Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits
Notice of proposed rulemaking; request for comments.
CFR Part: "20 CFR Part 725"
RIN Number: "RIN 1240-AA10"
Citation: "80 FR 23743"
Page Number: "23743"
"Proposed Rules"
SUMMARY: The Department is proposing revisions to the Black Lung Benefits Act (BLBA) regulations to address several procedural issues that have arisen in claims processing and adjudications. To protect a miner's health and promote accurate benefit determinations, the proposed rule would require parties to disclose all medical information developed in connection with a claim for benefits. The proposed rule also would clarify that a liable coal mine operator is obligated to pay benefits during post-award modification proceedings and that a supplemental report from a physician is considered merely a continuation of the physician's earlier report for purposes of the evidence-limiting rules.
DATES: The Department invites written comments on the proposed regulations from interested parties. Written comments must be received by
ADDRESSES: You may submit written comments, identified by RIN number 1240-AA10, by any of the following methods. To facilitate receipt and processing of comments, OWCP encourages interested parties to submit their comments electronically.
* Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions on the Web site for submitting comments.
* Facsimile: (202) 693-1395 (this is not a toll-free number). Only comments of ten or fewer pages, including a Fax cover sheet and attachments, if any, will be accepted by Fax.
* Regular Mail: Submit comments on paper, disk, or CD-ROM to the
* Hand Delivery/Courier: Submit comments on paper, disk, or CD-ROM to
Instructions: All submissions received must include the agency name and the Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: The BLBA, 30 U.S.C. 901-944, provides for the payment of benefits to coal miners and certain of their dependent survivors on account of total disability or death due to coal workers' pneumoconiosis. 30 U.S.C. 901(a); Usery v.
II. Summary of the Proposed Rule
A. General Provisions
The Department is proposing several general revisions to advance the goals set forth in Executive Order 13563. 76 FR 3821 (
B. Section-by-Section Explanation
20 CFR 725.310 Modification of awards and denials.
Section 725.310 implements section 22 of the
While modification is a broad remedy available to responsible operators as well as claimants, a mere request for modification does not terminate an operator's obligation to comply with the terms of a prior award, or otherwise undermine the effectiveness, finality, or enforceability of a prior award. See Vincent v.
The plain language of the Act and its implementing regulations support this conclusion. An operator is required to pay benefits "after an effective order requiring the payment of benefits"--generally an uncontested award by a district director or any award by an administrative law judge, the
Despite this clear authority, some operators obligated to pay benefits to claimants (and to repay the
First, it prevents claimants from timely receiving all the benefits to which they are entitled. If an operator fails to comply with the terms of an effective award, the
The Act currently provides two mechanisms for claimants to enforce these liabilities. Section 21(d) of the Longshore Act, 33 U.S.C. 921(d), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.604, provides for the enforcement of final awards. And section 18(a) of the Longshore Act, 33 U.S.C. 918(a), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.605, does the same for effective awards. These remedies are, however, imperfect. Even if the previous award is final, section 21(d) still requires the claimant to file an enforcement action in federal district court to secure compliance with the award, a substantial barrier for unrepresented claimants. And even for represented claimants, the process can be a source of substantial delay. For example, the district court's order enforcing a final award under section 21(d) in Nowlin v.
Second, the practice improperly shifts financial burdens from the responsible operator to the
This intent is undermined if an operator does not pay benefits or reimburse the
Section 725.502's requirement that operators pay benefits owed under the terms of effective (as well as final) awards is designed to place these overpayment recovery risks where they properly belong: On the operator who, if successful, has the same overpayment recoupment rights as the
To deal with this recurring problem, the Department proposes adding new paragraph (e) to
Proposed paragraph (e)(3) integrates the requirements of paragraph (e)(1) into the overall modification procedures outlined by
Proposed paragraph (e)(4) clarifies that an operator has a continuing obligation to comply with the requirements of effective awards during all stages of a modification proceeding. The Department believes that imposing an affirmative obligation on operators to continually update the administrative law judge, Board, or court currently adjudicating its modification request about every continuing payment required by previous awards would be unduly burdensome on both operators and adjudicators. When an operator's non-compliance is brought to an adjudication officer's attention, however, the adjudicator must issue an order to show cause why the operator's modification petition should not be denied. Because the issue will be the operator's compliance with paragraph (e)(1) at the time of the order rather than at the time it requested modification, evidence relevant to this issue will be admissible even in the absence of extraordinary circumstances. In addition, to avoid the burden of a minor default resulting in the denial of modification, paragraph (e)(4) gives the operator an opportunity to cure any default identified by the Director or claimant before the modification petition is denied.
Proposed paragraph (e)(5) clarifies that the denial of a modification request on the ground that the operator has not complied with its obligations under previous effective awards will not prejudice the operator's right to make additional modification requests in that same claim in the future. At the time of that future request, of course, the operator must satisfy all modification requirements, including
Finally, proposed paragraph (e)(6) makes these requirements applicable only to modification requests filed on or after the effective date of the final rule. Making the rule applicable prospectively avoids any administrative difficulties that could arise from applying the rule's requirements to pending modification requests.
20 CFR 725.413 Disclosure of Medical Information
The Department proposes a new provision that requires the parties to disclose all medical information developed in connection with a claim. Currently, parties to a claim are free to develop medical information to the extent their resources allow and then select from that information those pieces they wish to submit into evidence, subject to the evidentiary limitations set out in
Experience has demonstrated that miners may be harmed if they do not have access to all information about their health, including information that is not submitted for the record. Claimants who do not have legal representation are particularly disadvantaged because generally they are unfamiliar with the formal discovery process and thus rarely obtain undisclosed information. Moreover, benefit decisions based on incomplete medical information are less accurate. These results are contrary to the clear intent of the statute.
One recent case, Fox v.
Mr. Fox left the mines in 2006 at the age of 56 because his pulmonary capacity had diminished to the point he could no longer work. He filed a second claim for benefits that same year. This time he was represented by counsel, who successfully obtained discovery of the medical information that the responsible operator had developed in connection with
Had Mr. Fox received the responsible operator's pathologists' opinions in 2000 when they were authored, he could have sought appropriate treatment for his advanced pneumoconiosis five or six years sooner than he did. He also could have made an informed decision as to whether he should continue in coal mine employment, where he was exposed to additional coal-mine dust. Or, he might have transferred to a position in a less-dusty area of the mine. See 30 U.S.C. 943(b). Finally, if the pathology reports the operator obtained had been available,
Mr. Fox's case highlights the longstanding problem claimants face in obtaining a full picture of the miner's health from testifying and non-testifying medical experts as well as examining and non-examining physicians. See, e.g., Lawyer Disciplinary Board v. Smoot, 716 SE.2d 491 (
Ensuring that a miner has access to information about his or her health is consistent with the primary tenet of the
By requiring disclosure, the rule also protects parties who do not have legal representation. Virtually without exception, coal mine operators are represented by attorneys in claims heard by administrative law judges. But claimants cannot always obtain legal representation. The Department estimates that approximately 23 percent of claimants appear before administrative law judges without any representation, and some of those claimants who have representation are represented by lay persons. Unrepresented claimants and lay representatives are generally unfamiliar with technical discovery procedures and thus do not pursue any information not voluntarily disclosed by the operator. And even when represented, not all attorneys use available discovery tools. Thus, making full disclosure mandatory will put all parties on equal footing, regardless of representation and regardless of whether they request disclosure of all medical information developed in connection with a claim.
Finally, allowing parties fuller access to medical information may lead to better, more accurate decisions on claims. Elevating correctness over technical formalities is a fundamental tenant of the BLBA. Subject to regulations of the Secretary, the statute gives the Department explicit authority to depart from technical rules: adjudicators "shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure . . . but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties." 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a). See also 20 CFR 725.455(b). This statutory provision evidences
An incorporated provision of the Social Security Act provides additional authority for proposed
The proposed rule sets out both requirements for the disclosure of medical information and sanctions that may be imposed on parties that do not comply with the rule. Proposed
Proposed paragraph (a)(1) addresses examining physicians' opinions and includes all findings made by an examining physician in the definition of "medical information." An examining physician's opinion may disclose incidental physical conditions beyond a miner's respiratory or pulmonary systems that need attention. Giving miners full access to this data is consistent with the Act's and the Department's intent to protect the miner's health. Proposed paragraphs (a)(2) through (a)(4) include all other physicians' opinions, tests, procedures and related documentation in "medical information," but only to the extent they address the miner's respiratory or pulmonary condition.
Proposed SEC 725.413(b) sets out the duty to disclose medical information about the miner and a time frame for such disclosure. The duty to disclose arises when either a party or a party's agent receives medical information. By including a "party's agent," the proposed rule requires disclosure of medical information received by any individual or business entity that develops or screens medical information for the party or the party's attorney. Thus, a party may not avoid disclosure by having medical opinions and testing results filtered through a third-party agent. The time frame for disclosure is generally 30 days after receipt of the medical information. Within that time period, the disclosing party must send a copy of the medical information obtained to all other parties of record. In the event the claim is already scheduled for hearing by an administrative law judge when the medical information is received, the proposed rule requires the disclosing party to send the information no later than 20 days prior to the hearing. This provision correlates with current
Proposed SEC 725.413(c) provides sanctions that an adjudication officer may impose on a party that does not comply with its obligation to disclose the medical information described in proposed
Finally, proposed
20 CFR 725.414 Development of Evidence
(a) Section 725.414 imposes limitations on the quantity of medical evidence that each party may submit in a black lung claim. The Department proposed the limitations, in part, to ensure that eligibility determinations are based on the quality, not the quantity, of evidence submitted and to reduce litigation costs. 62 FR 3338 (
The Director's position flows from the language of the current rules, which constrains the evidence a physician may review in a written report based only on its admissibility. Current
Supplemental reports are a reasonable and cost-effective means of providing medical opinion evidence given the practical realities of federal black lung litigation. Even with the evidence-limiting rules, a miner who files a black lung claim may undergo up to five sets of examinations and testing "spread . . . out over time." 65 FR 79992 (
(b) For cases in which the
The Trust Fund is liable for the payment of benefits if no operator can be identified as liable or if the operator identified as liable fails to pay benefits owed. See 26 U.S.C. 9501(d)(1); 20 CFR 725.522. As a result, the Director's inability to develop medical evidence in responsible operator cases imperils the
The first choice forecloses any possibility of recovery from the operator in the case of an award because the award would run against the
Proposed SEC 725.414(a)(3)(iii) allows the Director the option of developing evidence in such cases. This revision would not prejudice claimants because the Director would be bound by the same evidence-limiting rules as the operator. In a miner's claim, the medical evidence developed under
20 CFR 725.601 Enforcement Generally
Current SEC 725.601 sets out the Department's policy regarding enforcing the liabilities imposed by Part 725. The last sentence of current paragraph (b) refers to "payments in addition to compensation (see
20 CFR 725.607 Payments in Addition to Compensation
The Department proposes two revisions to current
The majority of courts to consider the question have agreed with the Director's view that the 20% payment required by section 14(f) is itself "compensation" rather than a penalty. See Newport News Shipbuilding and Dry Dock Co. v. Brown, 376 F.3d 245, 251 (4th Cir. 2004) ("[I]t is plain that an award for late payment under [section] 14(f) is compensation."); Tahara v.
Current SEC 725.607 does not consistently reflect the majority rule or the Director's position. Paragraph (b) describes section 14(f) payments as "additional compensation." But both the title of the section and paragraph (c) describe them as payments "in addition to compensation." The latter formulation could be read to suggest that 14(f) payments are something other than compensation. While the "in addition to compensation" formulation has not caused any problems in the administration of
III. Statutory Authority
Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration and enforcement of the Act.
IV. Information Collection Requirements (Subject to the Paperwork Reduction Act) Imposed Under the Proposed Rule
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations, 5 CFR part 1320, require that the Department consider the impact of paperwork and other information collection burdens imposed on the public. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the
As discussed earlier in the preamble, proposed
The Department has estimated the number of responses and burdens as follows for this information collection:
Title of Collection: Disclosure of Medical Information
OMB Control Number: 1240-0NEW [OWCP will supply before publication]
Total Estimated Number of Responses: 4,074
Total Estimated Annual Time Burden: 679 hours
Total Estimated Annual Cost Burden:
In addition to having an opportunity to file comments with the Department, the PRA provides that an interested party may file comments on the information collection requirements in a proposed rule directly with OMB at the
OMB and the Department are particularly interested in comments that:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility, and clarity of the information to be collected; and
* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
V. Executive Orders 12866 and 13563 (Regulatory Planning and Review)
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Department has considered the proposed rule with these principles in mind and has determined that the regulated community will benefit from this regulation. The discussion below sets out the rule's anticipated economic impact and discusses non-economic factors favoring adoption of the proposal. OMB has reviewed this rule prior to publication in accordance with these Executive Orders.
A. Economic Considerations
The proposed rule includes only one provision that arguably could have an economic impact on parties to black lung claims or others: proposed
Even if the proposed rule were construed to impose a new obligation on operators, the Department believes any additional costs involved would not be burdensome for several reasons. First, if an operator's modification request is denied, the operator must reimburse the
B. Other Considerations
The Department has also considered other benefits and burdens that would result from the proposed rules apart from any potential monetary impact. As discussed in the Section-by-Section analysis, proposed
Proposed SEC 725.413, which requires the parties to disclose all medical information they develop, will help protect miners' health and assist in reaching more accurate benefits determinations. These concerns far outweigh any minimal additional administrative burden this rule would place on the parties as a result of the mandatory exchange of this information. Moreover, the Department does not believe this rule will have an extremely broad impact. In many (and perhaps the majority) of cases, the Department believes, and has been informed by the public, that the parties already exchange all of the medical information in their possession as part of their evidentiary submissions.
Finally, the proposed revisions to
VI. Regulatory Flexibility Act and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking)
The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C.
The Department has determined that a regulatory flexibility analysis under the RFA is not required for this rulemaking. While many coal mine operators are small entities within the meaning of the RFA, See 77 FR 19471-72 (
Based on these facts, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. Thus, a regulatory flexibility analysis is not required. The Department invites comments from members of the public who believe the regulations will have a significant economic impact on a substantial number of small coal mine operators. The Department has provided the Chief Counsel for Advocacy of the
VII. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
VIII. Executive Order 13132 (Federalism)
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have "federalism implications." E.O. 13132, 64 FR 43255 (
IX. Executive Order 12988 (Civil Justice Reform)
The proposed rule meets the applicable standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. See 61 FR 4729 (
X. Congressional Review Act
The proposed rule is not a "major rule" as defined in the Congressional Review Act, 5 U.S.C.
Administrative practice and procedure, Black lung benefits, Claims, Health care, Reporting and recordkeeping requirements, Vocational rehabilitation, Workers' compensation.
For the reasons set forth in the preamble, the
PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED
1. The authority citation for part 725 continues to read as follows:
Authority: 5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C.
2. In
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(b) Modification proceedings must be conducted in accordance with the provisions of this part as appropriate, except that the claimant and the operator, or group of operators or the fund, as appropriate, are each entitled to submit no more than one additional chest X-ray interpretation, one additional pulmonary function test, one additional arterial blood gas study, and one additional medical report in support of its affirmative case along with such rebuttal evidence and additional statements as are authorized by paragraphs (a)(2)(ii) and (a)(3)(ii) of
(c) At the conclusion of modification proceedings before the district director, the district director may issue a proposed decision and order (
(d) An order issued following the conclusion of modification proceedings may terminate, continue, reinstate, increase or decrease benefit payments or award benefits. Such order must not affect any benefits previously paid, except that an order increasing the amount of benefits payable based on a finding of a mistake in a determination of fact may be made effective on the date from which benefits were determined payable by the terms of an earlier award. In the case of an award which is decreased, no payment made in excess of the decreased rate prior to the date upon which the party requested reconsideration under paragraph (a) of this section will be subject to collection or offset under subpart H of this part, provided the claimant is without fault as defined by
(e)(1) Any modification request by an operator must be denied unless the operator proves that at the time of the request, the operator has complied with all of the obligations imposed by all awards in the claim that are currently effective as defined by
(i) Pay all benefits owed to the claimant (including retroactive benefits under
(ii) Reimburse the
(2) The requirements of paragraph (e)(1) of this section are inapplicable to any benefits owed pursuant to an effective but non-final order if the payment of such benefits has been stayed by the
(3) Except as provided by paragraph (e)(4) of this section, the operator must submit all documentary evidence pertaining to its compliance with the requirements of paragraph (e)(1) of this section to the district director concurrently with its request for modification. The claimant is also entitled to submit any relevant evidence to the district director. Absent extraordinary circumstances, no documentary evidence pertaining to the operator's compliance with the requirements of paragraph (e)(1) at the time of the modification request will be admitted into the hearing record or otherwise considered at any later stage of the proceeding.
(4) The requirements imposed by paragraph (e)(1) of this section are continuing in nature. If at any time during the modification proceedings the operator fails to meet obligations imposed by all effective awards in the claim, the adjudication officer must issue an order to show cause why the operator's modification request should not be denied and afford all parties time to respond to such order. Responses may include evidence pertaining to the operator's continued compliance with the requirements of paragraph (e)(1). If, after the time for response has expired, the adjudication officer determines that the operator is not meeting its obligations, the adjudication officer must deny the operator's modification request.
(5) The denial of a request for modification under this section will not bar any future modification request by the operator, so long as the operator satisfies the requirements of paragraph (e)(1) of this section with each future modification petition.
(6) The provisions of this paragraph (e) apply to all modification requests filed on or after the effective date of this rule.
3. Add
(a) For purposes of this section, medical information is any medical data about the miner that a party develops in connection with a claim for benefits, including medical data developed with any prior claim that has not been disclosed previously to the other parties. Medical information includes, but is not limited to--
(1) Any examining physician's written or testimonial assessment of the miner, including the examiner's findings, diagnoses, conclusions, and the results of any tests;
(2) Any other physician's written or testimonial assessment of the miner's respiratory or pulmonary condition;
(3) The results of any test or procedure related to the miner's respiratory or pulmonary condition, including any information relevant to the test or procedure's administration; and
(4) Any physician's or other medical professional's interpretation of the results of any test or procedure related to the miner's respiratory or pulmonary condition.
(b) Each party must disclose medical information the party or the party's agent receives by sending a complete copy of the information to all other parties in the claim within 30 days after receipt. If the information is received after the claim is already scheduled for hearing before an administrative law judge, the disclosure must be made at least 20 days before the scheduled hearing is held (See SEC 725.456(b)).
(c) At the request of any party or on his or her own motion, an adjudication officer may impose sanctions on any party or his or her representative who fails to timely disclose medical information in compliance with this section.
(1) Sanctions must be appropriate to the circumstances and may only be imposed after giving the party an opportunity to demonstrate good cause why disclosure was not made and sanctions are not warranted. In determining an appropriate sanction, the adjudication officer must consider--
(i) Whether the sanction should be mitigated because the party was not represented by an attorney when the information should have been disclosed; and
(ii) Whether the party should not be sanctioned because the failure to disclose was attributable solely to the party's attorney.
(2) Sanctions may include, but are not limited to--
(i) Drawing an adverse inference against the non-disclosing party on the facts relevant to the disclosure;
(ii) Limiting the non-disclosing party's claims, defenses or right to introduce evidence;
(iii) Dismissing the claim proceeding if the non-disclosing party is the claimant and no payments prior to final adjudication have been made to the claimant unless the Director agrees to the dismissal in writing (See SEC 725.465(d));
(iv) Rendering a default decision against the non-disclosing party;
(v) Disqualifying the non-disclosing party's attorney from further participation in the claim proceedings; and
(vi) Relieving a claimant who files a subsequent claim from the impact of
(d) This rule applies to--
(1) All claims filed after the effective date of this rule;
(2) Pending claims not yet adjudicated by an administrative law judge, except that medical information received prior to the effective date of this rule and not previously disclosed must be provided to the other parties within 60 days of the effective date of this rule; and
(3) Pending claims already adjudicated by an administrative law judge where--
(i) The administrative law judge reopens the record for receipt of additional evidence in response to a timely reconsideration motion (See SEC 725.479(b)) or after remand by the
(ii) A party requests modification of the award or denial of benefits (See SEC 725.310(a)).
4. In
(a) Medical evidence. (1) For purposes of this section, a medical report is a physician's written assessment of the miner's respiratory or pulmonary condition. A medical report may be prepared by a physician who examined the miner and/or reviewed the available admissible evidence. Supplemental medical reports prepared by the same physician must be considered part of the physician's original medical report. A physician's written assessment of a single objective test, such as a chest X-ray or a pulmonary function test, is not a medical report for purposes of this section.
(2)(i) The claimant is entitled to submit, in support of his affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports. Any chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph (a)(2)(i) or paragraph (a)(4) of this section.
(ii) The claimant is entitled to submit, in rebuttal of the case presented by the party opposing entitlement, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the designated responsible operator or the fund, as appropriate, under paragraph (a)(3)(i) or (iii) of this section and by the Director pursuant to
(3)(i) The responsible operator designated pursuant to
(A) To provide the Office or the designated responsible operator with a complete statement of his or her medical history and/or to authorize access to his or her medical records; or
(B) To submit to an evaluation or test requested by the district director or the designated responsible operator, the miner's claim may be denied by reason of abandonment. (See SEC 725.409).
(ii) The responsible operator is entitled to submit, in rebuttal of the case presented by the claimant, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the claimant under paragraph (a)(2)(i) of this section and by the Director pursuant to
(iii) In a case in which the district director has not identified any potentially liable operators, or has dismissed all potentially liable operators under
(4) Notwithstanding the limitations in paragraphs (a)(2) and (3) of this section, any record of a miner's hospitalization for a respiratory or pulmonary or related disease, or medical treatment for a respiratory or pulmonary or related disease, may be received into evidence.
(5) A copy of any documentary evidence submitted by a party must be served on all other parties to the claim. If the claimant is not represented by an attorney, the district director must mail a copy of all documentary evidence submitted by the claimant to all other parties to the claim. Following the development and submission of affirmative medical evidence, the parties may submit rebuttal evidence in accordance with the schedule issued by the district director.
* * * * *
(c) Testimony. A physician who prepared a medical report admitted under this section may testify with respect to the claim at any formal hearing conducted in accordance with subpart F of this part, or by deposition. If a party has submitted fewer than two medical reports as part of that party's affirmative case under this section, a physician who did not prepare a medical report may testify in lieu of such a medical report. The testimony of such a physician will be considered a medical report for purposes of the limitations provided by this section. A party may offer the testimony of no more than two physicians under the provisions of this section unless the adjudication officer finds good cause under paragraph (b)(1) of
(d) Except to the extent permitted by SUBSEC 725.456 and 725.310(b), the limitations set forth in this section apply to all proceedings conducted with respect to a claim, and no documentary evidence pertaining to liability may be admitted in any further proceeding conducted with respect to a claim unless it is submitted to the district director in accordance with this section.
5. In
* * * * *
(b) It is the policy and intent of the Department to vigorously enforce the provisions of this part through the use of the remedies provided by the Act. Accordingly, if an operator refuses to pay benefits with respect to a claim for which the operator has been adjudicated liable, the Director may invoke and execute the lien on the property of the operator as described in
(c) In certain instances the remedies provided by the Act are concurrent; that is, more than one remedy might be appropriate in any given case. In such a case, the Director may select the remedy or remedies appropriate for the enforcement action. In making this selection, the Director shall consider the best interests of the claimant as well as those of the fund.
6. Revise
(a) If any benefits payable under the terms of an award by a district director (
(b) If, on account of an operator's or other employer's failure to pay benefits as provided in paragraph (a) of this section, benefit payments are made by the fund, the eligible claimant will nevertheless be entitled to receive such additional compensation to which he or she may be eligible under paragraph (a), with respect to all amounts paid by the fund on behalf of such operator or other employer.
(c) The fund may not be held liable for payments of additional compensation under any circumstances.
Signed at
Director,
[FR Doc. 2015-09573 Filed 4-28-15;
BILLING CODE 4510-CR-P
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