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November 19, 2004         DOL Home > OALJ Home > Black Lung   
BLACK LUNG REGULATIONS -- 2000 AMENDMENTS

Employment Standards Administration, Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 20 C.F.R. Parts 718, 722, 725, 726, 727, 65 Fed. Reg. 79919 (Dec. 20, 2000)

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SUMMARY:
The following is a short summary of highlights of the new regulations excerpted from the preamble. This summary is not intended to cover all new features of the amendments. For more detail, see the full version of ESA's Summary of Noteworthy Provisions.

District Director Claims Processing
Simplified administrative procedures for the adjudication of claims pending before OWCP. Eliminates use of initial findings and alters rules governing informal conferences.

OWCP will issue only one decisional document at the conclusion of district director's processing of a claim: in most cases a proposed decision and order, Sec. 725.418.

If an informal conference is scheduled, it must be held within 90 days of conclusion of evidentiary development period unless a party requests that it be postponed for good cause; district director may schedule a conference only if all the parties to a claim are represented.

Proposed decision and order gives rise to 30-day period for requesting hearing before the Office of Administrative Law Judges and, if no such hearing is requested, to the one-year period for filing a request for modification, Sec. 725.419.

Proposed decision and order will contain district director's final designation of responsible operator liable for the payment of benefits, and dismissal of all other potentially liable operators that had previously received notice of the claim.

Evidentiary Development

Documentary Evidence
Designated responsible operator may submit documentary medical evidence either to district director or to the ALJ up to 20 days before an ALJ hearing, or even thereafter, if good cause is shown. Documentary medical evidence may only be submitted up to numerical limitations outlined in Secs. 725.414(a), however, absent a showing of good cause, Sec. 725.456(b). Thus, each side in a claim may submit

two chest x-ray interpretations;

the results of two pulmonary function tests;

two arterial blood gas studies;

two medical reports as its affirmative case; and

one autopsy report and one report of each biospsy; one autopsy and one report of biospsy in rebuttal; where original autopsy or biopsy evidence has been subject of rebuttal, party that submitted original report may submit an additional statement from physician who authored report.

In addition, each party may submit one piece of evidence in rebuttal of each piece of evidence submitted by the opposing party. Where rebuttal evidence has been submitted, party that originally proffered the evidence which has been the subject of rebuttal may submit one additional statement to rehabilitate its evidence.

Documentary evidence as to operator liability must be submitted to district director, absent showing of exceptional circumstances, Secs. 725.408(b)(2), 725.414(d), 725.456(b). No limit on amount of such evidence that may be submitted.

Witnesses
No person shall be permitted to testify as a witness at a hearing, pursuant to deposition or by interrogatory unless that person meets the requirements of Sec. 725.414(c). Thus, in the case of a witness offering testimony relevant to the liability of a potentially liable operator or the identification of a responsible operator, the witness must have been identified while the claim was pending before the district director in the absence of extraordinary circumstances, Sec. 725.457(c)(1).

In the case of a physician offering testimony relevant to the physical condition of the miner, the physician must have prepared a medical report submitted into evidence. Alternatively, the party offering the physician's testimony must have submitted fewer than two medical reports into evidence in which case the physician's testimony shall be considered a medical report for the purpose of the evidentiary limitations in Sec. 725.414(c). A party may offer the testimony of more than two physicians only upon a finding of good cause, Sec. 725.457(c)(2).

Treating Physicians' Opinions
Sec. 718.104(d) altered to provide that, in appropriate cases, relationship between miner and treating physician may constitute substantial evidence in support of adjudication officer's decision to give that physician's opinion controlling weight.

Definition of Pneumoconiosis and Establishing Total Disability Due to Pneumoconiosis
In the preamble to Sec. 718.201, the Department explains that the term ``legal pneumoconiosis'' does not create a new medical diagnosis, but rather reflects the statute's definition of the disease as ``a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.'' 30 U.S.C. 902(b). The preamble also explains in detail the Department's decision to include chronic obstructive pulmonary disease in the definition of pneumoconiosis to the extent it is shown to have arisen from coal mine employment.

To clarify its original intent concerning the extent to which pneumoconiosis must contribute to a miner's total disability, the Department has amended the language of Secs. 718.204(c)(1)(i) and 718.204(c)(1)(ii) by adding the words ``material'' and ``materially.'' Thus, a miner has established that his pneumoconiosis is a substantially contributing cause of his disability if it either has a material adverse effect on his respiratory or pulmonary condition or materially worsens a totally disabling respiratory or pulmonary impairment caused by a disease or exposure unrelated to coal mine dust. Evidence that pneumoconiosis made only a negligible, inconsequential or insignificant contribution to the miner's disability is insufficient to establish total disability due to pneumoconiosis.

Use of the flow-volume loop in pulmonary function testing (spirometry testing) is now mandatory.

Attorneys' Fees
Department will seek to encourage early attorney involvement by providing a different starting point for employer and Fund attorney fee liability. Although the creation of an adversarial relationship and the ultimately successful prosecution of a claim are still necessary to trigger employer or Fund liability, once that liability is triggered, a reasonable fee will be awarded for all necessary work performed, even if it was performed before the creation of the adversarial relationship.

True Doubt
Department has not adopted a ``true doubt'' rule in these regulations. The ``true doubt'' rule was an evidentiary weighing principle under which an issue was resolved in favor of the claimant if the probative evidence for and against the claimant was in equipoise.

EFFECTIVE DATE: The general effective date for the new regulations is January 19, 2001. Section 725.2(c) addresses the applicability of the new regulations to pending claims:

(c) The provisions of this part reflect revisions that became effective on January 19, 2001. This part applies to all claims filed, and all benefits payments made, after January 19, 2001. With the exception of the following sections, this part shall also apply to the adjudication of claims that were pending on January 19, 2001: Secs. 725.309, 725.310, 725.351, 725.360, 725.367, 725.406, 725.407, 725.408, 725.409, 725.410, 725.411, 725.412, 725.414, 725.415, 725.416, 725.417, 725.418, 725.421(b), 725.423, 725.454, 725.456, 725.457, 725.458, 725.459, 725.465, 725.491, 725.492, 725.493, 725.494, 725.495, 725.547. The version of those sections set forth in 20 CFR, parts 500 to end, edition revised as of April 1, 1999, apply to the adjudications of claims that were pending on January 19, 2001. For purposes of construing the provisions of this section, a claim shall be considered pending on January 19, 2001 if it was not finally denied more than one year prior to that date.


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