I. Overview of the Black Lung Benefits Act
- 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)
III. Department of Labor jurisdiction
IV. The applicable regulatory scheme
V. Circuit court jurisdiction
VI. The three-year statute of limitations
- A. The statute
- B. Hearing required prior to dismissal
- C. Commencement of the three-year period
VII. Addresses and phone numbers of Circuit Courts; jurisdiction
I. Overview of the Black Lung Benefits Act
A. Generally
The black lung benefits program was first established under Title IV of the
Federal Coal Mine Health and Safety Act of 1969. The Act was to be implemented by the Social
Security Administration which promulgated regulations at 20 C.F.R. Part 410 to accomplish the
task. The number of claims greatly exceeded Congress' expectations, however, which resulted in
a longer than anticipated processing time with relatively few claimants being awarded benefits.
Therefore, in 1972, Congress passed the Black Lung Benefits Act in an effort to liberalize the
requirements of entitlement and to transfer jurisdiction over such claims to the Department of
Labor. The Act required that the Social Security Administration write interim regulations
governing entitlement to facilitate the transfer of jurisdiction to the Department of Labor. These
interim Social Security regulations are located at 20 C.F.R. § 410.490 (commonly referred
to as a "section 415 transition claim").
Because the interim regulations at § 410.490 were more favorable to
the claimant than the Part 410 regulations, a disparity arose in the adjudication of claims.
Moreover, state compensation programs were providing inadequate benefits to miners who were
totally disabled due to coal workers' pneumoconiosis. See, e.g., O'Brockta v. Eastern Assoc.
Coal Co., 18 B.L.R. 1-71 (1994). For these reasons, Congress amended the Black Lung
Benefits Act in 1977. The Act, as amended, authorized the Department of Labor to write interim
and permanent regulations for all claims. Section 435 of the amended Act provided that the
miner could elect review of all pending or previously denied Part B claims by either the Social
Security Administration or Department of Labor under § 410.490. Moreover, all pending
or previously denied Part C claims would be reviewed automatically by the Department of Labor.
The interim Department of Labor regulations at 20 C.F.R. Part 727 became
effective in March of 1978 and applied to all reviewed claims and to new claims filed until the
completion of the permanent regulations. Two years later, the Department of Labor completed
the promulgation of the permanent regulations at 20 C.F.R. Part 718.
In general, claims filed on or before July 1, 1973 are categorized as
Part B claims and are adjudicated under the regulations at 20 C.F.R. Part 410 and/or
§ 410.490. Claims filed after July 1, 1973 constitute Part C claims and are
adjudicated under Parts 727 and/or 718 of the regulations. For an instructive discussion of the
history of the Black Lung Benefits Act, see the Third Circuit's decision in Elliot Coal Mining
Co. v. Director, OWCP, 17 F.3d 616 (1994). See also Harman Mining Co. v. Layne,
21 B.L.R. 2-507 (4th Cir. 1998) (unpub.).
B. December 2000 regulatory
amendments, effective dates
of
On December 20, 2000, the Department substantively amended certain
regulatory provisions at 20 C.F.R Parts 718 and 725. The Department stated that the
amendments were made in order to simplify administrative procedures before the district
director; to provide new rules on evidentiary development, primarily in regard to the numerical
limitations on medical evidence and in regard to the early identification of a single responsible
operator; and, to clarify the meaning of legal requirements, such as the definition of
pneumoconiosis and the extent to which pneumoconiosis must contribute to the miner's total
disability or death. See Regulations Implementing the Federal Coal Mine Health and
Safety Act of 1969, 65 Fed. Reg. 79,920-79,924 (Dec. 20, 2000).
In regard to the applicability of the amended regulations, the Department
set the effective date as January 19, 2001. Subsection 725.2(c) states the following:
The provisions of this part reflect revisions that became effective on 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:
§§ 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, 725.494, 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.
20 C.F.R. § 725.2(b) (Dec. 20, 2000). In its comments, the Department states that its:
. . . definition of a 'pending claim' is intended to prevent the application of certain
regulatory revisions (those which will be applied only on a prospective basis) to
any claim that was filed before the date on which those revisions take effect. The
definition includes claims pending at various stages of adjudication (i.e.,
before the district directors, the Office of Administrative Law Judges, the Benefits
Review Board, or the federal courts). In addition, some claims that have been
finally denied prior to the effective date of the revisions can be revived by a
subsequent request for modification. For example, a claim may have been finally
denied three months before the rules became effective, and the claimant may file a
request for modification nine months later (or six months after the revised
regulations took effect). The Department does not intend that the revised
regulations that are prospective only (including, for example, the limitation on
evidence) be used to adjudicate such a claim, and has drafted the definition of a
'pending claim' to ensure that result.
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed.
Reg. 79,956 (Dec. 20, 2000).
With regard to the applicability of the substantively changed Part 718
regulations, § 718.2 provides the following:
This part is applicable to the adjudication of all claims filed after March 31, 1980,
and considered by the Secretary of Labor under section 422 of the Act and part
725 of this subchapter. If a claim is subject to the provisions of section 435 of the
Act and subpart C of part 727 of this subchapter (see 20 CFR 725.4(d)) cannot be
approved under that subpart, such claim may be approved, if appropriate, under
the provisions contained in this part. The provisions of this part shall, to the
extent appropriate, be construed together in the adjudication of all claims.
20 C.F.R. § 718.2 (Dec. 20, 2000). In its comments to part 718, the Department stated
the following:
[The Department] rejected recommendations to make all of the revisions either
fully retroactive or entirely prospective. The Department adhered to its earlier
explanation in the initial notice of proposed rulemaking: some regulations could
apply to pending claims because they codify existing agency interpretations of the
BLBA and regulations, while other regulations must be limited to prospective
application because they involve significant changes to the existing program
which could disrupt the parties' interests. The Department therefore declined to
adopt a single approach for all of the revisions.
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed.
Reg. 79,949 (Dec. 20, 2000). In its comments to the amended regulations, the Department
further states the following:
With respect to rules that clarify the Department's interpretation of former
regulations, the Department quoted Pope v. Shalala, 998 F.2d 473 (7th
Cir. 1993), overruled on other grounds, Johnson v. Apfel, 189
F.3d 561, 563 (7th Cir. 1999), for the proposition that an agency's rules of
clarification, in contrast to rules of substantive law, may be given retroactive
effect.
. . .
The Department's rulemaking includes a number of
such clarifications. For example, the revised
versions of §§ 718.201 (definition of
pneumoconiosis), 718.204 (criteria for establishing
total disability due to pneumoconiosis) and 718.205
(criteria for establishing death due to
pneumoconiosis) each represent a consensus of the
federal courts of appeals that have considered how
to interpret former regulations.
. . .
Moreover, none of the appellate decisions with
respect to these regulations represents a change
from prior administrative practice. Thus, a party
litigating a case in which the court applied such an
interpretation would not be entitled to have the case
remanded to allow that party an opportunity to
develop additional evidence.
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed.
Reg. 79,955 (Dec. 20, 2000).
In Nat'l. Mining Ass'n., et al. v. Chao, Civil Action No. 00-3086,
the National Mining Association challenged the validity of a number of the amended regulations
before District Judge Emmet G. Sullivan. During litigation of the case, District Judge Sullivan
issued a Preliminary Injunction Order requiring that all cases be stayed unless the
adjudicator determined that application of the amended regulations would not have an affect on
the outcome of the claim. On August 9, 2001, District Judge Sullivan issued a Memorandum
Opinion and Order lifting the stay and affirming the validity of all challenged regulations.
See Nat'l. Mining Ass'n., et al. v. Chao, Civil Action No. 00-3086 (D. D.C., Aug. 9,
2001).
II. Types of claims
Under the regulations, there are seven types of black lung claims which are
adjudicated by this Office.
A. The living miner's claim
(BLA)
The miner files a claim for benefits during his or her lifetime. This claim
may be pursued by the estate of the miner or a survivor in the event the miner dies before his or
her claim is finally adjudicated. This claim will be assigned a "BLA" case number.
See Chapters 8 - 11.
B. The survivor's claim (BLA)
The widow or dependent of a miner files a claim for benefits after the
miner's death asserting that the miner died due to coal workers' pneumoconiosis or was totally
disabled due to coal workers' pneumoconiosis at the time of death. This claim is considered
independently of a miner's living claim (if one was filed). The survivor's claim will be assigned a
"BLA" case number. See Chapters 12 - 16.
C. Medical Benefits Only (BMO)
When the Act was administered by the Social Security Administration,
miners were only entitled to benefits, and not medical services, which would be required due to
the miner's poor health. The Department of Labor regulations, on the other hand, provide for
automatic entitlement to medical services related to the miner's condition upon an award of
benefits. A special provision was made for those claims which resulted in entitlement to benefits
under the Act as administered by the Social Security Administration whereby the miner could
request reimbursement for medical services. These claims are assigned "BMO" case
numbers. See Chapter 19.
D. Medical Treatment Dispute
(BTD)
In some cases, the employer or Director will allege that certain medical
treatment received by the miner is unnecessary and/or unrelated to his or her black lung
condition. These cases are assigned "BTD" case numbers. See Chapter 20.
E. Medical Interest (BMI)
Often a miner's medical bills will be paid by the Director out of the Trust
Fund while the employer disputes such medical treatment. Once the employer is finally
adjudicated to be liable for such medical treatment, then it is required to reimburse the Trust
Fund with the costs of the medical services plus interest. Medical interest cases generally arise
from a dispute regarding the date of accrual of the interest due. These claims are assigned
"BMI" numbers. But see Chapter 21 (an administrative law judge does not
have authority to award such interest and, if he or she is assigned the case, it should be remanded
to the district director).
F. Overpayment (BLO)
Where the claimant (miner or survivor) received benefits in error or
received more benefits than he or she was entitled to receive, an overpayment is created. The
employer or Director, OWCP may then commence collection of the overpayment amount. The
administrative law judge must decide whether the overpayment is waived and, if not, whether the
claimant is financially capable of repaying the overpayment amount and the repayment schedule.
These claims are assigned "BLO" case numbers. See Chapter 18.
G. Black Lung Civil Money Penalty
(BCP)
If the Responsible Operator fails to obtain insurance coverage for the
payment of benefits as required by law, the Director, OWCP may pursue the corporate officers
personally and/or the assets of the Employer. 20 C.F.R. § 725.620. These claims are
assigned "BCP" case numbers.
III. Department of Labor jurisdiction
Jurisdiction to adjudicate claims under the Black Lung Benefits Act lies
with the Department of Labor pursuant to 30 U.S.C. § 901, et seq. and the
regulations promulgated thereunder at Title 20, Code of Federal Regulations. The procedural
regulations at 29 C.F.R. Part 18 apply to black lung claims, but the evidential rules at
§ 18.101, et seq. do not. 29 C.F.R. § 18.1101.
IV. The applicable regulatory scheme
The applicability of a particular set of regulations is determined primarily
from the date on which a claim was filed. Once you conclude which regulations should be
applicable from the chart below, turn to the appropriate chapter in this Benchbook to
determine whether any other necessary criteria are met.
1994 |
|
| Part 718
1990 | Apply Part 718 to all claims
| filed on or after April 1, 1980.
|
1985 |
|
| April 1, 1980
1980 | |
| |
| § 410.490 | Part 727
1975 | Apply § 410.490 | Apply Part 727
| where the miner | where the miner has
| has less than 10 | more than 10 years of
1970 | years of coal mine | coal mine employment.
1969 | employment. |
0 5 10 15 20 25
Note that, as a point of clarification regarding the chart, for those claims filed during the
effective dates of the Part 727 regulations, but where the miner has demonstrated fewer than ten
years of coal mine employment, then the claim is adjudicated under § 410.490. This is
because the plain language of the Part 727 regulations requires that a miner establish at least ten
years of coal mine employment to be applicable whereas § 410.490 contains no such
restrictions. If, however, the claim is filed during the effective dates of the § 410.490
regulations then, regardless of the number of years of coal mine employment, the claim must be
adjudicated under § 410.490. See Chapters 8 and 9 for the specific effective dates
of these regulations.
V. Circuit court jurisdiction
Generally, appellate jurisdiction with a federal circuit court of appeals lies
in the circuit where the miner last engaged in coal mine employment, regardless of the location
of the responsible operator. Shupe v. Director, OWCP, 12 B.L.R. 1-200, 1-202
(1989)(en banc). In Broyles v. Director, OWCP, 143 F.3d 1348 (10th Cir. 1998), the
Tenth Circuit held that a survivor's appeal must be filed in the jurisdiction where the miner's coal
mine employment, and therefore his harmful exposure to coal dust, occurred. The court stated
that, based upon the record before it, the miner's "only exposure to coal dust occurred in
the Seventh Circuit" such that the case would be transferred to that court for adjudication
pursuant to 28 U.S.C. § 1631. However, it is noteworthy that, in Hon v. Director,
OWCP, 699 F.2d 441 (8th Cir. 1983), the Eighth Circuit held that "black lung disease
is a 'cumulative' injury" which is "caused by extensive exposure to coal dust, and it is
impossible to say that any one exposure 'caused' the miner to get black lung."
Consequently, the court rejected the "'last injurious contact'" rule to state that the
"appeal lies in any circuit in which claimant worked and was exposed to the danger, prior
to manifestation of the injury."
VI. The three-year statute of limitations
[ I(F) ]
A. The statute
The Act, at 30 U.S.C. § 932(f), provides that "[a]ny claim for
benefits by a miner under this section shall be filed within three years after whichever of the
following occurs later": (1) a medical determination of total disability due to
pneumoconiosis; or (2) March 1, 1978. The Secretary of Labor's implementing regulations at 20
C.F.R. § 725.308 are more liberal to the claimant and read, in part, as follows:
(a) A claim for benefits filed under this part by, or on behalf of, a miner shall be filed
within three years after a medical determination of total disability due to pneumoconiosis
which has been communicated to the miner or a person responsible for the care of the
miner, or within three years after the date of enactment of the Black Lung Benefits Act of
1977, whichever is later. There is no time limit on the filing of a claim by the survivor of
a miner.
. . .
(c) There shall be a rebuttable presumption that every claim for benefits is timely
filed. However, except as provided in paragraph (b) of this section, the time
limits in this section are mandatory and may not be waived or tolled except upon a
showing of extraordinary circumstances.
It is noteworthy that the Board has held that the statute of limitations
applies only to the first claim filed, Andryka v. Rochester & Pittsburgh Coal Co., 14
B.L.R. 1-34 (1990), and it is presumed that a claim is timely filed unless the party opposing
entitlement demonstrates it is untimely and there are no "extraordinary
circumstances" under which the limitation period should be tolled, Daugherty v. Johns
Creek Elkhorn Coal Corp., 18 B.L.R. 1-95 (1994). But see Chapter 24 for a
discussion of the applicability of the three year statute of limitations in a multiple claim.
B. Hearing required prior to
dismissal
By unpublished decision, Wright v. Manning Coal Corp., BRB
No. 93-0838 BLA (July 27, 1994)(unpublished), the Board held that an administrative law
judge's dismissal of a claim as untimely was improper even where counsel conceded that the
claimant was informed by a physician that he was totally disabled and that he suffered from coal
workers' pneumoconiosis. In so holding, the Board noted that the record was devoid of evidence
that the miner had "actual physical receipt" of the physician's written opinion.
Moreover, while the physician diagnosed coal workers' pneumoconiosis and total disability, the
Board found that, in his report, he did "not in fact specifically attribute claimant's total
disability to pneumoconiosis arising out of coal mine employment." Thus, the Board
concluded that "inasmuch as a determination regarding rebuttal of the timeliness
presumption is fact-specific and depends on the administrative law judge's credibility
assessments of the documentary and testimonial evidence . . . an administrative law judge should
not dismiss a case without a de novo hearing pursuant to 20 C.F.R.
§ 725.451."
C. Commencement of the three-year
period
The Board, in Adkins v. Donaldson Mine Co., 19 B.L.R. 1-34
(1993), noted that, although the Secretary's regulations contain additional language not found in
the statute, such language is in line with the benevolent purpose of the Act. The Board held that
the requirement of a "medical determination of total disability due to
pneumoconiosis" must be strictly construed such that a determination which merely states
that the claimant has coal workers' pneumoconiosis is insufficient. Moreover, the Board stated
that the clause requiring that the determination be "communicated to the miner"
means that a written report be "actually received" by the miner. If a written report
diagnosing total disability due to pneumoconiosis was actually received by the miner, the
administrative law judge must then determine the level of the miner's comprehension,
i.e. whether he or she was truly aware that there was a "viable claim for
benefits", which requires a finding as to whether the miner could read and, if so, whether
the miner's level of reading enabled him or her to understand the report. See also Cabral v.
Eastern Assoc. Coal Corp., 18 B.L.R. 1-25 (1993) (the opposing party waived reliance on
the affirmative defense of timeliness where it raised the issue before the district director but
withdrew it before the administrative law judge).
VII. Addresses and phone numbers of Circuit Courts;
jurisdiction
In the event you need to know the status of a case, or need other
information from a particular appellate court, the following is a list of the addresses and phone
numbers of the circuit courts as well as the states and/or territories over which they have
jurisdiction:
FIRST CIRCUIT
(Maine, Massachusetts, New
Hampshire, Puerto Rico, Rhode
Island) |
PHOEBE MORSE, CLERK
U.S. Court of Appeals for the First Circuit
One Courthouse Way, Suite 2500
Boston, MA 02210
Tel. (617) 748-9057 |
SECOND
CIRCUIT
(Connecticut, New York,
Vermont) |
ROSEANNE MACKECHNIE, CLERK
U.S. Court of Appeals for the Second
Circuit
40 Foley Square, Rm. 1702
New York, NY 10007
Tel. (212) 857-8700 |
THIRD CIRCUIT
(Delaware, New Jersey,
Pennsylvania, Virgin Islands) |
MARCIA M. WALDON, CLERK
U.S. Court of Appeals for the Third
Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106-1790
Tel. (215) 597-2995 |
FOURTH
CIRCUIT
(Maryland, North Carolina,
South Carolina, Virginia, West
Virginia) |
PATRICIA S. CONNOR, CLERK
U.S. Court of Appeals for the Fourth
Circuit
U.S. Courthouse
1100 East Main St., 5th Fl.
Richmond, VA 23219
Tel. (804) 916-2700 |
FIFTH CIRCUIT
(Louisiana, Mississippi,
Texas) |
CHARLES FULBRUGE, CLERK
U.S. Court of Appeals for the Fifth Circuit
600 Camp Street
New Orleans, LA 70130-3479
Tel. (504) 589-6514 |
SIXTH CIRCUIT
(Kentucky, Michigan, Ohio,
Tennessee) |
LEONARD GREEN, CLERK
U.S. Court of Appeals for the Sixth
Circuit
524 U.S. Courthouse
Cincinnati, OH 45202
Tel. (513) 684-2953 |
SEVENTH
CIRCUIT
(Illinois, Indiana,
Wisconsin) |
GINO AGNELLO, CLERK
U.S. Court of Appeals for the Seventh
Circuit
219 S. Dearborn St., Rm. 2722
Chicago, IL 60604
Tel. (312) 435-5850 |
EIGHTH
CIRCUIT
(Arkansas, Iowa, Minnesota,
Missouri, Nebraska, North Dakota,
South Dakota) |
MICHAEL C. GANS, CLERK
U.S. Court of Appeals for the Eighth
Circuit
111 South 10th Street
Room 24.329
St. Louis, MO 63102
Tel. (314) 244-2400 |
NINTH CIRCUIT
(Alaska, Arizona, California,
Guam, Hawaii, Idaho, Montana,
Nevada, Northern Marianna Islands,
Oregon, Washington) |
CATHY A. CATTERSON, CLERK
U.S. Court of Appeals for the Ninth
Circuit
95 7th Street
San Francisco, CA 94103
Tel. (415) 556-9800 |
TENTH CIRCUIT
(Colorado, Kansas, New Mexico,
Oklahoma, Utah, Wyoming) |
PATRICK FISHER, CLERK
U.S. Court of Appeals for the Tenth
Circuit
The Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257
Tel. (303) 844-3157 |
ELEVENTH
CIRCUIT
(Alabama, Florida,
Georgia) |
THOMAS K. KAHN, CLERK
U.S. Court of Appeals for the Eleventh
Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303
Tel. (404) 335-6100 |
DISTRICT OF
COLUMBIA CIRCUIT
(Washington, D.C.) |
MARK J. LANGER, CLERK
U.S. Court of Appeals for the D.C. Circuit
3rd & Constitution Ave., N.W.
Washington, D.C. 20001
(202) 216-7000 |
FEDERAL CIRCUIT
COURT OF APPEALS
(Nationwide) |
JAN HORBAL, CLERK
U.S. Court of Appeals for the Federal
Circuit
U.S. Courthouse
717 Madison Place, N.W.
Washington, DC 20439
(202) 273-0300 |