proposed Sec. 726.313. The Director or any party

aggrieved by a decision of the administrative law judge may petition

the Secretary for review, which will be conducted using a substantial

evidence standard. See proposed Secs. 726.314, 726.318.

The proposed regulations also impose an additional requirement on

self-insured operators. They require that such operators continue to

secure the payment of benefits to their employees even after the

operator has ceased mining coal. This additional requirement is

necessary given the limited amount of security typically required of

operators who self-insure and the prolonged time periods after coal

mine employment has ceased during which miners may file claims for

benefits. See proposed Sec. 726.114(c).

Treating Physicians' Opinions

The Department proposes a new paragraph (d) of 20 CFR 718.104, the

regulation governing reports of physical examinations. The proposed

paragraph would give certain treating physicians' opinions controlling

weight in determining whether the miner is totally disabled or died due

to pneumoconiosis. The proposed language would mandate that, when

weighing a treating physician's opinion, the factfinder must consider

the nature and duration of the relationship between the miner and the

physician, the frequency and extent of the physician's treatment, and

the credibility of the doctor's opinion in light of his reasoning and

documentation. The factfinder must also consider the opinion's

consistency with the other relevant evidence, and the doctor's training

and specialization.

Waiver of Overpayments

The Department proposes amending Sec. 725.547(a), which addresses

the applicability of overpayment provisions to coal mine operators and

their

[[Page 3340]]

insurance carriers. The proposed regulation would make available to all

overpaid claimants the provisions governing waiver of recovery of an

overpayment incorporated from the Social Security Act, 30 U.S.C.

923(b), 940, incorporating 42 U.S.C. 404(b).

Currently, only a claimant who receives an overpayment from the

Black Lung Disability Trust Fund may be relieved of his repayment

obligation. Such a claimant is entitled to waiver of recovery of the

overpayment if he can demonstrate that permitting recovery would

``defeat the purpose of the Act'' or ``be against equity and good

conscience.'' Only those individuals who were not ``at fault'' in

creating the overpayment are eligible for waiver. The Department has

concluded that these waiver provisions should be available to all

claimants, including those who are overpaid by operators and insurance

carriers. Thus, under the proposed language, any individual who has

received an overpayment will have the opportunity to establish that the

two-part test for waiver is met.

Establishing Total Disability and Total Disability Due to

Pneumoconiosis

Proposed Sec. 718.204 amends the definition of ``total disability''

and makes explicit the Department's position with regard to

establishing total disability due to pneumoconiosis. Both of these

changes reflect the decisions of numerous courts of appeals. In order

to be found ``totally disabled,'' a miner must have a respiratory or

pulmonary impairment which, standing alone, prevents him from

performing his usual coal mine employment. See proposed

Sec. 718.204(b). In order to establish entitlement, the miner must also

demonstrate that his total disability is due to pneumoconiosis. This

showing is made by establishing that pneumoconiosis is a substantially

contributing cause of the totally disabling respiratory or pulmonary

impairment. See proposed Sec. 718.204(c). Finally, proposed

Sec. 718.204(a) also makes clear that a concurrent disability due to a

nonrespiratory or nonpulmonary condition will not disqualify the miner

from receipt of black lung benefits if the miner can also demonstrate

total disability due to pneumoconiosis.

Additional or Subsequent Claims

The proposed regulations clarify claimants' right to file

``additional'' or ``subsequent'' claims, those claims filed more than

one year after denial of a previous claim. See proposed

Sec. 725.309(d). Under this proposal, the claimant may escape automatic

denial of an additional claim on the grounds of the prior denial, by

demonstrating that a change in one of the applicable conditions of

entitlement has occurred since the date upon which the order denying

the prior claim became final. The changed regulatory language codifies

the holdings of several courts of appeals.

The applicable conditions of entitlement are limited to those

conditions upon which the prior denial was based. If the applicable

conditions of entitlement relate to the miner's physical condition and

the new evidence submitted with the additional claim establishes a

change in at least one applicable condition, the proposed regulation

contains a rebuttable presumption that the miner's physical condition

has changed. Once a change in an applicable condition of entitlement is

established, none of the findings made in connection with the prior

claim, except those based on a party's failure to contest an issue,

shall be binding in the adjudication of the subsequent claim, and the

claim must be adjudicated on the merits.

Medical Benefits

Proposed Sec. 725.701(e) provides that in any claim for

compensation for treatment of a pulmonary disorder filed by a miner

entitled to medical benefits, there shall be a rebuttable presumption

that the treatment was for a disorder caused or aggravated by

pneumoconiosis. This amended regulatory language codifies a decision of

the United States Court of Appeals for the Fourth Circuit. The

presumption may be rebutted only by evidence that the specific

pulmonary disorder being treated is neither related to, nor aggravated

by, the miner's pneumoconiosis. The proposed regulation also provides

that evidence that the miner does not have pneumoconiosis or is not

totally disabled by pneumoconiosis arising out of coal mine employment,

i.e., evidence which challenges the miner's underlying entitlement to

medical benefits, is insufficient to demonstrate that the specific

treatment for which compensation is claimed is not compensable. See

proposed Sec. 725.701(f).

Explanation of Proposed Changes

The Department proposes to revise the regulations implementing the

Black Lung Benefits Act, set forth at Chapter VI of Title 20 of the

Code of Federal Regulations. In order to make all the proposed changes

more easily understandable, the Department proposes to re-promulgate

Parts 718, 722, 725, and 726 in their entirety. This action is intended

to aid the readers of the Federal Register, and should not be construed

as inviting comments on any regulation which has not been substantively

revised. The regulations within these parts may be divided into three

categories: (1) those which will be substantively revised; (2) those to

which the Department is proposing only technical changes; and (3) those

which will not be revised at all.

Substantive revisions

The following regulations are being substantively revised:

Sec. 718.3, Sec. 718.101, Sec. 718.102, Sec. 718.103, Sec. 718.104,

Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201, Sec. 718.202,

Sec. 718.204, Sec. 718.205, Sec. 718.301, Sec. 718.307, Sec. 718.401,

Sec. 718.402, Sec. 718.403, Sec. 718.404, Appendix B to part 718,

Appendix C to Part 718, part 722 (entire), Sec. 725.1, Sec. 725.2,

Sec. 725.4, Sec. 725.101, Sec. 725.103, Sec. 725.202, Sec. 725.203,

Sec. 725.204, Sec. 725.209, Sec. 725.212, Sec. 725.213, Sec. 725.214,

Sec. 725.215, Sec. 725.219, Sec. 725.221, Sec. 725.222, Sec. 725.223,

Sec. 725.306, Sec. 725.309, Sec. 725.310, Sec. 725.311, Sec. 725.362,

Sec. 725.367, Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408,

Sec. 725.409, Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413,

Sec. 725.414, Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418,

Sec. 725.421, Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456,

Sec. 725.457, Sec. 725.458, Sec. 725.459, Sec. 725.478, Sec. 725.479,

Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494,

Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.522, Sec. 725.530,

Sec. 725.537, Sec. 725.547, Sec. 725.606, Sec. 725.608, Sec. 725.609,

Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2,

Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106,

Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.300,

Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304, Sec. 726.305,

Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309, Sec. 726.310,

Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314, Sec. 726.315,

Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319, Sec. 726.320,

and part 727 (entire). The substantive revisions to these regulations

are explained in further detail below.

Technical revisions

In addition, a number of regulations have been revised to make

certain technical changes. The proposed regulations substitute the term

``district director'' for the term ``deputy commissioner'' wherever it

appears. This change is explained in detail at 55 FR 28604-28607, July

12, 1990. The proposed regulations also add a cross-reference to

Sec. 725.4(d) to each regulation

[[Page 3341]]

which currently contains a cross-reference to part 727. Section

725.4(d) explains that although the Department is discontinuing

publication of the interim criteria set forth in 20 CFR Part 727 in the

Code of Federal Regulations, part 727 remains applicable to all claims

filed prior to April 1, 1980. In addition, certain proposed regulations

have been revised and/or renumbered in order to conform with the

current requirements of the Office of the Federal Register. The text of

Sec. 725.453A has been incorporated into Sec. 725.454 as paragraphs

(a), (b) and (c) and Sec. 725.454 has been retitled. The text of

Sec. 725.459A has been incorporated into Sec. 725.455 as paragraph (d).

Section 725.503A has been renumbered as Sec. 725.504, and

Secs. 725.504-.506 have been renumbered Secs. 725.505-.507. Section

725.701A has been renumbered Sec. 725.702, and Secs. 725.702-.707 have

been renumbered Secs. 725.703-.708. Finally, the proposed regulations

correct minor typographical errors, revise cross references to subparts

of part 725 which have been redesignated and regulations that have been

renumbered, and conform the regulations to the current practices of the

Office of the Federal Register. The Department has included technical

changes to the following regulations: Sec. 718.1, Sec. 718.2,

Sec. 718.4, Sec. 718.303, Sec. 725.102, Sec. 725.216, Sec. 725.217,

Sec. 725.301, Sec. 725.302, Sec. 725.350, Sec. 725.351, Sec. 725.360,

Sec. 725.366, Sec. 725.401, Sec. 725.402, Sec. 725.403, Sec. 725.404,

Sec. 725.419, Sec. 725.420, Sec. 725.450, Sec. 725.451, Sec. 725.453A,

Sec. 725.455, Sec. 725.459A, Sec. 725.462, Sec. 725.463, Sec. 725.465,

Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501, Sec. 725.503A,

Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507, Sec. 725.510,

Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.532, Sec. 725.533,

Sec. 725.543, Sec. 725.603, Sec. 725.604, Sec. 725.605, Sec. 725.607,

Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704, Sec. 725.705,

Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.4, and Sec. 726.203.

Pursuant to the authority set forth in 5 U.S.C. 552(b)(3)(A), which

allows federal agencies to alter ``rules of agency organization,

procedure, or practice'' without notice and comment, the Department is

not accepting comments on any of these regulations.

Unchanged Regulations

Certain regulations are merely being repromulgated without

alteration and are also not open for public comment. To the extent

appropriate, the Department's previous explanations of these

regulations, set forth in the Federal Register, see 43 FR 36772-36831,

Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain applicable. The

same is true of those regulations to which the Department is making

only technical changes. The following regulations are being

repromulgated for the convenience of readers: Sec. 718.203,

Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306,

Appendix A to Part 718, Sec. 725.3, Sec. 725.201, Sec. 725.205,

Sec. 725.206, Sec. 725.207, Sec. 725.208, Sec. 725.210, Sec. 725.211,

Sec. 725.218, Sec. 725.220, Sec. 725.224, Sec. 725.225, Sec. 725.226,

Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231,

Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305,

Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363,

Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460,

Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477,

Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511,

Sec. 725.512, Sec. 725.515, Sec. 725.520, Sec. 725.531, Sec. 725.534,

Sec. 725.535, Sec. 725.536, Sec. 725.538, Sec. 725.539, Sec. 725.540,

Sec. 725.541, Sec. 725.542, Sec. 725.544, Sec. 725.545, Sec. 725.546,

Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.1, Sec. 726.3,

Sec. 726.5, Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.103,

Sec. 726.107, Sec. 726.108, Sec. 726.112, Sec. 726.113, Sec. 726.115,

Sec. 726.201, Sec. 726.202, Sec. 726.204, Sec. 726.205, Sec. 726.206,

Sec. 726.207, Sec. 726.208, Sec. 726.209, Sec. 726.210, Sec. 726.211,

Sec. 726.212, and Sec. 726.213.

For purposes of this preamble, ``he'', ``his'', and ``him'' shall

include ``she'', ``hers'', and ``her''.

20 CFR Part 718--Standards for Determining Coal Miners' Total

Disability or Death Due to Pneumoconiosis

Subpart A--General

20 CFR 718.3. We are specifically seeking comment on Sec. 718.3.

Paragraph (c) of Sec. 718.3 was used to support the ``true doubt''

rule, which provides that an evidentiary issue will be resolved in

favor of the claimant if the probative evidence for and against the

claimant is in equipoise. The United States Supreme Court invalidated

the ``true doubt'' rule in Director, OWCP v. Greenwich Collieries, 114

S.Ct. 2251 (1994). The Court concluded that paragraph (c) failed to

define the ``true doubt'' rule effectively. It then held that the rule,

as applied by the Benefits Review Board, contravenes the Administrative

Procedure Act, 5 U.S.C. 551 et seq., by relieving the claimant of the

APA-imposed burden of proving his claim by a preponderance of the

evidence. Paragraph (c) also appeared to conflict with Sec. 718.403,

which requires the party alleging any fact to bear the burden of

proving that fact. Section 718.403 more accurately reflects the

allocation of burdens of proof under the APA, and paragraph (c) of

Sec. 718.3 should therefore be deleted.

Subpart B--Criteria for the Development of Medical Evidence

20 CFR 718.101. The current text of Sec. 718.101 should be

redesignated as paragraph (a), without further amendment, and a new

paragraph (b) should be added. The Department has consistently

maintained the position that the ``quality'' standards addressing the

administration of certain clinical tests and examinations apply to all

evidence developed by any party in connection with a claim for black

lung benefits filed after March 31, 1980. The Benefits Review Board has

rejected this position, and held that the standards govern only the

evidence developed by the Department; for all other parties, the

standards are advisory. The Board has also held that evidence cannot be

rejected by the adjudicator solely for noncompliance with the relevant

standard. See generally Gorzalka v. Big Horn Coal Co., 16 Black Lung

Rep. (MB) 1-48, 1-51 (1990) and authorities cited. Only the Third

Circuit has addressed this issue, and has agreed with the Department's

position. Director, OWCP v. Mangifest, 826 F.2d 1318 (3d Cir. 1987).

Although the existing regulations provide ample authority for making

the quality standards generally applicable (see paragraphs 718.3(a),

725.406(b), 725.456(c)), Sec. 718.101 should be amended to leave no

doubt on this point.

The Department has also consistently maintained that the part 718

quality standards apply to part 727 claims if the test was conducted

after March 31, 1980. See 20 CFR 727.203(c). The Sixth Circuit has

accepted this interpretation of the regulations. Wiley v. Consolidation

Coal Co., 915 F.2d 1076, 1080 (6th Cir. 1990). Both the Board and the

Seventh Circuit, however, have rejected the Department's position.

Coleman v. Ramey Coal Co., 18 Black Lung Rep. (MB) 1-9, 1-15 (1993);

Peabody Coal Co. v. Director, OWCP [Brinkley], 972 F.2d 880, 882 (7th

Cir. 1992). Accordingly, the proposed paragraph (b) includes a

reference to part 727 claims to clarify the applicability of the

quality standards to such claims.

The individual quality standards address the compliance requirement

in various ways. See 20 CFR 718.102 (x-ray) and 718.103 (pulmonary

function study): substantial compliance; 718.104 (medical report) and

718.105 (blood gas study): no reference; 718.106 (autopsy/biopsy):

compliance. In order to clarify

[[Page 3342]]

the criterion for compliance and place it in logical sequence in the

regulations, language should be added to Sec. 718.101 requiring

``substantial compliance'' with all the standards. This regulation

applies generally to all the quality standards, making it the rational

provision to contain the compliance requirement. A single reference in

one regulation also eliminates repetitive language from three other

regulations while making explicit the applicability of the standard to

the remaining two regulations. Finally, the phrase ``[e]xcept as

otherwise provided'' recognizes the exemption from compliance for a

deceased miner whose only X-ray is nonconforming, and autopsies or

biopsies of miners who died before March 31, 1980.

The purpose of the quality standards is to ensure the utilization

of reliable evidence in adjudicating claims. The effect of

noncompliance in terms of proving or refuting entitlement should

therefore be obvious. In order to emphasize the insufficiency of such

evidence as proof, however, proposed paragraph (b) contains an

affirmative prohibition.

20 CFR 718.102. Paragraph (e) should be reorganized in view of the

proposed paragraph 718.101(b) general compliance standard. As noted

with respect to proposed paragraph 718.101(b), codifying the

``substantial compliance'' standard in that regulation of general

applicability eliminates the need to reiterate it in each specific

quality standard. The proposed paragraph (e) also makes Sec. 718.102

consistent with Sec. 718.103 (pulmonary function studies) in presuming

compliance with the technical criteria in the Appendix. Finally, the

parenthetical citation to ``Sec. 718.208'' in the current regulation is

a typographical error; no such provision exists. Reference to

``Sec. 718.202'' is therefore substituted as a correction inasmuch as

that regulation contains definitions of Board-eligible and -certified

radiologists and ``B'' readers. See 20 CFR 718.202(a)(1)(ii) (C)-(E).

20 CFR 718.103. The last two sentences of paragraph (a) should be

removed, and the content of those sentences added to paragraph (c) to

take into account the changes to Sec. 718.101. The explanation provided

for eliminating the ``substantial compliance'' language in Sec. 718.102

applies with equal force to Sec. 718.103. Furthermore, the proposed

paragraphs 718.102(e) and 718.103(c) operate in a functionally

equivalent manner: both regulations (i) presume compliance with

technical requirements contained in the appendices; (ii) permit

rebuttal of that presumption with ``contrary'' evidence; and (iii)

recognize an exception to compliance for claims involving deceased

miners and limited evidence. Given the identity of purpose in the

current regulations, proposed paragraph 718.103(c) mirrors proposed

paragraph 718.102(c) to ensure similar interpretation and operation.

20 CFR 718.104. Section 718.104 should be amended to make clear

that the enumerated data represents the minimum information and testing

upon which a physician's report can be based if obtained in connection

with a claim for benefits. This regulation also is the logical

provision to implement guidelines for the weighing of medical reports

from a miner's treating physician. Proposed paragraph (d) describes the

relevant factors the adjudicator must consider in determining whether

to accord ``controlling weight'' to the treating physician's opinion.

The primary objective in changing the format of Sec. 718.104 is to

clarify the requirement that any physician's report developed in

connection with a claim must be based on certain enumerated information

and data in order to establish or refute entitlement. Furthermore, the

proposed regulation makes clear the necessity for utilizing at least an

x-ray and a pulmonary function test which satisfy the quality standards

as a clinical basis for a physician's pulmonary diagnosis. See

Director, OWCP v. Siwiec, 894 F.2d 635, 639 (3d Cir. 1990) (holding

that physician's report which was based on nonconforming pulmonary

function study was insufficient to prove miner was disabled). Finally,

proposed paragraph (c) parallels similar provisions in Secs. 718.102,

718.103 and 718.106, which permit the utilization of nonconforming

evidence to establish entitlement if the miner is deceased and

complying evidence is unavailable. This provision adds the requirement

that the physician must be unavailable; otherwise, in at least some

instances, the physician could be requested to address, and cure, the

deficiencies in his report.

With respect to paragraph (d), judicial precedent has long

recognized that special weight may be given the opinion of a miner's

treating physician, based on the doctor's opportunity to observe the

miner over a period of time. See, e.g., Thorn v. Itmann Coal Co., 3

F.3d 713, 717 n. 3 (4th Cir. 1993); Tussey v. Island Creek Coal Co.,

982 F.2d 1036, 1042 (6th Cir. 1993); McClendon v. Drummond Coal Co.,

861 F.2d 1512, 1514 (11th Cir. 1988); Micheli v. Director, OWCP, 846

F.2d 632, 636 (10th Cir. 1988); Schaaf v. Matthews, 574 F.2d 157, 160

(3d Cir. 1978). Such deference, however, is not an unqualified

``blanket rule'' which must be applied mechanically; the adjudicator

must still determine whether the physician's opinion is reasoned,

documented and credible before accepting it over contrary opinions.

Grizzle v. Pickands Mather and Co., 994 F.2d 1093, 1097 (4th Cir.

1993); Peabody Coal Co. v. Helms, 901 F.2d 571, 573 (7th Cir. 1990);

Halsey v. Richardson, 441 F.2d 1230, 1236 (6th Cir. 1971); Tedesco v.

Director, OWCP, 18 Black Lung Rep. (MB) 1-104, 1-105 (1994). The

proposed changes to Sec. 718.104 codify the principles embodied in both

lines of cases and draw on a similar regulation adopted by the Social

Security Administration, 20 CFR 404.1527(d)(2).

A physician's status as the miner's treating physician can provide

a legitimate basis for preferring that opinion over the reports of

doctors who have examined the miner only once or reviewed only medical

records and test data. Such status alone, however, is no substitute for

a critical analysis of both the nature and extent of the patient-doctor

relationship and the credibility of the opinion submitted by the

physician. The proposed regulation enumerates the four basic factors in

evaluating the physician's relationship with the miner: (i) nature of

relationship (pulmonary versus non-pulmonary treatment); (ii) duration

of relationship (length of time treating the miner); (iii) frequency of

treatment (number of visits over time); and (iv) extent of treatment

(types of tests and examinations conducted). Each factor will vary from

claim to claim. Consequently, no ``bright-line'' rule can be utilized

which defines when a treating physician's opinion should be given

controlling weight.

Paragraph (d)(5) underscores the requirement that, status aside,

the treating physician must provide a reasoned and documented opinion

before his conclusions can be accorded controlling weight. Status

cannot cure deficiencies in testing and explanation which would be

fatal flaws in reports from a non-treating physician. Accordingly, this

provision requires the adjudicator to consider the treating physician's

opinion on its own merits and in the context of the remainder of the

record to determine whether deference to the treating physician is

appropriate.

20 CFR 718.105. Section 718.105 should be amended to address

studies administered during the miner's terminal illness. During such

an illness, arterial blood gas studies may produce qualifying results

for reasons unrelated

[[Page 3343]]

to a chronic respiratory or pulmonary disease. In order to avoid

reliance on ``deathbed'' qualifying data, proposed paragraph (d) should

be added. This provision simply ensures the probative value of such

tests as evidence of a chronic respiratory or pulmonary impairment by

requiring the claimant to submit a physician's report attesting to the

link between the qualifying scores and the miner's chronic pulmonary

condition.

20 CFR 718.106. Paragraph (b) should be rewritten to account for

the changes to Sec. 718.101. Paragraph (b) is revised to utilize

language similar to parallel provisions in the other quality standards

provisions, which account for the general ``substantial compliance''

standard contained in the amended Sec. 718.101. The word

``noncomplying'' is substituted for ``nonconforming'' to ensure

consistent terminology in similar circumstances.

20 CFR 718.107. Section 718.107 should be amended to make explicit

the burden of proof a party bears to demonstrate that the proffered

test or procedure is ``medically acceptable.'' Section 718.107 enables

any party to submit medical evidence based on tests or procedures not

covered by the other provisions of subpart B. This regulation permits

flexibility in accommodating the use of developing or future medical

diagnostic techniques beyond the traditional tests specifically covered

by the quality standards. Proposed paragraph (b) emphasizes the

requirement that the party proffering the evidence must establish both

that the evidence is based on medically acceptable tests or procedures

and that the evidence is relevant to determining the medical issues in

a benefits claim.

Subpart C--Determining Entitlement to Benefits

20 CFR 718.201. We are specifically seeking comment on

Sec. 718.201. The regulatory definition of ``pneumoconiosis'' should be

revised to clarify the Department's position that this disease is a

progressive condition which, in some instances, may become detectable

only after cessation of coal mine employment. The definition should

also reflect the inclusive nature of the disease, such that no category

of chronic lung disease can be categorically excluded from the ambit of

the definition. Two important issues have emerged in recent litigation

involving the definition of ``pneumoconiosis'': (i) whether the disease

includes obstructive disorders; and (ii) whether pneumoconiosis is a

latent disease which can progress after the cessation of dust exposure

to the point of clinical manifestation. Heretofore, the Department has

consistently taken the position in litigation and rulemaking that no

specific lung disease could be categorically excluded from the

definition of ``pneumoconiosis''; thus, any disease which could be

medically linked to occupational dust exposure in a particular case

could be pneumoconiosis. See 43 FR 36825, Aug. 18, 1978, Sec. 727.202

Discussion and changes (a); 45 FR 13685, Feb. 29, 1980, Sec. 718.201

Discussion and changes (a); Barber v. Director, OWCP, 43 F.3d 899 (4th

Cir. 1995). The Department has also argued that pneumoconiosis can

progress absent exacerbating dust exposure, and may require many years

to reach the point of detection. The Department has been largely

successful in litigation involving these issues. The prevalence of the

issues and the availability of supportive medical research, however,

warrant making explicit the current regulatory definition to codify

both positions.

Scope of Definition

The statutory definition of ``pneumoconiosis,'' as implemented by

Sec. 718.201, encompasses any chronic respiratory or pulmonary disease

or impairment caused by the inhalation of coal mine dust. See 30 U.S.C.

902(b). Thus, any such disease or impairment which can be linked to

occupational dust exposure by credible medical evidence may be

considered ``pneumoconiosis'' for purposes of that particular claim. As

such, the Act recognizes a far broader concept of the disease than does

the medical community; the latter confines ``coal workers'

pneumoconiosis'' to the pathologic reaction of lung tissue to dust

inhalation, resulting in characteristic patterns or markings on chest

X-rays. See, e.g., ``The Merck Manual of Diagnosis and Therapy'' 681

(15th ed. 1987); ``National Institute for Occupational Safety and

Health, Occupational Exposure to Respirable Coal Mine Dust'' Sec. 4.1.2

(1995); Freeman United Coal Mine Co. v. Director, OWCP, 957 F.2d 302,

303 (7th Cir. 1992). Amending Sec. 718.201 to acknowledge the

distinction between the medical and legal definitions emphasizes the

inclusive nature of ``pneumoconiosis'' for purposes of the black lung

benefits program.

In the same vein, adding the phrase ``any chronic restrictive or

obstructive pulmonary disease'' will foreclose litigation attempting to

narrow the definition on a claim-by-claim basis with medical opinions

which exclude obstructive lung disorders from occupationally-related

pathologies. The NIOSH study on occupational dust exposure contains

ample medical authority suggesting at least some relationship between

coal mine dust exposure and the development of chronic obstructive lung

disease. See ``National Institute for Occupational Safety and Health,

Occupational Exposure to Respirable Coal Mine Dust'' Sec. 4.2.2 et seq.

Thus, leaving the issue to resolution in litigation risks inconsistent

results; indeed, one court has invited such inconsistencies:

The Act and its regulations define `pneumoconiosis' broadly and

do not establish that dust exposure from coal mine work can

necessarily cause obstructive pulmonary disease or impairment. * * *

Rather, the facts and medical opinions in each specific case answer

this question.

Blakley v. Amax Coal Co., 54 F.3d 1313, 1321 (7th Cir. 1995); compare

Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995)

(stating that ``[c]hronic obstructive lung disease thus is encompassed

within the definition of pneumoconiosis for purposes of entitlement to

Black Lung benefits[,]'' and rejecting medical opinions based on

``erroneous assumptions'' to the contrary); Eagle v. Armco, Inc., 943

F.2d 509, 511 n. 2 (4th Cir. 1991) (describing as ``bizarre'' a medical

opinion which rejected occupational dust exposure as possible cause of

chronic obstructive lung disease).

Progressive Nature

The Department has long maintained the view that simple

pneumoconiosis is an irreversible disease, which may cause progressive

deterioration of the lung even after the miner has ceased inhaling coal

mine dust. Many court and Board decisions reflect acceptance of this

characterization of the disease's pathology. See, e.g., Mullins Coal

Co. v. Director, OWCP, 484 U.S. 135, 151 (1987); LaBelle Processing Co.

v. Swarrow, 72 F.3d 308, 314-315 (3d Cir. 1995); Adkins v. Director,

OWCP, 958 F.2d 49, 51 (4th Cir. 1992); Lukman v. Director, OWCP, 896

F.2d 1248, 1253 (10th Cir. 1990); Orange v. Island Creek Coal Co., 786

F.2d 724, 727 (6th Cir. 1986); Consolidation Coal Co. v. Chubb, 741

F.2d 968, 973 (7th Cir. 1984); Elkins v. Beth-Elkhorn Coal Co., 2 Black

Lung Rep. (MB) 1-683, 1-686 (1979). But see Zeigler Coal Co. v. Lemon,

23 F.3d 1235, 1238 (7th Cir. 1994) (chastising an administrative law

judge for assuming that pneumoconiosis is progressive without any

medical evidence in the record to support the assumption). Indeed, the

propensity for progressive deterioration provides the legal

justification for permitting additional or

[[Page 3344]]

subsequent claims, even for miners who do not return to coal mining

after the first claim's denial. See 43 FR 36785, Aug. 18, 1978,

Sec. 725.309 Discussion and changes (a) (``The Department agrees that a

miner whose claim has once been finally denied * * * should be allowed

to file a new claim on the grounds of a progression to total

disability.''). The fact that the miner was unable to prove even the

existence of the disease in his initial claim is no bar to a later

claim since the disease may not have progressed to the point of

clinical manifestation when he filed the application.

Current medical science supports the Department's position that

pneumoconiosis may progress. In P. Francois et al., ``Pneumoconiosis of

Delayed Apparition: Large Scaled Screening in a Population of Retired

Coal Miners of the Northern Coal Fields of France,'' in Seventh

International Pneumoconiosis Conference, Abstracts of Communications

979 (1988), 741 new cases of pneumoconiosis (out of 3070 miners, or

24%) were discovered in miners who did not have pneumoconiosis at

retirement and who had not been exposed to dust for at least 3 years.

Of these 741 new cases, only 10% had large opacities (complicated

pneumoconiosis), 69% had category 1 simple pneumoconiosis, and 21% had

category 2 simple pneumoconiosis. Indeed, the authors specifically

recite one example of a 66 year old ex-miner who had retired 24 years

earlier after 25 years of dust exposure. The x-ray at retirement showed

no evidence of pneumoconiosis, but the one taken 20 years later showed

obvious pneumoconiosis. Thus, the authors write:

The coalworker's pneumoconiosis may appear a long time after the

exposure to nocive [harmful] dust has ceased. This is a well

established fact. What we don't know is the frequency of such forms

of pneumoconiosis of long delayed apparition.

Francois at p. 979.

An earlier study from France provides additional support. In David

V. Bates et al., ``A Longitudinal Study of Pulmonary Function in Coal

Miners in Lorraine, France'', 8 Am. J. Ind. Med. 21 (1985), the authors

observed continued and accelerated rates of decline in lung function

after retirement from mining in both smokers and nonsmokers. The

authors suggest that pneumoconiosis at all stages progresses, based on

``dust loading in the lung, and once this has reached some critical

level, it is not much affected by removal from exposure.'' Bates at p.

29. The study includes several graphs depicting ``radiologic category

at retirement and 10 years later.'' Bates at p. 27. These graphs

demonstrate a decrease in the percentage of miners with normal or 0/1

readings, and an increase in the percentage of miners with simple

pneumoconiosis (category 1/2) as well as complicated pneumoconiosis. By

way of explanation, Dr. Bates identified miners with normal or 0/1

readings as ``o-p;'' miners with 1/2 were ``m, n, A, B,'' and miners

with complicated pneumoconiosis were delineated as ``C.'' Bates at p.

22. An x-ray showing opacity perfusion of 0/1 is considered negative

for pneumoconiosis under the regulations. 20 CFR 718.102(b). Thus, the

data clearly depicts a progression from normal, or negative, x-rays to

positive x-rays, with the initial appearance of simple pneumoconiosis

occurring some 10 years after the miners' last dust exposure.

Other studies and treatises inferentially document, or otherwise

support, the progressivity of simple pneumoconiosis. See, Helen Dimich-

Ward & David V. Bates, ``Reanalysis of a Longitudinal Study of

Pulmonary Function in Coal Miners in Lorraine, France,'' 25 Am. J. Ind.

Med. 613, 621 (1994) (lung function loss and disability may progress

after exposure ceases); Cockcroft et al., ``Prevalence and Relation to

Underground Exposure of Radiological Irregular Opacities in South Wales

Coal Workers with Pneumoconiosis,'' Br. J. Ind. Med. 40: 169, 172

(1983) (increase in irregular opacities without further dust exposure

indicates continued tissue reaction to inhaled dust and progression of

the disease after exposure, although increase in overall profusion of

opacities not found); 4A Roscoe N. Gray, ``Attorneys' Textbook Of

Medicine,'' para. 205.71 (3d ed. 1982) (while only method of preventing

progression of pneumoconiosis is removal from dusty environment, with

some pneumoconioses progression will continue even after exposure

ceases); ``The Merck Manual of Diagnosis and Therapy'' 704 (16th ed.

1992) (explaining that complicated pneumoconiosis may develop and

progress without further dust exposure); David V. Bates, ``Respiratory

Function in Disease'' 303 (3d ed. 1989) (silicosis commonly progresses

after dust exposure ceases). The definition of ``pneumoconiosis''

includes silicosis. 20 CFR 718.202. Moreover, complicated

pneumoconiosis normally develops on a background of category 2 or 3

simple pneumoconiosis. See e.g. ``The Merck Manual of Diagnosis and

Therapy'' at p. 704. Thus, the development from simple to complicated

pneumoconiosis without further dust exposure reveals progression of the

disease.

In view of the ample scientific support for the Department's

interpretation of the scope and nature of the definition of

``pneumoconiosis,'' Sec. 718.201 should reflect that interpretation

with more specificity.

20 CFR 718.202. Paragraph (a)(2) should be amended to make clear

that a finding of anthracotic pigment in a biopsy procedure, without

more, is insufficient to establish the presence of pneumoconiosis. The

current regulation imposes this limitation only with respect to an

autopsy, but there is no reason to treat these two types of evidence

differently.

20 CFR 718.204. The proposed changes to Sec. 718.204 codify several

of the positions which the Department has taken in litigation to

clarify the meaning of ``total disability.'' The regulation should

explicitly reflect the Department's view that ``total disability''

means a totally disabling respiratory or pulmonary impairment. The

proposed changes also provide guidance for establishing the degree to

which pneumoconiosis must contribute to the miner's disabling

impairment; to date, the quantification of disability contribution has

been articulated solely through appellate decisions. In addition, the

proposed changes make clear that a miner who is totally disabled by a

compensable respiratory condition is entitled to black lung benefits

regardless of any concurrent disability by non-respiratory impairments

or diseases. Finally, the Department proposes to revise the regulation

to separate disability and disability causation criteria, unify the

various provisions dealing with lay evidence, and delete paragraph (f),

which is unnecessary in view of corresponding material in 20 CFR

725.504.

Two significant changes have been made to the concept of ``total

disability.'' First, paragraph (a) makes clear that disabling

nonrespiratory conditions are irrelevant to determining whether a miner

is, or was, totally disabled by pneumoconiosis. This change makes clear

the Department's disagreement with the holding in Peabody Coal Co. v.

Vigna, 22 F.3d 1388 (7th Cir. 1994). In that case, the miner suffered a

disabling stroke in 1971, and thereafter applied for benefits under

part 727. He invoked the interim presumption with qualifying pulmonary

function evidence from 1979. The Seventh Circuit held, however, that

the operator rebutted the presumption because the miner's disability

was caused by the stroke, which was

[[Page 3345]]

unrelated to coal mine dust exposure and occurred before the qualifying

ventilatory study. Compare Youghiogheny and Ohio Coal Co. v. McAngues,

996 F.2d 130 (6th Cir. 1993), cert. den. 114 S. Ct. 683 (1994) (holding

that miner's disabling injuries from automobile accident were

irrelevant to determining whether he was totally disabled by

pneumoconiosis). Although Vigna was decided under part 727, the

proposed changes to paragraph 718.204(a) are designed to ensure that

the Seventh Circuit's view will not be applied outside that circuit to

cases arising under part 718.

The proposed paragraph (a) does recognize one exception to the

irrelevancy of disabling nonrespiratory conditions in determining

whether the miner is totally disabled by pneumoconiosis. Such

conditions or diseases are relevant if they produce a chronic

respiratory or pulmonary impairment. Some cardiac and neurological

diseases, for example, may affect the respiratory musculature in such a

way as to impair the individual's ability to breathe without actually

affecting the lungs. See, e.g., Panco v. Jeddo-Highland Coal Co., 5

Black Lung Rep. 1-37 (1982) (concerning respiratory impairment from

amyotrophic lateral sclerosis, a neurological disease); Maynard v.

Central Coal Co., 2 Black Lung Rep. 1-985 (1980) (concerning

respiratory impairment from heart disease); Skursha v. U.S. Steel

Corp., 2 Black Lung Rep. 1-518 (1980) (same). Similarly, a traumatic

accident such as an injury to the spinal column may affect breathing

but not the lungs. The effect of the disease or trauma, its

relationship to the miner's ability to breathe, and the interplay with

the miner's pneumoconiosis, all determine the contributing causes of

the miner's disability.

The second change involves the definition of ``total disability''.

The proposed change to paragraph (b)(1) expresses what the Department

has always maintained: that the ``disability'' which the miner suffers

is a totally disabling respiratory or pulmonary impairment, and not

``whole person'' disability. Although the two courts of appeals to

consider the issue have accepted the Department's position, clarifying

the definition will hopefully end litigation on this issue. See Beatty

v. Danri Corp. & Triangle Enterprises, 49 F.3d 993 (3d Cir. 1995);

Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4th Cir. 1994).

Another significant change is the addition of criteria defining

``disability causation,'' or the degree to which pneumoconiosis must

contribute to the miner's disability. Several courts have addressed the

issue, and formulated various standards: Robinson v. Pickands Mather &

Co./Leslie Coal Co., 914 F.2d 35, 38 (4th Cir. 1990) (``contributing

cause''); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir. 1990)

(necessary though not sufficient cause); Lollar v. Alabama By-Products,

893 F.2d 1258, 1265 (11th Cir. 1990) (``substantial contributing

factor''); Adams v. Director, OWCP, 886 F.2d 818, 825 (6th Cir. 1989)

(disability ``due at least in part'' to pneumoconiosis); Bonessa v.

United States Steel Corp., 884 F.2d 726, 733 (3d Cir. 1989)

(``substantial contributor''); Mangus v. Director, OWCP, 882 F.2d 1527,

1531 (10th Cir. 1989) (at least a ``contributing cause''). Few, if any,

practical differences exist in the various expressions of the

contribution standard.

The Department has concluded that a single standard should be

articulated to eliminate needless confusion and litigation over the

relationship between a miner's pneumoconiosis and his disability. The

Department has selected the ``substantially contributing cause''

language because it ensures a tangible and actual contribution; a more

demanding standard would be too harsh, especially when many miners

suffer from a multiplicity of respiratory problems. Moreover, the

``substantially contributing cause'' standard mirrors the criteria for

proving that pneumoconiosis contributed to the miner's death. See 20

CFR 718.205(c). The U.S. Court of Appeals for the Third Circuit found

the contribution standard for death a persuasive basis for interpreting

the disability standard: ``We perceive no reason why the phrase 'total

disability due to pneumoconiosis' should not track the phrase `death

due to pneumoconiosis.''' Bonessa, 884 F.2d at 733.

Proposed paragraph (c)(1) also defines disability causation in

terms of worsening a totally disabling respiratory or pulmonary

condition which is itself wholly caused by non-coal mine exposures.

Thus, a miner whose pneumoconiosis further damages his lungs may

establish the necessary causal link even if nonoccupational exposure is

a self-sufficient cause of the respiratory disability. The proposed

language reflects the Department's disagreement with the result reached

by the U.S. Court of Appeals for the Fourth Circuit in Dehue Coal Co.

v. Ballard, 65 F.3d 1189 (4th Cir. 1995) (holding that a miner who was

totally disabled by lung cancer was not entitled to benefits because

his pneumoconiosis could not, by definition, contribute to the

disability).

The remaining changes are structural or editorial. Paragraph (c)(5)

has been changed to paragraph (d) (i) and (ii); the remaining

provisions addressing the use of lay evidence have been moved into

paragraph (d) given the commonality of their purpose: establishing

entitlement through lay evidence. The last sentence of current

paragraph (c)(5) makes clear that proving disability through clinical

tests or physicians' reports does not necessarily prove that

pneumoconiosis caused the disability. This provision therefore

underscores the difference between disability and disability causation

as separate elements of entitlement. This point is sufficiently

important to warrant placement in a separate paragraph as proposed

paragraph (c)(2). Finally, current paragraph (f) is deleted because it

simply duplicates 20 CFR 725.504 to the extent that both provisions

preclude a working miner from receiving benefits unless the award is

based on a finding of complicated pneumoconiosis.

20 CFR 718.205. The Department has taken the position that

pneumoconiosis causes the miner's death if the disease is either the

actual cause of death or hastens death to an appreciable extent. This

interpretation of the phrase ``death due to pneumoconiosis'' should be

made explicit in the regulation. Under the 1981 amendments to the BLBA,

a deceased miner's survivor who filed a claim on or after January 1,

1982, is eligible for benefits only if pneumoconiosis caused, or

contributed to, the miner's death. The Department added paragraph (c)

to Sec. 718.205 to implement congressional intent that pneumoconiosis

must play a role in the miner's death in order to entitle a survivor to

benefits. Based on the legislative history of the 1981 amendments, the

Department concluded that the disease must be at least a

``substantially contributing cause'' of the miner's death. See 48 FR

24276--24277, May 31, 1983, Sec. 718.205 Discussion and changes (h)-

(n). In order to give practical meaning to that phrase, the Department

has consistently argued in litigation that the medical evidence must at

least prove that the miner's pneumoconiosis actually hastened his

death. Four courts of appeals have deferred to the agency's

interpretation of the regulation. Brown v. Rock Creek Mining Co., 996

F.2d 812, 816 (6th Cir. 1993); Peabody Coal Co. v. Director, OWCP, 972

F.2d 178, 183 (7th Cir. 1992); Shuff v. Cedar Creek Coal Co., 967 F.2d

977, 980 (4th Cir. 1992), cert. den. 113 S.Ct. 969 (1993); Lukosevicz

v. Director, OWCP, 888 F.3d 1001, 1006

[[Page 3346]]

(3d Cir. 1989). The Benefits Review Board has refused to adopt the

Department's position, but has not articulated an alternative standard.

See, e.g., Tackett v. Armco, Inc., 16 Black Lung Rep. (MB) 1-88, 1-93

(1992), vacated on remand 17 Black Lung Rep. (MB) 1-103, 1-104 (1993).

In order to ensure consistent application of a single legal standard,

paragraph (c) of Sec. 718.205 should be amended by adding proposed

paragraph (c)(5), which codifies the Department's views.

Subpart D--Presumptions Applicable to Eligibility Determinations

20 CFR 718.301. Paragraph (b) should be removed because a new

definition of ``year'' is added to 20 CFR 725.101(a). Paragraph (a) of

Sec. 718.301 should be amended to make reference to proposed

Sec. 725.101(a)(32) and its requirements. Section 718.301 is one of two

regulations which currently define ``year'' for determining the length

of a miner's occupational history; the other regulation is 20 CFR

725.493(b) (identifying responsible operator). The Department has

concluded that a single regulatory definition with program-wide

application should replace the two current regulations. Determining the

length of a miner's occupational history is the same inquiry for

establishing eligibility for presumptions as for identifying a

responsible operator, and a single standard should apply in both cases.

20 CFR 718.307. Remove 20 CFR 718.307 (a) and (b) and add the

contents of Sec. 718.307(a) to 20 CFR 725.103. Paragraph (a) contains

material which concerns any claim filed under the BLBA, and not just

claims governed by the part 718 medical criteria. Accordingly, the

contents of paragraph (a) will be removed from part 718 and placed in

Sec. 725.103. See proposed Sec. 725.103. Paragraph (b) effectively

duplicates new proposed Sec. 725.103, which more broadly describes the

burden of proof. This language should therefore be removed.

Subpart E--Miscellaneous Provisions

20 CFR 718.401. Remove Sec. 718.401 because it duplicates proposed

Sec. 725.406. Current Sec. 718.401 recognizes each miner's statutory

right to a complete pulmonary evaluation at the Department's expense.

See 30 U.S.C. 923(b). This regulation also authorizes both the miner

and the district director to develop additional medical evidence.

Section 718.401 duplicates material in the cross-referenced

regulations, 20 CFR Secs. -725.405 and 725.406; the part 725

regulations have program-wide applicability. Consequently, no need

exists for including this regulation in part 718.

20 CFR 718.402. Remove the first sentence of Sec. 718.402 and add

the remainder of this provision to proposed Sec. 725.414(a)(3)(iii).

Section 718.402 describes the consequences of a claimant's failure to

cooperate in the development of medical evidence needed to adjudicate

the claim. This provision duplicates the substance of proposed

Sec. 725.414(a)(3)(iii), which deals with a claimant's unreasonable

refusal to submit to medical examinations and testing. Section 718.402

also penalizes the claimant who refuses to provide a complete health

history or permit access to medical records. This aspect of the

regulation will be added to proposed Sec. 725.414. Given the

overlapping purposes of the two regulations, Sec. 718.402 should be

removed from part 718 in favor of proposed Sec. 725.414, which has

program-wide applicability.

20 CFR 718.403. Remove 20 CFR 718.403 from part 718 and add to part

725. Section 718.403 codifies the burden of proof imposed on any party

alleging any fact in support of its position under part 718. The

parties to a claim, however, are required to prove a variety of facts

under part 725 which also bear on entitlement issues, e.g., status as a

miner (Sec. 725.202); dependency and relationship (Secs. 725.204-

725.228); liability as a responsible operator (subpart G); and

entitlement to medical benefits (subpart J). Part 725 does not contain

a counterpart to Sec. 718.403. Accordingly, a single provision

generally allocating the parties' burdens of proof under the BLBA

logically should be placed in part 725, the regulations with program-

wide applicability. See proposed Sec. 725.103.

20 CFR 718.404. Remove 20 CFR 718.404 from part 718 and move to

part 725. Section 718.404(a) makes explicit a miner's obligation to

inform the Department and the responsible operator, if any, if he

resumes work in a coal mine or comparable and gainful work. A return to

such work requires the termination of benefits unless the miner's award

is based on complicated pneumoconiosis. See 20 CFR 725.504(c).

Paragraph (b) reiterates the Department's authority to reopen a finally

approved claim during the lifetime of the miner and develop medical

evidence if the particular circumstances so warrant. Both provisions

are more logically placed in part 725 as regulations of program-wide

applicability. See proposed Sec. 725.203 (c) and (d).

Appendix B to Part 718

Appendix B to Part 718, 2(ii). The technical requirements for the

administration of pulmonary function studies should be amended to

preclude taking the initial inspiration from the open air. The quality

standards currently permit an individual performing a pulmonary

function study to take the initial inspiration from either the open air

or the testing machine. The proposed regulation eliminates this choice.

Open air inspiration is not recorded on the spirogram, which documents

the performance of the test. Consequently, the validity of such an

initial inspiration cannot be independently verified by a reviewing

physician. Because less than optimum inspiration will produce a ``false

low'' result, such tests may yield erroneously abnormal values. The

open-air inspiration option therefore must be eliminated in order to

ensure that the validity of every pulmonary function study can be

independently ascertained.

The Department does not propose to change Tables B1-B6 in Appendix

B, which are used to evaluate the results of pulmonary function tests

(see proposed Sec. 718.204(b)(2)(i)). Accordingly, the tables will not

be republished in either the proposed or final versions of this rule in

the Federal Register. The tables will continue to be published as part

of Appendix B to part 718 in the Code of Federal Regulations once this

rule becomes final, however. Parties interested in reviewing the tables

may consult earlier editions of the Code of Federal Regulations or the

Federal Register in which the tables were originally promulgated, 45 FR

13699-13710, Feb. 29, 1980.

Appendix C to Part 718. Appendix C should be amended to specify

that arterial blood gas studies should not be conducted during, or

shortly after, a miner's acute respiratory illness. Such studies are

likely to produce spurious values which are not indicative of the

miner's true condition.

20 CFR Part 722--Criteria for Determining Whether State Workers'

Compensation Laws Provide Adequate Coverage for Pneumoconiosis and

Listing of Approved State Laws

Section 421 of the Black Lung Benefits Act requires the Secretary

of Labor to publish in the Federal Register a list of all states whose

workers' compensation laws provide ``adequate coverage'' for

occupational pneumoconiosis. 30 U.S.C. 931(a). The purpose of this

provision was to allow states to assume responsibility for providing

compensation to former coal

[[Page 3347]]

miners who were totally disabled due to pneumoconiosis and to their

dependent survivors in the event of the miner's death due to

pneumoconiosis. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8-9

(1976). The Secretary's certification that a state law provides

adequate coverage prevents any claim for benefits arising in that state

from being adjudicated under the Black Lung Benefits Act. To date, no

state law has been approved.

The Act provides that a state may be included on the Secretary's

list only if its provisions governing benefit amounts, entitlement

standards, statute of limitations, and prior and successor operator

liability are ``substantially equivalent'' to those contained in the

Act. 30 U.S.C. 931(b)(2). In addition, the Secretary may promulgate

additional regulations to ensure adequate compensation for total

disability or death due to pneumoconiosis. 30 U.S.C. 931(b)(2)(F). The

Secretary first promulgated regulations under this authority on March

12, 1971, and amended those regulations on March 30, 1973 in light of

changes to the Longshore and Harbor Workers' Compensation Act in 1972.

38 FR 8238, March 30, 1973. These regulations, codified at 20 CFR part

722, have not been amended since 1973. In light of the subsequent

statutory changes made by the Black Lung Benefits Reform Act of 1977

and the Black Lung Benefits Amendments of 1981, the current regulations

are obsolete.

The Department has recently concluded a review of all of the

regulations implementing the Act, and has determined that the continued

publication of these criteria in the Code of Federal Regulations is no

longer required. Accordingly, rather than amend the regulations to

reflect the current law, the Department intends to simply delete the

specific criteria and replace them with a general statement that in the

future, upon application of any state, the Department will review the

state's workers' compensation law in light of the current Act to

determine whether the state law provides adequate coverage. Guided by

the criteria set forth in 30 U.S.C. 931(b)(2), the Department will

approve such a state law only if it guarantees at least the same

compensation, to the same individuals, as is provided by the Act. The

Act requires that if the Department approves any state laws, it publish

a list of the affected states in the Federal Register, 30 U.S.C.

931(b)(1).

Finally, the revised regulations substitute the gender neutral term

``workers' compensation laws'' for the term ``workmen's compensation

laws,'' used in the statute. No substantive alteration in the statutory

term is intended.

20 CFR Part 725--Claims for Benefits Under Part C of Title IV of the

Federal Mine Safety and Health Act, as Amended

Subpart A--General

20 CFR 725.1. Section 725.1 provides a broad overview of the

various parts of the Black Lung Benefits Act (BLBA), the amendments

thereto, and the incorporation of the Longshore and Harbor Workers'

Compensation Act (LHWCA). The Department proposes to amend this

regulation to include a comparable reference to the Social Security

Act, 42 U.S.C. 301 et seq., provisions of which are also incorporated

into Parts A, B and C of the BLBA. The BLBA is actually three statutes

in one. The Act itself is subchapter IV of the Mine Safety and Health

Act, chapter 30 of the United States Code. Part C of the Act, which the

Department administers, also incorporates many provisions of the LHWCA,

33 U.S.C. 901 et seq. Congress authorized the Department to vary the

terms of the incorporated LHWCA provisions by regulation, and the

Department has done so when the special requirements of the black lung

benefits program dictated the variance. Congress also incorporated

parts of the Social Security Act into Parts A and B of the BLBA.

Congress once again authorized the Department to adopt and modify the

Part B provisions ``to the extent appropriate'' for use in the

administration of Part C. Accordingly, Sec. 725.1 should be amended to

include a brief description of the Social Security Act incorporation

comparable to the present discussion of the LHWCA incorporation.

20 CFR 725.2. For an explanation of the changes to paragraph (b),

see the explanation of the changes to Sec. 725.4. Paragraph (c) should

be added to explain the applicability of these regulatory revisions to

pending claims and to claims filed after the effective date of the

revised regulations. The Department intends that the proposed revisions

announced in this Notice will apply to the adjudication of all claims

for benefits under the Black Lung Benefits Act pending with the

Department on the date these revisions go into effect, to the extent

that such application is consistent with the Department's authority

under the Black Lung Benefits Act and with the efficient administration

of the program. The Department considers a claim to be pending if the

claim has not yet been finally denied, or less than one year has passed

since the claim was finally denied. In addition, all of the proposed

regulations will apply to any claim filed after the regulations become

final.

The Supreme Court has held that a statutory grant of legislative

rulemaking authority to an agency does not confer the power to issue

retroactive rules unless Congress expressly provides such power. Bowen

v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). The Black

Lung Benefits Act does not contain such an express grant. Accordingly,

the Department's ability to issue rules of retroactive application is

circumscribed.

Determining whether a rule is one of retroactive application,

however, is often difficult. In Landgraf v. USI Film Products, 114 S.

Ct. 1483 (1994), the Court adopted the definition set forth by Justice

Story in Society for Propagation of the Gospel v. Wheeler, 22 F.Cas.

756 (No. 13,156) (CCDNH 1814):

[E]very statute, which takes away or impairs vested rights

acquired under existing law, or creates a new obligation, imposes a

new duty, or attaches a new disability, in respect to transactions

or considerations already past, must be deemed retrospective. * * *

114 S. Ct. at 1499. The Court observed, however, that ``[a] statute

does not operate `retrospectively' merely because it is applied in a

case arising from conduct antedating the statute's enactment, or upsets

expectations based in prior law.'' Ibid. (citation omitted).

One example of an attempt to regulate retroactively was the

Department of Health and Human Services regulation at issue in

Georgetown University Hospital. In 1983, the U.S. District Court for

the District of Columbia had invalidated a 1981 HHS regulation

governing hospital reimbursement for failure to provide notice and an

opportunity to comment. In 1984, HHS reissued the regulation following

notice and comment, and attempted to make it retroactive to 1981. The

Supreme Court invalidated the second regulation as an unauthorized

attempt to promulgate a retroactive regulation. At the other end of the

spectrum are procedural changes. As the Supreme Court noted in

Landgraf, ``[c]hanges in procedural rules may often be applied in suits

arising before their enactment without raising concerns about

retroactivity.'' 114 S. Ct. at 1502.

For purposes of retroactivity, the revisions to the Department's

regulations implementing the Black Lung Benefits Act, 30 U.S.C. 901 et

seq., may be divided into two groups. The first, consisting of

revisions to part 726, have no effect on the adjudication of

[[Page 3348]]

claims filed under the Act. Those revisions, which establish procedures

for enforcing the general obligation of coal mine operators to secure

the payment of benefits under the Act, will be made effective

immediately upon publication of the final rule, and will govern all

subsequent penalty assessments.

The Department also proposes to revise various provisions in part

726 that address the requirements imposed on coal mine operators who

seek the Department's authority to self-insure their liability. These

revisions merely clarify the Department's existing interpretation of

the Act. Accordingly, these regulations may apply to the evaluation of

past conduct. In Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993),

the court held that ``[a] rule simply clarifying an unsettled or

confusing area of the law * * * does not change the law, but restates

what the law according to the agency is and has always been: 'It is no

more retroactive in its operation than is a judicial determination

construing and applying a statute to the case.' Manhattan General

Equip. Co. v. Commissioner, 297 U.S. 129, 135 (1936).''

The second, and largest, group of revisions are those amending

Parts 718 and 725, which govern the adjudication of claims for benefits

filed by miners and their survivors, as well as the payment of benefits

in approved claims. A number of the revisions alter the procedures to

be used in adjudication, including those related to processing of

claims by the district director, the adjudication of claims before the

Office of Administrative Law Judges, responsible operator issues, and

subsequent claims. These changes, however, significantly alter the

parties' obligations and expectations, for example, by limiting

evidence, creating presumptions, and establishing burdens of proof.

Accordingly, despite the Department's authority under Georgetown

University Hospital and Landgraf to issue procedural rules that take

effect immediately, the Department proposes to apply the revised

versions of the regulations governing those topics only to claims filed

after the effective date of the amendments. Because the remaining

revisions merely clarify the Department's interpretation of the current

Act and regulations, the Department intends to apply them to all claims

pending with the Department, and to the payment of all benefits that

become due and payable, or that remain unpaid, after the effective date

of these revisions.

20 CFR 725.4(d). In 1978, Congress required the Department of Labor

to promulgate interim entitlement criteria that were ``no more

restrictive'' than criteria used to adjudicate claims that had been

filed with the Social Security Administration under Part B of the Black

Lung Benefits Act. These interim criteria were to be used until the

Department could develop permanent criteria. The interim part 727

regulations were published at 43 FR 36818, Aug. 18, 1978. Because the

Department's permanent part 718 criteria took effect on April 1, 1980,

see 20 CFR 718.2, the part 727 regulations apply only to claims filed

before that date. The Department estimates that several hundred part

727 claims remain pending in various stages of adjudication. Because

the parties to these claims are quite familiar with the standards for

establishing eligibility under part 727, and no new claims will be

adjudicated under these standards, the Department intends to

discontinue the annual publication of part 727 in the Code of Federal

Regulations. Those standards will remain in effect for all claims to

which they apply. Parties interested in reviewing part 727 may consult

earlier editions of the Code of Federal Regulations or the Federal

Register in which the regulations were originally published.

20 CFR 725.101. The terms defined by Sec. 725.101(a)(4) et seq.

have been put in alphabetical order to assist the reader in finding the

appropriate definitions. The explanations below refer to the renumbered

paragraphs.

20 CFR 725.101(a)(6). Benefits. The regulation should be amended to

make clear that the initial pulmonary evaluation obtained by the

Department pursuant to 30 U.S.C. 923(b) is considered a ``benefit''

paid by the Trust Fund or the operator on the claimant's behalf. The

clinical testing and medical examination required by Sec. 413(b) of the

BLBA confer a ``benefit'' on the miner to the extent that the Trust

Fund pays for the miner's opportunity to substantiate his claim.

20 CFR 725.101(a)(13), Coal Preparation; (a)(19), Miner or Coal

Miner. The regulation should be amended to reflect the Department's

position that coke oven workers are not covered by the BLBA. The

Department has long taken the position that the preparation activities

undertaken at coke ovens are not covered by the BLBA. This position

reflects Congress' understanding of the scope of coverage intended by

the statutory definition of ``miner.'' 30 U.S.C. 902(d). See S.Rep. No.

209, 95th Cong., 1st Sess. 21 (May 16, 1977) (``Nor does [the

definition] include such individuals not directly related to the

production of coal such as coke oven workers.''); 123 Congressional

Record 24,236 (1977) (Sen. Randolph: ``* * * coke oven workers are not

included in the definition.''). See also Fox v. Director, OWCP, 889

F.2d 1037 (11th Cir. 1989); Sexton v. Matthews, 538 F.2d 88 (4th Cir.

1976). This clarifying language ensures that the definitions of ``coal

preparation'' and ``miner or coal miner'' do not encompass activities

involving the commercial production of coke, which is outside the

extraction and transportation processes.

20 CFR 725.101(a)(16). District Director. The proposed change

merely conforms the regulation to current administrative practice, and

ensures that any action taken by, or in the name of, a district

director shall be given full credit as the action of a deputy

commissioner.

20 CFR 725.101(a)(17). Division or DCMWC. The proposed change

specifies the agency within the Department which contains the Office of

Workers' Compensation Programs and the Division of Coal Mine Workers'

Compensation.

20 CFR 725.101(a)(31). Workers' Compensation Law. This definition

should be amended to make clear that certain benefits paid from a

state's general revenues are not workers' compensation payments for

purposes of the BLBA. The BLBA requires the Department to offset a

claimant's federal benefits by any benefits received from a state

pursuant to a workers' compensation law for disability or death due to

pneumoconiosis. 30 U.S.C. 932(g). Since the Act's inception, the

Department has considered payments made to disabled miners by a state

from general revenues to be excluded from benefits afforded by

``workers' compensation laws.'' Both the Third Circuit and the Benefits

Review Board, however, have rejected the Department's position.

O'Brockta v. Eastern Associated Coal Co., 18 Black Lung Rep. 1-72

(1994), aff'd sub nom. Director, OWCP v. Eastern Associated Coal Co.,

54 F.3d 141 (3d Cir. 1995). The Board held that Sec. 932(g) clearly

refers to ``workers' compensation law'' without regard to the source of

funding for the payments. The Third Circuit rejected this reasoning but

agreed that the Department's position was wrong. The Court held that

Sec. 932(g) is ambiguous, but that the Department's policy

impermissibly implies limitations on current Sec. 725.101(a)(4) which

are inconsistent with the unequivocal language of the regulation. The

Court suggested that the Department amend

[[Page 3349]]

the regulation to codify its policy. The proposed regulation makes

clear the Department's longstanding policy that payments made from a

state's general revenues are not workers' compensation benefits subject

to offset under the Act.

20 CFR 725.101(a)(32). The BLBA does not define a ``year'' for

purposes of computing the length of a miner's occupational history. In

1978 and 1980, the Department promulgated regulations which adopted the

current 125-day rule. 20 CFR 725.493(b), 718.301(b). The rationale for

this policy decision is explained in detail in the comments

accompanying the final regulations. 43 FR 36804, Aug. 18, 1978,

Sec. 725.493, Discussion and changes (b); 45 FR 13691, Feb. 29, 1980,

Sec. 718.301, Discussion and changes (b). The regulations are

substantially the same, but not identical. The proposed

Sec. 725.101(a)(32) consolidates provisions of the two existing

regulations into a definitional term with program-wide application.

In addition, the regulation codifies the Department's current

position with respect to absences, such as vacation and sick leave,

that are approved by the miner's employer. In such cases, where the

employer/employee relationship is uninterrupted, a miner is credited

with having worked during the period of the approved absence. Other

absences, such as the time during a strike or layoff, are not counted

as working days. Finally, the proposed section permits the adjudication

officer to use the Office's methodology for computing the length of the

miner's employment history as a fallback. See ``Coal Mine (BLBA)

Procedure Manual,'' ch. 2-700 (1994). The Bureau of Labor Statistics

(BLS) has compiled the average daily and annual wages for the coal mine

industry. A table of this data appears in the Office's Manual. If the

best available evidence consists of annual income statements, the

amount of time the miner worked each year as a miner may be computed by

dividing the reported income by the average daily income for that year.

The miner may be credited with a year, or a fractional part of a year,

based on the ratio of this data. If, however, the miner's annual income

exceeded the average income for that year, he may not be credited with

more than a year of employment for that income year.

20 CFR 725.103. Section 718.403 presently codifies the burden of

proof imposed on any party alleging any fact in support of its position

under part 718. The parties to a claim, however, are required to prove

a variety of facts under part 725 which also bear on entitlement

issues, e.g., status of a miner (Sec. 725.202); dependency and

relationship (Secs. 725.204-725.228); liability as a responsible

operator (subpart G); and entitlement to medical benefits (subpart J).

Part 725 does not contain a counterpart to Sec. 718.403. Accordingly, a

single provision generally allocating the parties' burdens of proof

under the BLBA logically should be placed in part 725 since those

regulations have program-wide applicability.

Subpart B--Persons Entitled to Benefits, Conditions, and Duration of

Entitlement

20 CFR 725.202. The BLBA contains a broad definition of ``miner''

which the courts have liberally construed. See Dowd v. Director, OWCP,

846 F.2d 193 (3d Cir. 1988). In keeping with that liberal construction,

this regulation should be amended to create a rebuttable presumption

that any individual working at a coal mine or coal preparation facility

is a miner. The presumption is grounded in common sense: the vast

majority of persons working at a coal mine will ordinarily have duties

related to the mining processes of coal extraction and/or preparation.

This presumption can be rebutted by evidence that the individual is not

actually performing work integral to the extraction or preparation of

coal, or the individual's work involves only casual contact with the

coal mine operation. The structure of the regulation should also be

changed to distinguish special provisions relating to transportation

and construction workers. Of special note is the fact that construction

workers alone are relieved of the burden to prove that their work

involves the extraction or preparation of coal; working at a coal mine

site in construction activities which involve mine dust exposure is

sufficient to make them miners. See The Glem Company v. McKinney, 33

F.3d 340 (4th Cir. 1994).

20 CFR 725.203. One of the elements of entitlement required by

Sec. 725.202 is that the miner file a claim. Section 725.203(a), as

currently written, provides that all of the Sec. 725.202 requirements

must be satisfied for each month of entitlement. These criteria

effectively mean that the first month in which the miner fulfills all

the requirements for entitlement will never be earlier than the month

in which he files an application for benefits. A miner, however, is

entitled to benefits for all periods of compensable disability,

including any period of disability occurring before the claim is filed.

20 CFR 725.503. To the extent that the cross-reference to Sec. 725.202

improperly limits the miner's entitlement period (and conflicts with 20

CFR 725.503), the reference will be removed, and the language clarified

to conform to Sec. 725.503.

New paragraphs (c) and (d) incorporate material from 20 CFR

718.404, which has been deleted. Paragraph (c) makes explicit a miner's

ineligibility for black lung disability benefits if the miner resumes

his usual coal mine work or comparable and gainful work absent the

presence of complicated pneumoconiosis. Paragraph (d) reiterates the

Department's authority to reopen a finally approved claim during the

lifetime of the miner and develop medical evidence if the particular

circumstances warrant reopening. Both provisions are more logically

placed in part 725 as regulations of program-wide applicability. See 20

CFR 725.2(b).

20 CFR 725.204, .214. Sections 725.204 and 725.214 should be

amended to recognize the coexisting eligibility of both a qualified

spouse and an individual who married the miner in ignorance of a legal

impediment to that marriage. The BLBA incorporates Sec. 416(h)(1) of

the Social Security Act (SSA), which describes the requirements for

establishing the marital relationship between the wage earner and the

spouse for purposes of qualifying as a ``wife, husband, widow or

widower.'' 42 U.S.C. 416(h)(1), as incorporated by 30 U.S.C. 902(a)(2),

(e). The Department has implemented Sec. 416(h)(1) in the current

Secs. 725.204 (for spouses) and 725.214 (for surviving spouses). Recent

amendments to the SSA require corresponding changes in the regulations.

Section 416(h)(1) recognizes that both the ``legal'' and ``deemed''

spouses may be entitled to benefits. An individual qualifies as the

miner's ``legal'' spouse by proving the existence of a valid marriage

under state law. A ``deemed'' spouse, however, must demonstrate that he

lived with the miner either at the time of application or the time of

the miner's death, and:

in good faith went through a marriage with such individual resulting

in a purported marriage between them which, but for a legal

impediment not known to the applicant at the time of such ceremony,

would have been a valid marriage * * *.

42 U.S.C. 416(h)(1)(B)(i). The SSA defines a ``legal impediment'' as

only an impediment (I) resulting from the lack of dissolution of a

previous marriage or otherwise arising out of such previous marriage

or its dissolution, or (II) resulting from a defect in the procedure

followed in connection with such purported marriage.

42 U.S.C. 416(h)(1)(B)(iv).

Before 1990, Sec. 416(h)(1)(B) contained a provision preventing a

``deemed''

[[Page 3350]]

spouse from receiving benefits if a ``legal'' spouse existed and was

receiving benefits on the wage earner's account:

The [deemed spouse] provisions shall not apply if (i) another

person is or has been entitled to [old age and survivor's insurance]

benefit[s] * * * on the basis of the wages and self-employment

income of such insured individual and such other person is (or is

deemed to be) [the legal spouse] * * * of such insured individual

under subparagraph (A) at the time such applicant files the

application * * *.

42 U.S.C. 416(h)(1)(B) (1989). The Department used this version of

Sec. 416(h)(1) in promulgating the current regulatory criteria for

proving a relationship between the miner and spouse or surviving

spouse.

In 1990, Congress amended Sec. 416(h)(1)(B) by deleting the bar on

entitlement for a deemed spouse even if a legal spouse existed and was

receiving benefits. Omnibus Budget Reconciliation Act, Sec. 5119, 104

Stat. 1388-278 to 1388-280 (1990). The express purpose of the amendment

was to allow payment of concurrent benefits to both the legal and the

deemed spouses. See H. Rep. No. 101-964, 1990 U.S.C.C.A.N. 2649, 2650

(conference report). Congress intended that ``the existence of a legal

spouse would no longer prevent a deemed spouse from receiving benefits

on the worker's record or terminate the benefits of a deemed spouse who

was already receiving benefits on the worker's record.'' Id. at 2650.

Moreover, Congress expected that a deemed spouse would receive benefits

``on the same basis as if * * * she were a legal spouse * * *.'' Id.

The Social Security Administration amended its disability regulation to

reflect the statutory changes (see 20 CFR 404.346); it has not yet

amended the part 410 regulations, which govern its administration of

Part B of the BLBA. See 20 CFR part 410, subpart C (``Relationship and

Dependency'').

The proposed changes to Secs. 725.204 and 725.214 amend the

dependent and surviving spouse relationship criteria to conform to

changes in the SSA. Such changes are required for the regulations

affecting surviving spouses, given the incorporation of the SSA

statutory definitions of ``dependent'' and ``widow''. Moreover,

Congress has previously evidenced the intent to harmonize the SSA and

the BLBA statutory provisions which address marital status (see

Explanation of proposed changes to Sec. 725.212); eliminating the

``deemed'' spouse bar is consistent with this congressional policy.

20 CFR 725.209, .219, .221, .222. These provisions should reflect

the age limit for a disabled dependent currently specified in 42 U.S.C.

402(d)(1)(B), as incorporated into the BLBA by 30 U.S.C. 902(g).

Section 402(g)(ii) of the BLBA defines ``child'' to include an

individual who is disabled by SSA standards, provided such disability

``began before the age specified in section 202(d)(1)(B)(ii) of the

Social Security Act * * *.'' Congress has raised the age for the onset

of disability for the SSA program from 18 to 22 since Sec. 725.209 was

promulgated. Because the BLBA specifically incorporates its disability

age limit from the SSA, the regulation should be changed to reflect the

change in the SSA. Finally, the parenthetical cross-reference to 20 CFR

404.320(c) in Sec. 725.209(b)(1) is corrected. The SSA regulations

which concern full-time student criteria are 20 CFR 404.367 through

404.369.

20 CFR 725.212. Proposed paragraph (b) reflects the Department's

position that the BLBA and pertinent legislative history require the

payment of full monthly survivor's benefits to each surviving spouse

and surviving divorced spouse who satisfies the entitlement criteria,

regardless of the existence of any other spouse who also qualifies for

benefits.

Prior to 1992, the Department's policy regarding the allocation of

benefits between (or among) multiple surviving spouses of the same

miner, as stated in the ``Coal Mine (BLBA) Procedure Manual,'' limited

each spouse to less than full monthly benefits:

If more than one claimant is found entitled, no more than the

maximum amount of benefits for the number of beneficiaries involved

may be paid under Part C. (e.g., where a surviving spouse and a

divorced spouse both qualify, no more than the claimant plus one

dependent benefits may be paid). This maximum amount is divided

equally between the eligible beneficiaries of equal status.

Ch. 2-900 para. 8(b) (February 1980). In 1992, the Department

reconsidered this position and concluded that each surviving spouse who

meets the criteria for eligibility is entitled to the payment of the

full benefits due a surviving spouse. This change in position was the

result of further reflection on pertinent provisions of the BLBA and

their legislative history.

The BLBA's definition of ``widow'' must be considered in the

context of the Social Security Act's (SSA) definition because SSA's

definition is incorporated into the BLBA, and Congress has consistently

attempted to harmonize the two provisions. Before 1965, the SSA awarded

widow's benefits only to a surviving spouse. See Social Security

Amendments of 1965, Pub. L. No. 89-97, Sec. 308(b)(1), 79 Stat. 286

(1965). The legislative history to the 1965 amendment explicates the

intended operation of the changed definition:

Payment of a wife's or widow's benefit to a divorced woman would

not reduce the benefit paid to any other person on the same social

security account and such wife's or widow's benefit would not be

reduced because of other benefits payable on the same account.

S. Rep. No. 404, 89th Cong., 1st Sess. (1965), reprinted in 1965

U.S.C.C. & A.N. 1943, 2047. See ``Social Security Program Operations

Manual (POMS)'' RS 00615.682 (both surviving spouses and surviving

divorced spouses awarded full [100 percent] benefits).

In 1972, Congress amended the BLBA's definition of a ``widow'' to

permit the payment of benefits to a miner's surviving divorced spouse.

That definition, as amended, now reads:

Such term [widow] also includes a `surviving divorced wife' as

defined in section 216(d)(2) of the Social Security Act who for the

month preceding the month in which the miner died, was receiving at

least one-half of her support, as determined in accordance with

regulations prescribed by the Secretary, from the miner, or was

receiving substantial contributions from the miner (pursuant to a

written agreement) or there was in effect a court order for

substantial contributions to her support from the miner at the time

of his death.

30 U.S.C. 902(e). The legislative history of the amendment indicates

that Congress altered the definition of ``widow'' to make it comport

with the SSA definition:

The term `widow' in section 402(e) is likewise redefined to

conform to the Social Security Administration definition.

S. Rep. No. 743, 92nd Cong., 2d Sess. (1972) reprinted in 1972 U.S.C.C.

& A.N. 2305, 2332. See Wolfe Creek Collieries v. Robinson, 872 F.2d

1264, 1266-67 (6th Cir. 1989). Consequently, by 1972 both statutes

provided a full widow's benefit to a surviving spouse and a surviving

divorced spouse. 42 U.S.C. 402(e).

Section 412 of the BLBA also supports the payment of full benefits

to each qualified survivor. That provision states in pertinent part:

In the case of death of a miner due to pneumoconiosis or, except

with respect to a claim filed under part C of this subchapter on or

after the effective date of the Black Lung Amendments of 1981, of a

miner receiving benefits under this part, benefits shall be paid to

his widow (if any) at the rate the deceased miner would receive such

benefits if he were totally disabled.

30 U.S.C. 922(a)(2). A miner, as the primary beneficiary on a claim, is

[[Page 3351]]

clearly entitled to a full basic benefit. 30 U.S.C. 922(a)(1); 20 CFR

725.520. Upon the miner's death, the ``widow,'' as the primary

beneficiary, must be compensated in like fashion. Id. Section 902(e)

defines the term ``widow'' to include both a surviving spouse and a

surviving divorced spouse. 30 U.S.C. 902(e). Nothing in Sec. 922

provides for an alternative payment amount if a miner is survived by

two widows. Consequently, the plain language of the statutory payment

provisions mandates that both spouses should receive a full (100

percent) basic benefit amount. 30 U.S.C. 922(a)(2). To utilize any

other methodology would require payment to each ``widow'' at less than

the statutorily prescribed ``rate the deceased miner would receive if

he were totally disabled''. 30 U.S.C. 922(a)(2).

20 CFR 725.213. Section 725.213(b)(3) is no longer necessary in

view of the changes made to Sec. 725.204 to confer equal status on the

spouse and ``deemed spouse''. A new paragraph (c) clarifies

administrative practice with respect to survivor beneficiaries who

become ineligible for benefits, but later reestablish eligibility. The

most common reason for losing eligibility (among surviving spouses) is

remarriage; if the remarriage ends through death or divorce, the ex-

beneficiary may apply for a return to entitlement. The individual need

only notify the Office and provide such evidence as may be required to

reestablish eligibility. The new paragraph also makes clear that the

individual is not required to reprove the merits of entitlement.

20 CFR 725.215. Delete paragraph (g)(3)'s reference to ``section''

and replace with ``paragraph''. A miner's surviving spouse may meet the

dependency requirement pursuant to paragraph (g) if the marriage lasted

at least nine months. If the marriage lasted fewer than nine months, a

spouse may nevertheless be deemed the miner's dependent if the miner

dies in an accident or in the line of duty. The purpose of paragraph

(g)(3) is to preclude a survivor's reliance on the exception to the

nine-month marriage rule if the adjudication officer concludes that the

miner would not have lived nine months in any event. Use of the

technical word ``section'', however, makes the language of the entire

regulation inapplicable. Consequently, the reference should be changed

to confine paragraph (g)(3) to its proper context. This change is

consistent with the structure and meaning of the Social Security

Administration's parallel regulation for Part B beneficiaries, 20 CFR

410.360(b).

20 CFR 725.223. Section 725.223 should be changed to reflect the

age limit for a disabled dependent currently specified in 42 U.S.C.

402(d)(1)(B), as incorporated into the BLBA by 30 U.S.C. 922(a)(5). A

new paragraph (d) clarifies administrative practice with respect to

sibling beneficiaries who become ineligible for benefits due to

marriage, but later reestablish eligibility. See the Explanation

accompanying proposed Sec. 725.209 for changing the onset date for a

dependent beneficiary's disability. See the Explanation accompanying

proposed Sec. 725.213(c) for explaining the procedures for the

restoration of entitlement after termination due to marriage.

Subpart C--Filing of Claims

20 CFR 725.306(a). The proposed change is intended to ensure that

another proposed change, in the definition of the term ``benefits,'' 20

CFR 725.101(a)(6), does not produce unintended consequences in cases

where a claimant seeks to withdraw a claim. Currently,

Sec. 725.306(a)(3) prohibits a claimant from withdrawing a claim if he

has received benefits, defined as payments ``on account of disability

or death due to pneumoconiosis,'' unless such benefits have been

repaid. The Department has proposed amending the definition of the term

``benefits'' to include amounts paid from the Trust Fund to provide the

claimant with a complete pulmonary evaluation as required by 30 U.S.C.

923(b). Section 725.306 must also be amended, however, to make clear

that the Department will not require reimbursement of the amount spent

on the claimant's complete pulmonary evaluation as a condition for

withdrawing a claim. The proposed language is similar to language in 20

CFR 725.465(d), which provides an administrative law judge with the

authority to dismiss claims for cause only if the Trust Fund is

reimbursed for any payments made pursuant to 20 CFR 725.522.

20 CFR 725.309. The Department's current regulation governing the

processing and adjudication of subsequent or additional claims for

benefits has been a cause of much litigation. Subsequent claims for

benefits, often misleadingly referred to as duplicate claims, are those

applications filed by the same individual after final denial of a prior

claim. Initially, the litigation dealt with procedural issues. For

example, in Lukman v. Director, OWCP, 11 Black Lung Rep. (MB) 1-71

(Ben. Rev. Bd. 1988), rev'd, Lukman v. Director, OWCP, 896 F.2d 1248

(10th Cir. 1990), the Benefits Review Board held that a claimant was

not entitled to a hearing before an administrative law judge on the

issue of whether he had established a material change in conditions, a

requirement under the current regulations for consideration of the

merits of a subsequent claim.

After the Tenth Circuit reversed the Board's decision, subsequent

claims litigation focused on substantive issues, particularly the type

of evidence a claimant must submit to establish a ``material change in

conditions,'' and thereby escape denial of the subsequent claim on the

grounds of the prior denial. The appellate courts are currently divided

on this issue. The Seventh Circuit has rejected the Department's

interpretation of the regulation, holding that the claimant must

establish that his condition is substantially worse than at the time of

the prior denial in order to avoid another denial, or that ``even a

slight worsening could be and was a material change in condition.''

Sahara Coal Company v. Director, OWCP, 946 F.2d 554, 558 (7th Cir.

1991). The Third, Fourth, and Sixth Circuits gave deference to the

Department's interpretation, Labelle Processing Co. v. Swarrow, 72 F.3d

308 (3d Cir. 1995); Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th

Cir. 1996); Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir.

1994), and held that proof of a change in one of the necessary elements

of entitlement, such as the existence of pneumoconiosis, demonstrates a

material change in condition. The ALJ must thereafter weigh all of the

evidence to determine whether the claimant is entitled to benefits. The

Tenth Circuit recently fashioned yet another interpretation of the

regulation. Wyoming Fuel Co. v. Director OWCP, ____ F.3d ____, No. 94-

9576 (10th Cir. July 23, 1996).

This litigation is attributable, in substantial part, to the

context in which the relevant language was drafted. First proposed on

April 25, 1978 as part of an extensive revision of the regulations

governing the processing and adjudication of claims under the Black

Lung Benefits Act, Sec. 725.309 required that a subsequent claim for

benefits be denied on the grounds of the prior denial. 43 FR 17743,

Apr. 25, 1978. The Department received many comments objecting to the

prohibition against filing a new claim by a miner ``whose condition has

worsened or progressed to total disability.'' 43 FR 36785, Aug. 18,

1978. The Department agreed, and, in an effort to remove the

prohibition, added a clause allowing such claims if ``the deputy

commissioner determines that there has been a material change in

[[Page 3352]]

conditions.'' Id. The Department did not foresee that this wording

would cause such confusion.

At the heart of the current litigation is considerable

misunderstanding about the extent to which the common law concepts of

res judicata, or claim preclusion, and collateral estoppel, or issue

preclusion, apply to the adjudication of black lung benefits claims.

The proposed regulation is intended to resolve both questions.

Initially, the Department acknowledges that the principles of claim

preclusion are applicable to claims under the Act. Pittston Coal Group

v. Sebben, 488 U.S. 105, 122-23 (1988). That applicability, however, is

limited in two important respects. First, Sec. 22 of the Longshore and

Harbor Workers' Compensation Act, 33 U.S.C. 922, as incorporated into

the Black Lung Benefits Act by 30 U.S.C. 932(a), permits the reopening

and readjudication of a denied claim within one year of the order

denying benefits, based on a showing of either a mistake in a

determination of fact or a change in conditions. This reopening

provision, commonly called the right to modification, is a

Congressionally mandated exception to the application of res judicata.

Second, and more important for purposes of the Department's treatment

of subsequent claims, claim preclusion bars only an attempt to

relitigate a cause of action that was previously resolved; it has no

effect on the litigation of a cause of action which did not exist at

the time of the initial adjudication. Lawlor v. National Screen Serv.

Corp., 349 U.S. 322, 328 (1955); ``Restatement (Second) of Judgments''

Sec. 24 cmt. f (1982).

Nowhere is the applicability of this second exception more readily

understood than in the context of workers' compensation. ``It is almost

too obvious for comment that res judicata does not apply if the issue

is claimant's physical condition or degree of disability at two

entirely different times, particularly in the case of occupational

diseases.'' 3A Larson, ``The Law of Workmen's Compensation''

Sec. 79.92(f) (1982). In light of the Department's longstanding belief

in the progressive nature of pneumoconiosis (see Explanation

accompanying Sec. 718.201), the Department believes that the preclusive

effect of a previous denial of benefits should be limited. Proposed

paragraph (d)(5) reflects the most readily apparent application of

claims preclusion. It provides that no benefits are payable, based on a

subsequent claim, for the period of time which was at issue in the

prior proceeding. The regulation thus gives full effect to Sec. 22's

one-year limitation for reopening prior claims based on an allegation

of a mistake in a determination of fact or a change in conditions.

The Department's experience in administering the Black Lung

Benefits Act suggests, however, that the long latency period which

characterizes pneumoconiosis and the disease's progressive nature do

provide cause for allowing a claimant to seek benefits by filing a new

claim more than one year after the denial of a previous claim based on

a change in conditions. Thus, where the evidence establishes a

worsening in the miner's physical condition, the proposed regulation

permits adjudication of a new cause of action based on that worsening.

This adjudication will address the claimant's condition during a

completely different, and later, time period.

The Department recognizes that securing proof of a change in the

applicable conditions of entitlement may be difficult. As the Seventh

Circuit recognized in Sahara Coal, ``[t]o require proof that [the

claimant] was not in fact totally disabled as a result of black lung

disease, or that the extent of his disease or disability was unclear,

would complicate the proceeding unduly.'' 946 F.2d at 558. Although the

Seventh Circuit recognized this difficulty, it nonetheless required the

claimant to bear a burden of proof that the Department believes is too

high: ``he should be required to go further and show that he had missed

the disability threshold the first time so that even a slight worsening

could be and was a material change in his condition.'' Id.

The proposed regulation addresses this evidentiary problem, but in

a manner which recognizes the difficulty inherent in developing medical

evidence documenting a claimant's medical condition at some time in the

past. Paragraph (d)(3) thus creates a rebuttable presumption, based on

a showing that the miner's physical condition has worsened. If the new

evidence submitted by the parties establishes at least one of the

applicable conditions of entitlement previously resolved against the

miner, it is presumed that the miner's physical condition has changed

since the denial of his earlier claim. For example, the miner may

establish that his respiratory impairment is now totally disabling, or

that he has now developed pneumoconiosis. Once invoked, the presumption

may be rebutted if the party opposed to the claimant's entitlement

demonstrates that the denial of the prior claim was erroneous as a

matter of law.

The Department intends that an operator shall not be entitled to

rebut the presumption by taking a position contrary to the position it

adopted in the litigation of the prior claim. For example, where the

operator argued in the prior claim that the miner was not totally

disabled due to pneumoconiosis arising out of coal mine employment, it

may not, in an attempt to rebut the presumption of a change in the

miner's condition, argue that substantial evidence in the prior claim

supported a benefit award.

If the presumption is properly rebutted, the claimant nevertheless

will be entitled to benefits upon a showing that the miner's physical

condition, albeit totally disabling earlier, has significantly

deteriorated since the time of the prior denial. Under the Act, a

totally disabling respiratory impairment is one which prevents the

miner from performing his usual coal mine work. Where the miner's usual

coal mine work required significant physical exertion, a relatively

small respiratory impairment may be totally disabling. Accordingly, the

miner's respiratory condition may continue to deteriorate even after it

reaches the point where it would be considered totally disabling under

the Act.

The operator or Fund may also use traditional principles of issue

preclusion to rebut the presumption. Those principles prohibit the

relitigation of issues where the party against whom the bar is asserted

had a full and fair opportunity to litigate the issue in question, and

resolution of the issue was necessary to the prior judgment. Montana v.

United States, 440 U.S. 147, 153 (1979); ``Restatement (Second) of

Judgments'' Sec. 29 (1982). Thus, where the original claim was denied

solely on the basis that the claimant was not a miner, and the claimant

has not returned to work, relitigation of that issue will be barred.

Because a claimant must establish that he worked as a miner in order to

receive benefits, the subsequent claim must also be denied.

If the presumption is not rebutted, the fact-finder must consider

all of the relevant evidence of record, including the old evidence, in

order to determine whether the claimant is entitled to receive

benefits. The regulation thus effectuates the position advanced by the

Department and accepted by the Third Circuit in Labelle Processing, the

Fourth Circuit in Lisa Lee Mines, and the Sixth Circuit in Sharondale

Corp. Accordingly, paragraph (d)(1) authorizes the admission into the

record of any evidence developed in connection with the earlier claim.

To the extent that the earlier evidence remains relevant to an

evaluation of the claimant's current

[[Page 3353]]

physical condition, it must be considered by the adjudication officer.

In addition, both the claimant and the party opposing the claimant's

entitlement will be able to submit two new pulmonary evaluations or

consultative reports, in accordance with the limits set forth in

proposed Sec. 725.414.

Paragraph (d)(4) recognizes that, once a change in one of the

applicable conditions has been established, the relitigation of issues

previously decided is not precluded. The only exceptions are those

issues to which the parties stipulated and those issues which were not

contested pursuant to Sec. 725.463. For example, assume that in a prior

adjudication an administrative law judge found that the claimant was a

miner but that he did not suffer from pneumoconiosis. The ALJ

accordingly denied benefits, and the claimant did not appeal. In a

subsequent claim, the claimant establishes that he now suffers from

pneumoconiosis, and argues that the operator is precluded from

relitigating his status as a miner. The claimant is incorrect. Because

the operator was not aggrieved by the denial of benefits, it could not

appeal the ALJ's decision to the Benefits Review Board to seek reversal

of the finding that the claimant was a miner. The operator thus did not

have a full and fair opportunity to litigate the claimant's status, and

may not be bound by the prior finding. For the same reason, once a

claimant establishes a change in an applicable condition of

entitlement, such as the extent of disability, he is not precluded from

relitigating any other condition of entitlement, such as the existence

of pneumoconiosis.

Although the Department believes that parties must be allowed to

relitigate issues decided against them in a prior claim as a matter of

fairness, no such concerns underlie the treatment of uncontested issues

(see Sec. 725.463) and other stipulations into which the parties

entered during the adjudication of the prior claim. Where a party's

waiver of its right to litigate a particular issue represents a knowing

relinquishment of that right, such waiver should be given the same

force and effect in subsequent litigation of the same issue.

The proposed regulation also recognizes that a claimant whose claim

has been denied may file a new application within one year of an

earlier denial. Traditionally, such a filing has been considered a

request for modification, Consolidation Coal Co. v. Worrell, 27 F.3d

227, 230 (6th Cir. 1994), and the proposed regulation codifies this

practice. Treating a new application as a modification request is

advantageous for several reasons. First, because it allows the earlier

claim to be reopened, a modification request entitles the claimant to

have his request adjudicated under the entitlement standards in effect

at the time the original claim was filed. Second, if the claimant

establishes a mistake in a determination of fact, modification entitles

him to receive benefits from an earlier date, i.e., either from the

date on which the medical evidence establishes the onset of total

disability due to pneumoconiosis, or, if the evidence does not

establish that date, from the date the original application was filed.

Eifler v. Office of Workers' Compensation Programs, 926 F.2d 663, 666

(7th Cir. 1991).

20 CFR 725.310. Paragraph (b) should be amended to reflect changes

to the procedural regulations restricting the amount of evidence each

party to a claim may submit. Proposed Sec. 725.414 limits the parties

to two pulmonary evaluations or consultative reports in the initial

adjudication of the claim. This limitation would be easily avoided,

however, if parties were free to submit whatever additional evidence

they desired by filing a request for modification. Consequently, the

proposed regulation places an additional restriction, of one pulmonary

evaluation or consultative report, on the submission of evidence in

modification proceedings. See explanation of changes Sec. 725.414.

Proposed paragraph (c) attempts to reconcile a number of court of

appeals cases which address the scope of the district director's

authority to conduct modification proceedings under Sec. 22 of the

LHWCA, 33 U.S.C. 922, as incorporated by 30 U.S.C. 932(a). Four

courts--the Seventh, Ninth, Tenth, and Eleventh Circuits--have held

that a district director lacks the authority to modify a decision

issued by an administrative law judge. Director, OWCP v. Peabody Coal

Co., 837 F.2d 295 (7th Cir. 1988); Director, OWCP v. Palmer Coking Coal

Co., 867 F.2d 552 (9th Cir. 1989); Director, OWCP v. Kaiser Steel

Corp., 860 F.2d 377 (10th Cir. 1988); Director, OWCP v. Drummond Coal

Co., 831 F.2d 240 (11th Cir. 1987). In all four cases, the district

director had initiated modification proceedings in order to correct

allegedly erroneous determinations imposing liability on the Black Lung

Disability Trust Fund.

In contrast, the Fourth and Sixth Circuits have held that

modification proceedings must be initiated before a district director.

Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278 (6th Cir. 1987); Lee v.

Consolidation Coal Co., 843 F.2d 159 (4th Cir. 1988). In both of these

cases, claimants sought to modify denials of benefits by filing

requests for modification. In its decision, the Sixth Circuit correctly

compared the initial stages of modification proceedings to the initial

stages of a new claims proceeding. 818 F.2d at 1282. During these

stages the district director may resolve all of the relevant issues,

provided he has the consent of the parties. Thus, the district director

may issue a proposed decision and order pursuant to 20 CFR 725.418. If

no party lodges a timely objection, the proposed decision and order

will become effective and final. 20 CFR 725.419(d). Thus, where no

party objects to the proposed action, and the modification proceedings

were initiated by the claimant or the responsible operator, it is

unnecessary as well as inefficient to refer the modification request

for a hearing.

In reconciling the courts of appeals opinions, the proposed

regulation distinguishes between cases in which the parties request

modification, or in which the original adjudication of the claim did

not proceed beyond the district director, and those in which the

district director initiates modification proceedings sua sponte

following an administrative law judge's order. In the first and second

groups of cases, the district director may issue a proposed decision

and order or deny the claim by reason of abandonment. Because under the

proposed regulations a claimant or operator may not request a hearing

until after issuance of a proposed decision and order, the second

option contained in current paragraph (c)--forwarding the claim for a

hearing--has been deleted. In cases in which the district director

initiates modification proceedings after issuance of an ALJ's decision

and order, the proposed regulation requires that the case be referred

to the Office of Administrative Law Judges even if none of the parties

requests a hearing. Although the Department views the proposed

distinction as one with little significance, the proposed regulation is

consistent with the four court of appeals decisions which require such

a result.

Paragraph (c) has also been revised to ensure that any party that

requests reconsideration receives a full and fair adjudication of its

request. Thus, an administrative law judge may not deny modification on

the grounds that the party requesting modification has not submitted

any new evidence. O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S.

249, 256 (1971). In such a case, the administrative law judge is

obligated to re-weigh all of the existing evidence of record to

determine whether it establishes that the prior decision is

[[Page 3354]]

based on a mistake in a determination of fact.

Finally, proposed paragraph (d) addresses the effect of a

modification decision on previously paid benefits. The Department

believes that a distinction should be made between awards which are

overturned on appeal and awards which are modified. Any payments made

pursuant to an award which is overturned on appeal may be subject to

recoupment. See 20 CFR part 725, subpart H. Such an award has never

become final and its tentative nature is therefore apparent to all

parties. In contrast, the proposed regulation prohibits the recoupment

of benefit payments made pursuant to an award which is thereafter

modified. In the Department's view, claimants whose awards have become

final are entitled to a heightened expectation that they will be able

to keep the monthly benefits that they receive.

20 CFR 725.311. Paragraph (c) of current Sec. 725.311 has created

considerable confusion regarding the due dates for replies and

responses under the regulations in part 725. The Department does not

believe that seven additional days should be added to the time periods

within which to respond to major events in the claims process, such as

the notification of a potentially liable operator, the notice of

initial determination, and the proposed decision and order awarding

benefits. Many of these time periods, none of which is less than 30

days, may be extended for good cause shown. Consequently, the

Department does not believe that the 7-day mail rule is necessary, and

proposes to remove paragraph (c). Additionally, current paragraph (d),

which the Department proposes to redesignate as paragraph (c), is

amended to add the birthday of Martin Luther King, Jr., as a legal

holiday.

Proposed paragraph (d) addresses an issue which has created a split

between the Fourth and Tenth Circuits. In Dominion Coal Corp. v.

Honaker, 33 F.3d 401 (4th Cir. 1994), the Fourth Circuit held that

where an administrative law judge's decision was not served by

certified mail as required by the statute, the time period for

appealing that decision commenced on the date that the aggrieved party

received actual notice of the decision. The court held that ``[w]hen

the record establishes actual notice, the purpose of the statutory

certified mail requirement has been met.'' 33 F.3d at 404. In Big Horn

Coal Co. v. Director, OWCP, 55 F.3d 545 (10th Cir. 1995), the Tenth

Circuit reached a contrary conclusion. Although ``[a]llowing the 30-day

period to start with actual notice would have the salutary effect of

encouraging finality of administrative judgments when the only defect

was the procedural one of failing to use certified mail in serving

th[e] order,'' the court held that there was no provision in the

statute or regulations which permitted it to reach such a result. 55

F.3d at 550. In order to resolve this split, and to advance the policy

considerations cited by both courts, proposed paragraph (d) provides

that, where an adjudication officer has failed to comply with a

statutory or regulatory certified mail requirement, but the party has

received the document, the period for filing any responsive pleading

shall commence as of the date of receipt.

Subpart D--Adjudication Officers; Parties and Representatives

20 CFR 725.360. Technical changes to the cross references in

paragraphs (a)(3) and (c) conform with revisions to Secs. 725.401-.422.

20 CFR 725.362. The proposed amendment to paragraph (a) makes the

regulation conform with the requirements of 5 U.S.C. 500(b), which

allows an attorney to appear on behalf of a party without submitting an

authorization signed by the party. The requirements for representation

by any individual who is not an attorney in good standing with his

state bar remain unchanged. In such circumstances, the Department

requires an authorization signed by the party. Finally, the requirement

that any written declaration or notice identify the case by OWCP number

will allow OWCP to ensure proper and timely filing of the appearance.

20 CFR 725.367. The current regulation governing an operator's

payment of a claimant's attorney fee is taken nearly verbatim from

Sec. 28 of the Longshore and Harbor Workers' Compensation Act, 33

U.S.C. 928, without recognizing significant differences in the

procedure for adjudicating claims under the Black Lung Benefits Act.

Accordingly, its interpretation has caused considerable confusion,

particularly with respect to the date on which an operator's liability

for attorney's fees is triggered. See, e.g., Bethenergy Mines v.

Director, OWCP, 854 F.2d 632 (3d Cir. 1988). In addition, the

regulation originally sought to shield the Trust Fund from the payment

of attorney's fees. A series of court decisions, however, held that the

fund assumes all of the obligations of an operator, including liability

for the claimant's attorney's fees, in cases where no operator can be

held liable for the payment of benefits. Director, OWCP v. Black

Diamond Coal Mining Co., 598 F.2d 945 (5th Cir. 1979); Director, OWCP

v. South East Coal Co., 598 F.2d 1046 (6th Cir. 1979); Republic Steel

Corp. v. U.S. Dept. of Labor, 590 F.2d 77 (3d Cir. 1978).

The proposed regulation seeks to clarify the application of Sec. 28

of the LHWCA to adjudication under the Black Lung Benefits Act. It also

provides a non-exclusive list of specific instances in which an

operator is required to pay attorney's fees and the dates on which the

operator's liability commences. The proposed regulation also recognizes

the Trust Fund's liability for attorney's fees, and makes it

coextensive with that of a liable operator. Specifically, in proposing

paragraph (a)(2), the Department intends to change the result of the

decision of the Benefits Review Board in Yokley v. Director, OWCP, 3

Black Lung Rep. (MB) 1-230 (1981). There, in the absence of a

regulation specifically addressing the fund's liability for attorney's

fees, the Board held that the fund became liable for the payment of

such fees when the district director failed to award benefits within 30

days of the date on which he learned that there was no potentially

liable responsible operator. Yokley, 3 Black Lung Rep. at 1-239. The

Department believes that the event triggering the fund's liability for

attorney's fees should be identical to the event that triggers an

operator's liability, i.e., a denial of the claimant's right to

compensation within the time limits provided by the regulations, which

creates the adversarial relationship requiring employment of an

attorney. See Director, OWCP v. Bivens, 757 F.2d 781, 787 (6th Cir.

1985).

Subpart E--Adjudication of Claims by the District Director

20 CFR 725.405. The proposed change in paragraph (b) recognizes the

Department's current practice of refusing to provide a complete

pulmonary evaluation if the district director concludes, based on the

initial evidence submitted by the claimant, that the claimant never

worked as a miner.

20 CFR 725.406. Section 413(b) of the Act, 30 U.S.C. 923(b),

guarantees each miner the opportunity to have a complete pulmonary

evaluation performed, at no expense to the miner, in order to establish

his entitlement to benefits. Although the existing regulation allows a

claimant to have this evaluation performed by his own physician, it

does not address the consequences of that selection. The adequacy of

the Sec. 413(b) examination and resulting report have been

[[Page 3355]]

frequently litigated. For example, if the report does not address all

of the elements of entitlement, the Department has been required to

remedy the deficiency, see, e.g., Cline v. Director, OWCP, 917 F.2d 9,

11 (8th Cir. 1990), even if the physician who authored the report was

one of the claimant's choosing. Given the Department's proposal to

place limits on the amount of evidence submitted by the parties, and

the importance of the Sec. 413(b) examination, which forms the

evidentiary basis for the district director's initial finding, the

Department wishes to explain in greater detail the manner in which it

will provide the claimant with a complete pulmonary evaluation.

The proposed regulation clarifies the consequences of a claimant's

decision to select an alternate physician or facility to conduct his

complete pulmonary evaluation. First, the claimant must undergo all of

the testing necessary to produce an examination that meets the

requirements of Sec. 718.104. If the physician or facility selected by

the claimant cannot perform all of the tests needed, the Department

will arrange for the claimant to undergo the additional testing before

the miner undergoes his examination.

Second, the Department will determine whether each component of the

evaluation, including the chest X-ray, the pulmonary function study,

and the blood gas study, is in substantial compliance with the

regulatory quality standards. The Department reserves the right to have

each such test reviewed by a medical consultant in order to assist in

this determination. However, the Department will only guarantee

substantial compliance with the quality standards if the testing and

the resulting report are prepared by a Department-selected physician or

facility. It has long been the Department's position that, with the

exception of deficiencies attributable to poor effort on the part of

the miner, the Department has an affirmative obligation to ensure that

each test substantially complies with the part 718 quality standards,

and that the physician provides a documented and reasoned medical

opinion on each element of entitlement. For example, where the miner's

blood gas study is non-conforming, or the physician fails to address

the issue of total disability, or the district director does not find

the physician's report credible, the Department must either seek

additional information from the physician or provide the miner with a

wholly new examination.

The proposed regulation retains this rule with respect to

physicians and facilities selected by the Department. With respect to

physicians and facilities selected by the miner, the regulation

requires the district director, after determining whether the testing

complies with the quality standards, to inform the miner and the

physician or facility of any deficiencies in the report, and allow

sufficient time to correct such deficiencies. If the deficiencies are

not corrected, however, the district director is not obligated to take

any further action. The district director retains the authority to

order another examination by a physician or medical facility selected

by the district director.

Third, proposed Sec. 725.406 specifies that if the miner selects

the physician, that report will count as one of the two reports which a

claimant is entitled to submit under the proposed evidentiary

limitations in Sec. 725.414. If the Department selects the physician,

the claimant may submit two other reports.

Finally, the regulation, in combination with changes to 20 CFR

725.101(a)(6), clarifies the mechanism by which the Department may seek

recoupment of the cost of the Sec. 413(b) examination from a coal mine

operator that has been finally determined to be liable for the

claimant's benefits. Although the current regulation states that the

Department is entitled to reimbursement, it fails to refer specifically

to the most appropriate method for recouping amounts owed the Trust

Fund, 30 U.S.C. 934. Consequently, a clarification is in order.

20 CFR 725.407. Paragraphs (a) and (c) of the current Sec. 725.407

have been moved to Sec. 725.406. Paragraph (b), which allowed claimants

to develop additional evidence prior to the initial finding, has been

eliminated. Instead, the development by the parties of evidence

relevant to the miner's entitlement will be governed by

Secs. 725.413-.414. For an explanation of the proposed text, see the

explanation of changes to Sec. 725.408.

20 CFR 725.408. The current Sec. 725.408 has been eliminated. The

sanctions it provides for a claimant's failure to submit to medical

examinations are contained in proposed Secs. 725.409 and 725.414.

Proposed Secs. 725.407 and 725.408 replace the current regulations

found at 20 CFR 725.412 and 725.413, governing the notification of, and

response by, potential responsible operators. The proposed changes are

part of an effort to deal with difficulties that the Department has

encountered in effectuating Congress's mandate that liability for black

lung benefits be borne by individual coal mine operators to the maximum

extent feasible. See Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th

Cir. 1987). Past difficulties in naming potential responsible operators

have included: (1) the practice among operators of filing ``blanket''

controversions, denying every element of the liability issue, which

generally are not supported by any evidence and are later withdrawn in

substantial part; and (2) the tardy submission of evidence relevant to

operator liability, often only when the claim is pending before the

Office of Administrative Law Judges. These late evidentiary submissions

have increased the likelihood of an incorrect responsible operator

determination by the district director and have led to greater Trust

Fund liability under the Board's decision in Crabtree v. Bethlehem

Steel Corp., 7 Black Lung Rep. 1-354 (1984).

The proposed regulations create a new subclass of operators. Out of

all of the miner's former employers, one or more operators may be

designated as ``potentially liable operators.'' The potentially liable

operator that most recently employed the claimant will generally be the

responsible operator liable for the payment of benefits. The proposed

regulation affords the district director considerable flexibility,

however, in notifying potentially liable operators. If the miner was

most recently employed for a substantial period of time by a fully

insured operator, the district director need notify only that operator

of its potential liability. If the miner's most recent employer had no

insurance and appears to lack other assets, or employed the miner in a

capacity which may not be considered coal mine employment, the district

director may choose to notify more than one potentially liable

operator. Moreover, the district director may notify such operators

seriatim; after evaluating the response from the miner's most recent

employer, or failing to receive any response, the district director may

notify additional operators.

The district director's additional flexibility also imposes greater

responsibility. Unlike the current version of Sec. 725.412(c), the

proposed standards do not allow a district director to name any

additional operators after a case has been referred to the Office of

Administrative Law Judges, in the absence of fraudulent concealment of

the facts relevant to the identification of the responsible operator.

Thus, the Department will essentially assume the risk of not notifying

the ``correct'' responsible operator.

In order to offset this risk, the regulations require potentially

liable operators to produce any exculpatory

[[Page 3356]]

documentary evidence while the case is still pending before the

district director, and thus in sufficient time to allow the district

director to notify additional operators. Each operator must either

admit or deny its status as a potentially liable operator, and support

its denial with specific evidence. It is hoped that this requirement

will increase the Department's ability to correctly identify the

responsible operator liable for the payment of benefits. For a

discussion of the effects of the BLBA and the Administrative Procedure

Act on the Department's ability to impose time limits on the parties'

submission of this evidence, see the explanation of changes to

Sec. 725.414.

20 CFR 725.409. The proposed revisions add a new basis for denying

a claim by reason of abandonment and clarify the procedures to be used

in denying a claim by reason of abandonment. The Department has

interpreted current Sec. 725.409(a)(3) to include failure to appear at

an informal conference, and the Fourth Circuit recently confirmed the

use of that paragraph in Wellmore Coal Co. v. Stiltner, 81 F.3d 490,

497 (4th Cir. 1996). The proposed addition of paragraph (a)(4) will

make that authority explicit. A corresponding change has been made to

Sec. 725.416(c), to provide similar sanctions against a responsible

operator for its unexcused failure to appear.

The proposed changes also clarify the procedures for denying claims

by reason of abandonment. Currently, the regulations allow the claimant

to undertake a variety of actions in response to an initial notice that

the claim will be abandoned. The proposed regulation at paragraph (b)

allows the claimant only two options following the district director's

initial letter: (1) correct the problem identified by the district

director; or (2) allow the district director to deny the claim by

reason of abandonment, and then request a hearing, which will be

limited to the issue of whether the district director properly

initiated abandonment proceedings.

20 CFR 725.410-413. The proposed regulations governing the district

director's initial adjudication of the claim, Secs. 725.410-.413,

differ from the current regulations in several respects. In general,

they provide for a two-track investigation, allowing the district

director to make a preliminary determination of entitlement while

concurrently seeking a coal mine operator that may be held liable for

the payment of the claimant's benefits. It is anticipated that these

two investigations will culminate in a single document, the initial

finding. That document will contain a preliminary finding as to the

claimant's eligibility, based on the complete pulmonary evaluation

developed in accordance with Sec. 413(b) of the Act, and another

finding with respect to the potentially liable responsible operator.

The operator will then be required to accept or contest both findings

within 30 days of the initial finding's issuance.

The most important change in these proposed regulations involves

the claimant's response to a district director's initial finding that

the claimant is not eligible for benefits. Currently, the claimant is

allowed 60 days within which to request a hearing or submit new

evidence. If he submits new evidence, he is given an additional 60 days

within which to request a hearing. Often, however, the Department

receives communications from claimants which do not fit neatly into

either option. The result has been the litigation of various procedural

issues. See, e.g., Adkins v. Director, OWCP, 878 F.2d 151 (4th Cir.

1989); Plesh v. Director, OWCP, 71 F.3d 103 (3d Cir. 1995). The

Department hopes to eliminate such litigation through the proposed

amendment.

The proposed regulations therefore address the problems that the

Department has encountered in applying the current regulations. They

narrow the claimant's options following an initial finding of non-

eligibility to a single choice, but expand the time period within which

this option may be exercised. Within one year of an initial finding of

non-entitlement, the claimant may request further adjudication of the

claim, but he may not request a hearing at this point. If the claimant

fails to take any action during the one-year period following an

initial finding which denies the claim, the denial of the claim will be

considered effective and final as of the date of the initial finding.

The one-year period, which incorporates the modification period of 33

U.S.C. 922 into the initial processing of the claim, reflects the

Department's experience in administering the program. Miners who truly

feel that they are disabled will typically request further processing

of their claim within one month of an initial denial. Others, perhaps

less sure of whether their condition actually meets the Department's

total disability due to pneumoconiosis criteria, may wait to determine

whether their condition worsens. Such miners are entitled to take

advantage of the one-year period in LHWCA Sec. 22, as incorporated by

30 U.S.C. 932(a). The proposed regulation accommodates both types of

claimants, by allowing any response within the one-year period to

trigger further adjudication of the claim.

After receiving responses from both parties (or after expiration of

the time within which a response could be filed), the district director

will proceed in accordance with those responses. Where a claimant's

eligibility and the identity of the liable party are uncontested, the

district director will issue a proposed decision and order. In other

cases, the district director will issue a schedule for the submission

of evidence by the parties. For a discussion of the effects of the BLBA

and the Administrative Procedure Act on the Department's ability to

impose time limits on the parties' submission of evidence, see the

explanation of changes to Sec. 725.414.

20 CFR 725.414. Proposed paragraph 725.414(a) reflects the

Department's determination that the disparity in financial resources

available to claimants, as compared to coal mine operators, has created

an adverse impact on the fair adjudication of claims. Limitations on

the amount of medical evidence which the parties may proffer are

therefore necessary in order to restore some measure of balance to the

process of determining a claimant's entitlement. Accordingly, a new

regulation is proposed which defines the amount, and type, of medical

evidence which each party may proffer in support of its position. We

are specifically seeking comment on the proposed evidentiary

limitations in Sec. 725.414. This regulation also will require the

parties to submit their written medical evidence to the district

director. Generally, once a claim is referred for hearing before an

administrative law judge, the parties may only elicit oral testimony.

The Department now has more than 20 years of experience in

processing and adjudicating black lung benefits claims, and more than

thirteen years of experience in adjudicating claims under the current

program regulations. This long history demonstrates claimants' present

difficulty in establishing their entitlement. Part of that difficulty

can be attributed to changes in medical criteria and eligibility

standards imposed by Congress in 1981. Also important, however, are the

obstacles claimants face when confronted by coal mine operators and

their insurance carriers as adversaries. Such parties possess economic

resources far superior to most claimants, which enable them to generate

medical evidence in such volume that it overwhelms the evidence

supporting entitlement. The proposed changes to the program regulations

governing claims adjudication attempt

[[Page 3357]]

to make more equitable the evidentiary development in black lung

claims.

When Congress amended the BLBA in 1978 to permit the reopening of

many thousands of denied claims, it required the claimants' entitlement

to be judged using liberal interim medical criteria (20 CFR part 727).

30 U.S.C. 902(f)(2). As a result, claims reopened by the amendments

enjoyed a 46.0 percent approval rate at the district level.

(Statistical data reported in ``OWCP FY94 Annual Report to Congress,''

Table B-1). Congress also required the Department, in conjunction with

the National Institute for Occupational Safety and Health (NIOSH), to

develop permanent ``criteria for all appropriate medical tests * * *

which accurately reflect total disability in coal miners * * * .'' 30

U.S.C. 402(f)(1)(D). The Department thereafter promulgated the part 718

regulations; these criteria apply to all claims filed after March 31,

1980. For claims filed between the 1978 amendments and the effective

date of the part 718 regulations, the Department still utilized the

part 727 criteria. Consequently, the district level approval rate, at

34.0 percent, was generous. Once the more rigorous part 718 standards

took effect, however, the approval rate dropped to 10.9 percent for all

claims filed between April 1, 1980 and December 31, 1981, and

adjudicated at the district level.

Congress again amended the BLBA to tighten eligibility requirements

for claims filed after December 31, 1981. Statutory changes which

reduced claims approvals included elimination of favorable entitlement

presumptions and automatic survivor's entitlement upon the death of a

miner whose claim had been awarded. See 20 CFR 725.1(a), (h). The

district level approval rate for claims filed after December 1981 was

5.0 percent as of the end of the 1994 fiscal year. Claimants fared

little better if they pursued their applications beyond the district

level by requesting hearings before the Office of Administrative Law

Judges; the approval rate for such claims during the same period rose

only to 7.6 percent.

The dramatically lower approval rates reflect not only the

statutory changes, but also the increasing percentage of claims in

which coal mine operators or their insurers, rather than the Black Lung

Disability Trust Fund, are potentially liable. Their superior economic

resources simply permit evidentiary development which outweighs the

evidence claimants can procure. The United States Court of Appeals for

the Sixth Circuit has commented on this problem:

This cumulative evidence inquiry also reveals certain policy

flaws in the adjudication of claims that typically operate to

disadvantage Black Lung Benefits Act claimants. First, experts hired

exclusively by either party tend to obfuscate rather than facilitate

a true evaluation of a claimant's case. Second, when one party is

able to hire significantly more experts because it has infinitely

more resources, the truth-seeking function of the administrative

process is skewed and directly undermined. Third, hiring armies of

experts often results in needless expense. If such a system

continues unchecked, justice will not be served, while moneyed

interests thrive.

Woodward v. Director, OWCP, 991 F.2d 314, 321 (6th Cir. 1993). See also

Timothy Cogan, ``Is the Doctor Hostile? Obstructive Impairments and the

Hostility Rule in Federal Black Lung Claims,'' 97 W. Va. L. Rev. 1003,

1004 fn. 3 (1995). As a possible solution, the Sixth Circuit suggested

that the administrative law judge prevail upon the parties to accept

negotiated evidentiary limitations and share the cost of hiring

physicians.

The Department believes that the concerns expressed by the Court in

Woodward are valid. Rather than address those concerns through an ad

hoc resort to each adjudicator's discretion, however, a ``bright-line''

rule of uniform application is preferable. Such a rule imposes a known

standard of conduct on the parties from the outset, which enables them

to plan their litigation strategies accordingly. The proposed

regulation therefore limits each side to two complete pulmonary

examinations and one ``interpretive'' review (x-ray rereadings,

clinical test validations, etc.) of each of its opponent's diagnostic

studies and examinations. This amount of evidence should be sufficient

to enable each party to advance or defend its position while satisfying

the demands of ``due process.'' The Commonwealth of Kentucky has

imposed similar limitations on the evidence submitted in connection

with claims for workers' compensation. Kentucky Revised Statutes

Annotated Sec. 342.033 (Michie/Bobbs-Merrill 1993). Limiting evidence

will also have the salutary effect of reducing the costs associated

with litigating claims and the amount of repetitive evidence which

often burdens the record without shedding light on the medical issues.

The proposed regulation also fundamentally restructures the claims

adjudication process by focusing evidentiary development at the

district director level. The regulation requires all parties to develop

their documentary medical evidence and submit it to the district

director for consideration. In general, once a claim is referred for a

hearing before the Office of Administrative Law Judges, no further

documentary medical evidence will be admitted into the record. Only if

there are extraordinary circumstances or the pulmonary evaluation

obtained by the Department is insufficient or incomplete may the

Administrative Law Judge admit additional documentary medical evidence

into the record. The Administrative Law Judge will conduct the hearing

and permit the parties to elicit testimony from witnesses, including

any physician whose report is in the record. The judge will base his

decision on the evidentiary record developed by the district director

and the hearing testimony.

The foregoing procedure departs from current practice by severely

limiting the admission of new documentary medical evidence while a

claim is pending before an Administrative Law Judge. Parties presently

often reserve the active development of medical evidence until a claim

is scheduled for hearing. Permitting additional evidentiary development

before the Administrative Law Judge was logical when significant delays

occurred between the district director's decision and the hearing

before the Administrative Law Judge. Given the progressive nature of

pneumoconiosis, additional evidence was usually necessary for the

Administrative Law Judge to receive an accurate understanding of the

miner's health. Such delays no longer occur in a statistically

significant percentage of claims. Consequently, the practical need for

permitting evidentiary development at the hearing stage has

disappeared.

Litigation strategy, as well as delays, has also encouraged

operators to defer active participation and evidentiary development

until claims were referred for hearing. Over time, this practice has

significantly eroded the ability of the Department to conduct a

thorough and meaningful initial adjudication of each claim at the

district level. Because delay is no longer a legitimate consideration,

the proposed regulation requires full operator participation before the

district director.

The Department believes that the fair, efficient and expeditious

adjudication of claims is a desirable objective which can be promoted

by limiting the amount of medical evidence developed and encouraging

all parties to participate actively at the earliest stages of the

process. The Secretary clearly has the statutory authority to issue

regulations which achieve this goal. The BLBA provides that ``[t]he

Secretary of Labor * * * [is] authorized to issue such regulations as

[he] deems appropriate to

[[Page 3358]]

carry out the provisions of this title.'' 30 U.S.C. 936(a). The

legislative history of this broad grant of authority ``establishes that

Congress intended to provide the Secretary adequate flexibility to

assure the payment of benefits to eligible persons.'' Director, OWCP v.

National Mines Corp., 554 F.2d 1267, 1274 (4th Cir. 1977) (footnote

omitted). The Secretary has already issued several regulations

(discussed below) which address the submission or exclusion of

evidence. This proposed regulation involves the same matter, and is a

permissible exercise of the Secretary's statutory authority.

Moreover, Part C of the BLBA assimilates various provisions of Part

B of the BLBA and the Social Security Act by means of a circuitous

series of incorporations by reference. The BLBA states that ``[t]he

amendments made by the Black Lung Benefits Act of 1972, * * * to Part B

of [title IV] shall, to the extent appropriate, also apply to part C of

[title IV].'' 30 U.S.C. 940. Section 923(b), in turn, incorporates

various provisions of the Social Security Act into Part B. The 1972

amendments revised Sec. 923(b) to make Sec. 405 of the Social Security

Act, 42 U.S.C. 405, applicable to Part B. Consequently, Sec. 940 makes

Sec. 405 of the Social Security Act applicable to Part C via

Sec. 923(b). Among the incorporated SSA provisions is Sec. 405(a),

which states as follows:

The Secretary shall have full power and authority to make rules

and regulations and to establish procedures, not inconsistent with

the provisions of this subchapter, which are necessary or

appropriate to carry out such provisions, and shall adopt reasonable

and proper rules and regulations to regulate and provide for the

nature and extent of the proofs and evidence and the method of

taking and furnishing the same in order to establish the right to

benefits hereunder.

42 U.S.C. 405(a) (1995 supp.). Section 405(a) contains ``exceptionally

broad'' authority to prescribe standards for ``proofs and evidence'' in

disability claims under the SSA. Heckler v. Campbell, 461 U.S. 458, 466

(1983); see also Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).

Under the aegis of this authority, the Supreme Court has upheld the

Social Security Administration's use of broad medico-vocational

guidelines to determine whether a claimant is disabled; the guidelines

provided an acceptable substitute for resolving classes of issues

instead of requiring individualized findings in each case concerning

the claimant's ability to perform work in the national economy.

Heckler, 461 U.S. at 467. Pursuant to Sec. 405(a), the SSA has also

validly promulgated a regulation prescribing criteria for weighing

medical reports from treating physicians (20 CFR 404.1527). Schisler v.

Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). The proposed regulation is

designed to regulate the ``nature and extent of the proofs and evidence

and the method of taking and furnishing'' such evidence for

adjudicating black lung benefits claims. Its promulgation therefore

comes within the authority conferred on the Secretary by Congress

through the incorporation of 42 U.S.C. 405(a) into the BLBA.

Both individually and together, Secs. 936(a) and 405(a) authorize

the Secretary to regulate evidentiary development under the BLBA.

Whether the proposed procedures represent a valid exercise of that

authority depends on their consistency with the BLBA and the

Administrative Procedure Act, 5 U.S.C. 551 et seq. (the APA). The BLBA

is the organic statute; the regulation must therefore be consistent

with its enabling authority. Hearings under the BLBA must be conducted

in accordance with the APA. 33 U.S.C. 919(d), as incorporated by 30

U.S.C. 932(a); 20 CFR 725.452(a). Neither statute prohibits the

Department from imposing reasonable limitations on evidence.

Section 923(b) of the BLBA provides that ``all relevant evidence

shall be considered.'' 30 U.S.C. 923(b). Like Sec. 405 of the Social

Security Act, this provision applies to Part C via the incorporation

mechanism of Sec. 940; Congress added the ``all relevant evidence''

language to Sec. 923 in the 1972 amendments. Section 940, however,

contains an important qualifier: the enumerated Part B amendments apply

only ``to the extent appropriate.'' This phrase confers on the

Secretary the explicit authority to determine which aspects of Part B

should be adopted, and to what extent. The proposed regulation

represents the Secretary's judgment as to the appropriate extent to

which ``all relevant evidence'' should be admitted for consideration by

the factfinder. (The Department has not adopted all of the SSA

provisions incorporated by the 1972 amendments and enumerated in

Sec. 923(b). For example, Sec. 405(j) contains an elaborate and

detailed procedure for certifying benefits payments to a representative

payee rather than the beneficiary; the Department's regulations are

less comprehensive than the statutory provisions. Compare 42 U.S.C.

405(j) with 20 CFR 725.510, 725.511. Furthermore, the Department has

not promulgated regulations which implement the SSA attorney fee or

criminal penalties provisions. See 42 U.S.C. 406, 408.)

Read literally and without regard to the remainder of the

provision, the ``all relevant evidence'' language arguably requires the

admission for consideration of any evidence which could be relevant to

the adjudication of a claim. The phrase appears less than clear,

however, when the remainder of Sec. 923(b) is considered. A literal

reading infringes on Sec. 923(b)'s incorporation of broad agency

authority from the Social Security Act to regulate ``the nature and

extent of the proofs and evidence and the method of taking and

furnishing the same,'' discussed earlier. Such a reading would

proscribe the agency from implementing procedures which impose any

evidentiary controls unrelated to the sole criterion of relevance.

Section 923(b) itself contains an important limitation on the

consideration of potentially ``relevant'' evidence by the adjudicator.

For claims filed before January 1, 1982, the Department is required to

accept a positive x-ray reading which meets certain requirements. For

any claim, Sec. 923(b) requires the Department to accept the results of

an autopsy as to the presence and stage of pneumoconiosis unless fraud

or accuracy are implicated. Consequently, the Department is precluded

from submitting (or, as the adjudicator, considering) relevant evidence

which contradicts the x-rays or autopsies subject to Sec. 923(b). Thus,

the actual scope of the phrase ``all relevant evidence'' is unclear

when it is considered in relation to other parts of Sec. 923(b).

If a literal reading of a statutory provision's language does not

provide an unambiguous explanation of its intended operation, then

resort to its legislative history is warranted. See Burlington No. R.

Co. v. Okla. Tax Comm'n, 481 U.S. 454, 461 (1987). Congress added the

``all relevant evidence'' language when it amended the BLBA in 1972.

The amendment represented a reaction to the Social Security

Administration's heavy reliance on negative x-rays in denying claims,

and its failure to develop other evidence which might support

entitlement. See S. Rep. No. 92-743, 92nd Cong., 2nd Sess., at pp. 13-

16 (1972), reprinted in ``Legislative History of the Federal Coal Mine

Health and Safety Act of 1969,'' Part II--Appendix, at pp. 1958-1961.

``Every available medical tool should be used to assist a miner in

successfully pursuing his claim for benefits.'' Id. at 15. Thus, the

historical context of the language demonstrates that it is a statutory

exhortation for the agency to explore every avenue which may prove the

claimant's entitlement. Given the policy behind the provision, its

apparent breadth should not act as a guarantor for

[[Page 3359]]

the admission of any quantity of evidence an operator might obtain

which refutes a claimant's entitlement.

Under the current program regulations, Sec. 923(b) does not

prohibit the exclusion of certain evidence despite its relevance. For

example, an operator may not present evidence which conflicts with

findings made by the district director if the operator fails to make

certain responses in a timely manner. 20 CFR 725.413(b)(3) (response to

notice of claim); 725.414(b) (response to initial finding). Any

documentary evidence which is withheld from the district director must

be excluded from all future proceedings unless submission is requested

by another party or ``extraordinary circumstances'' exist. 20 CFR

725.414(e)(1), 725.456(d). Any party's failure to submit evidence

within specified time frames, failure to provide proper notification of

an expert witness' hearing appearance, or failure to appear at a

hearing without permission, are also grounds for limiting or excluding

evidence. 20 CFR 725.456(b)(2), 725.457(a), 725.461(b). None of

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