1. Dually qualified physicians

2. Board-certified and board-eligible radiologists

3. C-readers and B-readers

4. B-readers and A-readers

5. B-readers and board-certified radiologists

6. Credentials unknown

7. Taking official notice of credentials

IV. Pulmonary function (ventilatory) studies

A. Resolving height discrepancies

B. Qualifying test results

C. Determination of reliability or conformity

1. Cooperation and comprehension

2. Requirement of three tracings

3. Testing conducted during hospitalization

V. Blood gas studies

A. Qualifying test results

B. Determination of reliability or conformity

1. Validation by medical opinion

2. Test conducted during hospitalization

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

VI. Medical reports

A. Well-documented, well-reasoned opinion defined

B. Undocumented and unreasoned opinion of little or no probative value

C. Physicians' qualifications

1. Treating or examining physician

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

2. Non-examining or consultative physician

3. Criminal conviction of the physician

D. Equivocal or vague conclusions

E. Silent opinion

F. Internally inconsistent reports

G. Better supported by objective medical data

H. Reliance upon nonqualifying or nonconforming testing

I. Extensive medical data versus limited data

J. Physical limitations contained in medical report

K. Death certificates

L. Determinations by other agencies

M. Medical literature and studies

VII. Autopsy reports

A. Principles of weighing autopsy evidence

1. Performing the autopsy versus review of the slides

2. Opinion of autopsy prosector versus review of findings

B. Quality standards

A. An original claim or a claim filed pursuant to 20 C.F.R. § 725.309

1. In support of claimant's position

2. In support of responsible operator's or fund's position

B. On modification

C. Hospitalization and treatment records unaffected

D. "Good cause" standard for admitting evidence over limitations

E. Referral of claim by district director; not required to include all medical evidence

II. Responsible operator designation

A. Limitations on testimony

B. Evidence related to responsible operator excluded absent "extraordinary circumstances"

C. Dismissal by administrative law judge not permitted

D. Remand by administrative law judge not permitted

E. On modification

F. Upon filing a subsequent claim under § 725.309

III. Witness testimony

A. Limitations on expert medical testimony

B. At the hearing

C. By deposition

D. Notice to opposing party

E. Expert witness fees, apportionment of

A. Generally

B. December 2000 regulatory amendments, effective dates of

II. Types of claims

A. The living miner's claim (BLA)

B. The survivor's claim (BLA)

C. Medical Benefits Only (BMO)

D. Medical Treatment Dispute (BTD)

E. Medical Interest (BMI)

F. Overpayment (BLO)

G. Black Lung Civil Money Penalty (BCP)

A. The statute

B. Hearing required prior to dismissal

C. Commencement of the three-year period

II. Coal miner; defined under Parts 718 and 727

A. Generally

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

B. The three-prong test

1. Status of the coal

2. Function of the miner

a. Construction workers

b. Consumer coal handler

c. Federal mine inspector

d. Integral to the process

e. Inventory work

f. Transportation workers

3. Situs of the work performed

B.C. Coal dust versus coal mine dust

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

III. Length of coal mine employment

A. Prior to applicability of December 2000 regulations

1. Burden of production/persuasion upon claimant

2. Any reasonable method of computation acceptable

3. The 125-day rule

B. After applicability of December 2000 regulations

C. Documentation supporting length of coal mine employment

1. Social Security earnings records

2. Affidavits

3. Coal mine employment form completed by the miner

4. Claimant's testimony

5. Other evidence

D. Periods included in computing length of coal mine employment

1. Vacation time

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

2. Injury or sick time

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

3. Seasonal employment

E. Periods not included in computing length of coal mine employment

1. Seniority time

2. Voluntary strike time

II. "Operator" defined

III. Most recent operator liable

A. Prior to applicability of December 2000 regulations

B. After applicability of December 2000 regulations

IV. Identifying the proper operator; burden of production/persuasion

A. Director's burden to investigate and assess liability

B. Proceeding against the potential operator at every stage of litigation

V. Requirements for responsible operator designation

A. Powers of supervision and control

1. Independent contractors

2. Franchised equipment dealer

3. Lessors

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

4. The parent company

5. The self-employed miner

6. Successor liability

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

7. The federal government

8. Partnerships

9. A "reorganized" company

10. State government

B. Situs of the work performed

C. Miner's disability or death arose out of coal mine employment with the operator

1. Presumption that the miner was regularly and continuously exposed to coal dust

2. Presumption that the miner's pneumoconiosis arose out of coal mine employment with the operator

D. Operation of a coal mine after June 30, 1973

E. Employment after December 31, 1969

F. Cumulative employment of one year or more

1. Intermittent employment

2. The 125 day rule

3. Employment for less than 125 days

G. Ability to pay

1. Prior to applicability of December 2000 regulations

a. Employer's burden to establish inability to pay

b. The federal government

c. Period of bond coverage

d. Mine owner insured notwithstanding failure to pay premium

e. Bankruptcy of the employer

2. After applicability of December 2000 regulations

H. Insurance carrier as a named party

I. Liability of corporate officers

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

J. Due process rights of the employer violated; Trust Fund held liable for payment of benefits

1. Lost records

2. Delay in notice of claim

II. Elements of entitlement

III. The existence of pneumoconiosis

A. "Pneumoconiosis" defined

B. Chest roentgenogram evidence

C. Autopsy or biopsy

D. Rebuttable presumptions regarding the existence of pneumoconiosis

1. Fifteen years or more of coal mine employment

a. "Substantially similar" working conditions

b. Medical evidence

c. Rebuttal of the presumption

2. The "many years" presumption

a. "Many years" defined

b. Severe lung impairment required

E. Other relevant evidence

1. Elements to be considered

2. Totally disabling respiratory condition

IV. Etiology of the pneumoconiosis

V. Total disability and its etiology

A. "Total disability" defined

1. Methods of establishing total disability

2. Rebuttal

B. Pneumoconiosis is the impairment involved

1. Complicated pneumoconiosis

2. Multiple disabling conditions

C. Establishing total disability; medical evidence listed in the Appendix

D. Total disability established; factors not in the Appendix

E. Other relevant evidence

1. Burden of proof

2. Use of lay testimony

3. Pulmonary function studies

4. Physical performance tests

F. Irrebuttable presumption; complicated pneumoconiosis

1. Conflicting evidence

2. Autopsy evidence

VI. Applicability of § 410.490 and Parts 727 and 718

II. Invocation of presumption of total disability due to pneumoconiosis

III. Etiology of the pneumoconiosis

IV. Rebuttal of the presumption of total disability due to pneumoconiosis

V. Applicability of Parts 410, 727, and 718

II. The interim presumptions

A. Generally

B. "Pneumoconiosis" defined

1. Evidence relevant to finding pneumoconiosis

a. Anthracosis and anthracotic pigment

b. Asthma, asthmatic bronchitis, or emphysema

c. Blood gas studies

d. Chronic obstructive pulmonary disease

e. Pulmonary function studies

C. Invocation of the rebuttable presumption of total disability due to pneumoconiosis

1. Chest roentgenogram evidence

a. Generally

b. The "Tobias rule" and rereading chest x-rays

2. An autopsy or biopsy

3. Pulmonary function (ventilatory) studies

4. Blood gas studies

5. Reasoned medical opinions

6. Lay evidence

III. Rebuttal of the interim presumption of total disability due to pneumoconiosis

A. Generally

B. Exertional requirements; claimant's burden

2. Specific medical opinion of severity of impairment required

3. Medical assessment versus subjective narration of limitations

4. Exertional requirements verses physical limitations

5. No respiratory or pulmonary impairment supports rebuttal

1. Miner is engaged in usual coal mine work or comparable and gainful work

a. Generally

b. "Usual coal mine work" under subsection (b)(1) defined

c. "Comparable and gainful work" under subsection (b)(1) defined

2. Miner is able to perform usual coal mine work or comparable and gainful work

a. Standard for subsection (b)(2) rebuttal

b. "Usual coal mine work" under subsection (b)(2) defined

c. "Comparable and gainful work" under subsection (b)(2) defined

3. Total disability did not arise in whole or in part out of coal mine employment

a. Evolution of the "rule out" standard

b. Standard for establishing subsection (b)(3) rebuttal

c. Specific principles of weighing evidence under § 727.203(b)(3)

d. A finding of "no impairment"

4. The miner does not suffer from pneumoconiosis

a. Rebuttal under subsection (b)(4) precluded if invocation under subsection (a)(1)

b. Specific principles of weighing evidence under subsection (b)(4)

IV. Applicability of Parts 410 and 718 and § 410.490

II. Elements of entitlement

III. The existence of pneumoconiosis

A. "Pneumoconiosis" defined

1. Prior to applicability of December 2000 regulations
Legal pneumoconiosis versus clinical pneumoconiosis

2. After applicability of December 2000 regulations

3. Evidence relevant to finding pneumoconiosis

a. Anthracosis and anthracotic pigment

b. Asthma, asthmatic bronchitis, or emphysema

c. Blood gas studies

d. Chronic obstructive pulmonary disease
Pulmonary function studies

f. Stipulations

B. Regulatory methods of establishing pneumoconiosis

1. Chest roentgenogram (x-ray) evidence

a. Negative readings

b. The "Tobias rule" and rereading chest x-rays

2. Autopsy or biopsy

3. Evidence under all sections must be weighed together

C. Presumptions related to the existence of pneumoconiosis

1. Complicated pneumoconiosis

2. Fifteen years of coal mine employment

3. Presumption in survivors' claims

D. Reasoned medical opinions

IV. Etiology of the pneumoconiosis

A. Ten years or more coal mine employment

B. Less than ten years of coal mine employment

V. Establishing total disability

A. Prior to applicability of December 2000 regulations

B. After applicability of December 2000 regulations

C. Methods of demonstrating total disability

1. Pulmonary function (ventilatory) studies

2. Blood gas studies

3. Cor pulmonale

4. Reasoned medical opinions

a. Burden of proof

b. Nonrespiratory, nonpulmonary impairments

5. Lay testimony

VI. Etiology of total disability

A. "Contributing cause" standard

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

B. Blood gas and ventilatory studies irrelevant

C. Weighing medical opinion evidence

VII. Applicability of Parts 410 and 727 and § 410.490

II. Qualifying for benefits

A. Surviving spouse and surviving divorced spouse

1. Spouse -- relationship to the miner

2. Spouse -- dependency upon the miner

3. Spouse and divorced spouse -- share of benefits

B. Child

1. Child -- relationship to the miner

2. Child -- dependency upon the miner

a. Disabled child

b. Disabled child -- remarried

C. Parent, brother, or sister

D. Multiple survivors

III. Entitlement to survivors' benefits

A. Surviving spouse or surviving divorced spouse

1. Spouse -- period of entitlement

2. Spouse -- subsequent remarriage

3. Predeceasing the miner

B. Child

1. Child -- period of entitlement

2. After applicability of December 2000 regulations

IV. Automatic entitlement to survivor's benefits

II. The regulation

III. Presumptions available to certain survivors

A. Ten years or more coal mine employment

B. Ten years or more coal mine employment; death from respirable disease

C. Fifteen or more years of coal mine employment

D. Complicated pneumoconiosis

II. Invocation of the interim presumptions

III. Rebuttal of the interim presumptions

II. The regulation

III. The interim presumptions

A. Methods of invocation

B. Lay evidence

C. Rebuttal of the interim presumptions

IV. Presumption of survivor's entitlement to benefits -- 25 years or more of coal mine employment

II. Standards of entitlement

A. Survivors' claims filed prior to January 1, 1982 where the miner is entitled to benefits as a result of a claim filed prior to January 1, 1982

B. Survivors' claims filed prior to January 1, 1982 where there is no miner's claim or miner not found entitled to benefits as a result of claim filed prior to January 1, 1982

1. Death due to pneumoconiosis

2. Lay evidence

C. Survivors' claims filed on or after January 1, 1982 where the miner is entitled to benefits as a result of a claim filed prior to January 1, 1982

D. Survivors' claims filed on or after January 1, 1982 where there is no miner's claim or miner not found entitled to benefits as a result of claim filed prior to January 1, 1982

1. Death due to pneumoconiosis

2. "Hastening death" standard

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

3. Traumatic injury or principal cause of death is an unrelated medical condition

III. Presumptions available under Part 718

A. Ten years or more of coal mine employment

B. Fifteen years or more of coal mine employment

C. Twenty-five years or more of coal mine employment

D. Complicated pneumoconiosis

A. Claims filed before July 1, 1973 (Part B claims)

B. Claims filed on or after July 1, 1973 (Part C claims)

1. Onset of disability

2. Effect of continuing employment

3. Petitions for modification

C. Survivors' claims

II. Augmentation of benefits

A. Spouse

B. Divorced spouse

C. Child

D. Special rules for Part B claims

III. Interest on overdue benefits

A. Assessed against employer, not Trust Fund

B. Date of accrual

C. Payments made by the Trust Fund

D. The interest rate

IV. Termination of benefits

II. Jurisdiction

A. Federal Claims Collection Act

B. Six year statute of limitations inapplicable

III. Waiver of recovery of overpayment

A. Entitlement to a hearing

B. "Without fault" defined

1. Honest mistake

2. Erroneous information

a. Prior to applicability of December 20, 2000 regulations

b. After applicability of December 20, 2000 regulations

C. "Defeat the purpose of title IV of the Act" defined

D. "Against equity and good conscience" defined

V. Amount of the overpayment

VI. Recovery of the overpayment

A. Entitlement to a hearing

B. Repayment amount and schedule

C. Offset of a state benefit award

1. The "up-front" method; attorney fees

2. Survivors' benefits

D. The Federal Employees Compensation Act

II. Entitlement to a hearing and scope of consideration

III. Eligibility for medical benefits

IV. Liability for medical benefits

A. Reimbursement

B. Challenge to liability

C. Interest on reimbursable costs

V. Onset of medical benefits

II. Entitlement to a hearing and scope of consideration

III. Treatment related to the miner's black lung condition

A. Burden of persuasion/production

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

B. Treatment of respiratory and non-respiratory conditions

II. Jurisdiction

II. The regulation

III. Determination of eligibility for transfer by the district director

A. Burden of persuasion/production

B. Claim must be "finally denied"

C. Claim must be approved under Part 727

1. Generally

2. Filing the election card

IV. Separate consideration of survivors' claims

V. Merger of claims to support transfer

A. Merger of multiple claims under § 725.309

B. Merger of § 410.490 and Part 727 claims and transfer

C. No merger of survivor's and miner's claims

II. Procedural issues

A. One year time limitation

B. Multiple modification petitions

C. Informal modification petition

1. Survivor's claim may qualify as modification petition

2. Submission of work evaluation questionnaires

D. Exclusion of evidence on modification

E. No "absolute right" to medical re-examination on modification

III. Commencement with the district director

A. The Benefits Review Board

B. Circuit courts of appeals

IV. Review by the administrative law judge

A. De novo review

B. Entitlement to a hearing

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

C. Proper review of the record

1. "Change in conditions"

a. Defined

b. Scope of evidential review

c. Submission of new evidence required

d. Insufficient evidence submitted

2. "Mistake in a determination of fact"

a. Defined to include challenge to ultimate issues of entitlement

b. No allegation of mistake necessary

c. Scope of evidentiary review

d. Correcting misidentified carrier

e. Survivor's claim

3. New operator named on modification

a. Prior to applicability of December 2000 regulations

b. After applicability of December 2000 regulations

V. Onset date for the payment of benefits

VI. Review of entire claim without threshold modification analysis; harmless error

A. Refiling more than one year after prior denial

B. Survivors

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

C. Filing requirements are more formal than for modification

D. Lack of continued exposure to coal dust does not preclude filing of duplicate claim

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

II. Providing a complete pulmonary evaluation by DOL

III. Entitlement to a hearing

A. Before an administrative law judge

B. Survivor's claim--no hearing

IV. Proper review of the record

A. Prior to applicability of December 2000 regulations--"material change in conditions"

B. After applicability of December 2000 regulations

1. Establishing an element of entitlement previously denied

2. Responsible operator designation

V. Onset date under § 725.309

VI. Affect of the three-year statute of limitations

A. Holding vacated

B. Effect of remand

C. Law of the case

D. Changes in the law

E. Effect of multiple motions for reconsideration

F. Interlocutory appeals

II. Clerical corrections

III. Res judicata and collateral estoppel

A. Generally

B. Collateral estoppel

1. Elements

2. Examples of application

a. Losing on an issue, prevailing overall

b. Parts 718 and 727

c. State agency determinations

d. Social Security Administration determinations

e. Multiple fee petitions

f. Miner's and survivor's claims -- existence of pneumoconiosis

g. Responsible operator

A. 10 days to respond

B. Dismissal of a claim, defense or party

C. Caption

II. Remand to the district director

A. District director's obligation to provide complete examination

B. The employer or Director, OWCP withdraws controversion
Sample Order

C. Calculation of liability for medical treatment

D. Inability to locate the claimant or abandonment of the claim
Sample Order:

E. Consolidation of claims
Sample Order:
Sample Order:

F. Determination of responsible operator (or motion to dismiss as a party)

1. Prior to applicability of December 2000 regulations
Sample Order:
Sample Order:

2. After applicability of December 2000 regulations

III. Transfer of liability to the Black Lung Disability Trust Fund

IV. Amend controversion form

V. Motions for discovery and proffers of evidence

A. Discovery, generally
Sample Order (deposition of governmental official):

B. Medical examinations

C. Interrogatories

D. Excluding evidence

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

E. Submission of post-hearing evidence/leaving the record open

VI. Reopen the record

A. Submission of additional evidence/change in legal standard

B. On remand
Sample Order:

C. A de novo hearing

VII. Dispose of a claim

A. Withdrawal
Sample Order:

B. Dismissal/abandonment

1. Prior to applicability of December 2000 regulations

2. After applicability of December 2000 regulations

C. Summary judgment

D. Subject matter jurisdiction

VIII. Representation issues

A. Appointment of a representative
Sample Order:

B. Withdrawal as a representative
Sample Order:

C. Sanctions

IX. Miscellaneous procedural motions and orders

A. Extension of time

B. Continuance/postponement of hearing

C. Decision on the record

D. Reconsideration
Sample Order:

E. Petitions for modification
Sample Order (further record development):

F. Organize or to reconstruct the record
Sample Order:

G. Correcting a clerical mistake

A. Notice of appearance

B. Successful prosecution of the claim

1. Successful prosecution, generally

2. Partial success

3. Claimant's interest; adversarial proceeding

a. Prior to applicability of December 2000 regulations-- precontroversion fees not awarded

b. After applicability of December 2000 regulations-- precontroversion fees awarded

4. Fees permitted in overpayment cases

5. Litigation of the fee award

6. No separation of issues

7. Notice of actual liability required

8. Withdrawal of controversion

II. Fee Petitions

1. Determining which services were performed before this Office

2. Sample Boilerplate:

III. Amount of the fee award

A. Generally

1. Factors to be considered
Sample Boilerplate:

2. Enhancement of the fee for delay--proper for employer but not Director, OWCP

B. "Necessary work" defined
Sample Boilerplate:

1. Two-prong test for establishing "necessary work"

2. Examples

a. Research time

b. Contacting a congressional representative

C. Expenses and costs

1. Advising the claimant

2. Clerical costs
Sample Boilerplate:

3. Co-counsel

4. Obtaining medical evidence

5. Travel expenses

6. Witness fees

a. Generally

b. After applicability of December 2000 regulations

D. The hourly rate and hours requested
Sample Boilerplate:

1. Amount of benefits awarded

2. Augmentation or enhancement based upon unique circumstances

a. Extended length of litigation

b. Contingent nature of black lung claims

c. Risk of loss and contingency multipliers

3. Billing method

4. Interest

5. Reasonableness of the requested rate

E. Request for reconsideration

IV. Liability for payment

A. Attorney and lay representative

B. Fees in Part C claims where the miner had no post-1969 coal mine employment

V. Enforcement of supplemental decision and order

VI. Solicitor as counsel to claimant pursuant to 20 C.F.R. § 725.422

VII. Right to counsel

VIII. Qualifications of representative

IX. Costs for pursuit of frivolous claim

Sec. 901. Congressional findings and declaration of purpose; short title
Sec. 902. Definitions
Sec. 903. Field offices
Sec. 904. Information to potential beneficiaries of changes made by Black Lung Benefits Reform Act of 1977
Sec. 921. Regulations and presumptions
Sec. 922. Payment of benefits
Sec. 923. Filing of notice of claim
Sec. 924. Time for filing claims
Sec. 924a. Notification to miners of eligibility for medical services and supplies; period for filing claim
Sec. 925. Procedure for the determination of claims during transition period
Sec. 931. Benefits under State workmen's compensation laws
Sec. 932. Failure to meet workmen's compensation requirements
Sec. 932a. Appointment of qualified individuals to hear and determine claims for benefits
Sec. 933. Duties of operators in States not qualifying under workmen's compensation laws
Sec. 934. "Fund" defined; liability of operators to United States for repayments to fund; procedures applicable; rate of interest
Sec. 934a. Repealed. Pub. L. 97-119, Title I, Sec. 103(b), Dec. 29, 1981, 95 Stat. 1638
Sec. 935. Utilization of services of State and local agencies
Sec. 936. Regulations and reports
Sec. 937. Contracts and grants
Sec. 938. Miners suffering from pneumoconiosis; discrimination prohibited
Sec. 939. Authorization of appropriations
Sec. 940. Applicability of amendments to part B of this subchapter to this part
Sec. 941. Penalty for false statements or representations
Sec. 942. Miner benefit entitlement reports; penalty for failure or refusal to file
Sec. 943. Black lung insurance program
Sec. 944. Statement of reasons for denial of claim
Sec. 945. Review of claims pending on, or denied on or before, March 1, 1978
Sec. 951. Studies and research
Sec. 951a. Health, Safety, and Mining Technology Research program
Sec. 952. Training and education
Sec. 953. Assistance to States
Sec. 954. Appointment of administrative personnel and inspectors; qualifications; training programs
Sec. 955. State laws
Sec. 956. Applicability of administrative procedure provisions
Sec. 957. Promulgation of regulations
Sec. 958. Annual reports to Congress; contents
Sec. 959. Study of coordination of Federal and State activities; report
Sec. 960. Limitation on issuance of temporary restraining order or preliminary injunction
Sec. 961. Functions transferred under 1977 amendments
Sec. 962. Acceptance of contributions and prosecution of projects; cooperative programs to promote health and safety education and training; use of funds for costs of mine rescue and survival operations