§ 720.101 Scope of this part.

This part sets forth in subparts A and B the rules which will be applied by the Secretary of Labor in the adjudication, under section 415 of part B of title IV of the Act, of claims for pneumoconiosis benefits under such part B which are filed within the period permitted for filing of such claims but after June 30, 1973. Subpart C of this part sets forth the rules under which the Secretary of Labor will provide for payment of benefits to claimants determined to be entitled thereto pursuant to the rules in Subparts A and B of this part.

§ 720.102 Applicability of other parts in this subchapter.

(a) Part 715 of this subchapter contains general provisions, including definitions of terms, which are applicable to the rules set forth in this part.

(b) Part 717 of this subchapter contains the joint regulations of the Secretary of Labor and the Secretary of Health, Education, and Welfare with respect to the place and manner of filing claims under part B of title IV of the Federal Coal Mine Health and Safety Act, as amended, on and after July 1, 1973, for determination by the Secretary of Labor under the adjudicatory process set forth in Subpart B of this part and for payment of benefits as provided in Subpart C of this part and section 415 of the Act.

(c) Part 718 of this subchapter identifies the standards which will be applied by the Secretary of Labor in the adjudicatory process under title IV of the Act as set forth in Subpart B of this part, in making determinations as to whether a coal miner is totally disabled due to pneumoconiosis was totally disabled due to pneumoconiosis at the time of his death, or died from pneumoconiosis.

(d) Part 725 of this chapter contains the rules and regulations by which the Department of Labor shall accept, process, and adjudicate all claims for black lung benefits filed pursuant to Part C of Title IV of the Act after December 31, 1973. All new claims filed after December 31, 1973, shall be filed pursuant to the provisions of Part 725 of this chapter. The provisions of Subpart C of Part 725 relating to "relationship and dependency" and Subpart D of Part 725 of this

chapter relating to the identification and responsibilities of coal mine operators are applicable to this Part 720 as appropriate.

[38 FR 16966, June 27, 1973, as amended at 39 FR 40943, Nov. 22, 1974]

PREPARATION AND FILING CLAIMS
FOR ADJUDICATION

§ 720.108

Type of claims processed pur. suant to this part.

Claims filed after June 30, 1973, but before January 1, 1974, pursuant to the provisions of section 415 of part B of title IV of the Act by living miners only, shall be processed and paid pursuant to this part. All claims filed during such period which are predicated upon the death of a miner shall be filed, processed, and paid pursuant to the provisions contained in Part 410 of this title.

§ 720.109 Treatment of claims previ ously filed with the Social Security Administration.

(a) Approved claims. Claims of living miners filed prior to July 1, 1973, with the Social Security Administration pursuant to the applicable provisions of part B of title IV of the Act shall be processed, adjudicated, and paid by the Administration if such miner's total disability is determined to have begun prior to July 1, 1973. Such miner may file a new claim with the Department pursuant to section 415 of part B of the Act and the regulations contained in Parts 717 and 718 of this subchapter and in this part in order to obtain such additional benefits, including medical benefits, as may become available to such miner beginning January 1, 1974, as provided by part C of title IV of the Act and the regulations promulgated thereunder. In no event shall such subsequent filing or the adjudication by the Department of such subsequent claim result in an alteration, modification, or reduction of the benefits to which such claimant has been determined entitled by the Social Security Administration pursuant to part B of title IV of the Act and Part 410 of this title.

(b) Denied claims. Any miner who has filed a claim for benefits under part B of title IV of the Act prior to July 1. 1973, and whose claim has been finally denied by the Social Security Administration for any reason, may file a new

claim for benefits with the Department and may be awarded benefits, where appropriate, under section 415 of part B of title IV of the Act and the applicable regulations contained in this subchapter.

(c) Claims in process. Any miner who has filed a claim for benefits under part B of title IV of the Act prior to July 1, 1973, and whose claim has not been finally adjudicated by the Social Security Administration, may not be awarded benefits pursuant to this part until such time as the Administration has completed its adjudication of such claim. A claim filed prior to July 1, 1973, shall be considered finally adjudicated at any time after a decision has been rendered in respect of the claimant's entitlement to benefits by a Social Security Administration adjudication officer and no review, reconsideration, reopening, or appeal is being pursued by such claimant. If such review, reconsideration, reopening, or appeal is later pursued by such claimant the Department shall suspend the evidentiary development of the case and hold the final adjudication of the case in abeyance pending the outcome of such review, reconsideration, reopening, or appeal.

(d) Protective filing. Any miner who has filed a "protective writing" with the Social Security Administration prior to July 1, 1973, and who timely perfects such protective writing (see § 410.229 of this title) with the Social Security Administration on some date subsequent to June 30, 1973, shall, as of the date of such perfection of the protective writing, be considered to have filed a protective writing with the Department of Labor (see § 717.117 of this subchapter) for purposes of determining the amount of benefits which may be payable to such claimant under section 415 of part B of title IV of the Act.

§ 720.110 Action to be taken by the Office-general.

When a claim filed pursuant to the provisions of Part 717 of this subchapter has been received by the Office from the filing office it shall be examined together with the supporting evidence transmitted with respect thereto. The Office shall promptly take such further action as may be necessary to assure that sufficient information, medical evidence, and a properly executed claims form have been

submitted and that the claim is complete and ready for adjudication. The claim and supporting documents shall then be filed with a deputy commissioner of the Office. In the following sections the action to be taken in circumstances described therein is set forth in more detail.

§ 720.111 Action to be taken by the Office-miner's claim.

(a) Upon receipt by the Office of Workmen's Compensation Programs of a completed medical report the Office shall tentatively determine whether the medical evidence of record indicates an impairment for which benefits may be paid as determined with reference to standards promulgated by the Secretary of Health, Education, and Welfare as Subpart D of Part 410 of this title (see Part 718 of this subchapter, which incorporates these standards).

(b) If it appears that the claimant may be considered disabled in accordance with the standards published in Subpart D of Part 410 of this title, then the claim shall be prepared for filing and filed with a deputy commissioner as provided in § 720.112 pending the receipt of any additional evidence developed and obtained pursuant to § 717.123 of this subchapter and the notification and reply of any possibly responsible operator as provided in §§ 720.113 and 720.114.

(c) In cases where the medical evidence received by the Office in respect to any claim does not indicate an impairment sufficient under the Department of Health, Education, and Welfare medical criteria (see Part 718 of this subchapter) to support a claim for benefits, the claimant will be advised of the deficiency in his claim and directed by the Office to obtain such additional medical evidence as is appropriate and ordered by the Office. Medical evidence obtained at the direction of the Office shall be paid for by the Office (see § 717.125 of this subchapter).

(d) In the event that the medical evidence received by the Office pursuant to paragraph (c) of this section does not provide credible support for the miner's claim for benefits, any further evidentiary investigations shall be discontinued until further notice. Any additional medical evidence submitted by the claimant shall be obtained at the claimant's expense, and shall not be reimburseable pursuant to § 717.125 of this subchapter.

(e) If a miner whose claim is not considered to be supported by the medical evidence desires a formal hearing on the issue of his disability under the standards set forth in Subpart O of Part 410 of this title, the claim will be made ready for filing with a deputy commissioner and filled with him as provided in § 720.112. Thereafter a hearing or informal conference may be arranged pursuant to Subpart B of this part.

§ 720.112 Filing of claim with deputy

commissioner.

After the Office of Workmen's Compensation Programs has received a completed claim form and completed medical evaluation reports pursuant to § 720.111, the Office will make a tentative determination on the basis of information contained in the claim and any other available information, as to the identity or probable identity of any coal mine operator who may be liable for the payment of black lung benefits to the claimant for any month after December 31, 1973 (see § 725.311 of this title). The claim will then be filed with a deputy commissioner who shall, to the extent appropriate, follow the procedures provided in section 19 of the Longshoremen's and Harbor Workers' Compensation Act (44 Stat. 1424, 33 U.S.C. 919). The date upon which a claim is filed with the deputy commissioner pursuant to this section shall be noted on a form provided for this purpose and such form shall be kept in the office of the deputy commissioner with whom the claim is filed. A copy of the form shall be included in the case file. § 720.113 Notification of operators.

(a) Upon the filing of the claim with a deputy commissioner, each coal mine operator who has been tentatively identified as an operator who may have such liability will be notified of the pending claim, of his possible liability, and of the provisions of section 415(a) (5) of the act. This notification will be made by certified mail, with proof of delivery requested.

(b) Such notification will include a copy of claimant's completed claim form, the medical evaluation report from an authorized physician, and a cover letter informing the operator of the tentative determination of his possible liability for the claim and notice that he may

present evidence relevant to determination of the claim pursuant to the procedures provided for such determination if he so requests within 20 calendar days from the date of mailing of this notice. § 720.114 Operator's response to notifi.

cation.

(a) Within the 20-day period described in § 720.113 a notified coal mine operator shall respond to the notice.

(b) If the operator does not desire to present any evidence relevant to determination of the claim or desires the opportunity to do so, he shall so state either:

(1) By letter mailed to the Office of Workmen's Compensation Programs, U.S. Department of Labor, Washington, D.C. 20211; or

(2) By completing and mailing the form provided for this purpose.

(c) If a notified operator questions his liability for payment of benefits to the claimant for any period after December 31, 1973, he shall so state by transmitting to the Office a completed form setting forth generally his reasons for questioning such liability along with a detailed description of any evidence relied upon to negate his liability.

(d) A notified operator shall be considered a party in interest for purposes of adjudicatory proceedings with respect to the claim (see § 720.220).

(e) If a notified operator raises substantial new and/or unresolved medical issues with respect to the case, the deputy commissioner may, in his discretion, order the claimant to submit to additional medical examination at the expense of the operator or his insurance carrier.

§ 720.120 Final adjudication; no responsible operator.

(a) If after the Office has received all the evidence developed with respect to a claim and there is no identifiable responsible operator, the deputy commissioner shall proceed to a final adjudication of a claim pursuant to Subpart B of this part.

(b) If at this point there is no dispute over the claimant's eligibility and entitlement to benefits, the claim shall be filled with a deputy commissioner pursuant to § 720.112 and the deputy com missioner shall summarily issue his find ings of fact, conclusions of law and order

approving the claim, and commencing the payment of benefits pursuant to §§ 720.401-720.444.

(c) If agreement cannot be reached in cases for which no responsible operator can be found, the case will be filled with a deputy commissioner pursuant to § 720.112. Simultaneously with such filing a recommended decision and order shall be sent to the claimant. Within 20 days from the receipt of such recommended decision and order the claimant shall either agree with the recommended decision and order and so notify the deputy commissioner or notify the deputy commissioner that he is unwilling to agree to one or more of the items contained in such decision and order. Failure to respond within the 20-day period described in this paragraph shall be construed as a refusal to accept the ruling of the deputy commissioner.

(d) If the recommended decision and order is agreed to the deputy commissioner shall proceed to a final adjudication of the case pursuant to § 720.241.

(e) If the claimant is unwilling to agree with the allegations and proposed disposition contained in the recommended decision and order, or if the claimant does not respond within the specified time period the deputy commissioner shall schedule and conduct an informal conference pursuant to §§ 720.230-720.241 or take any other action consistent with the provisions of this part which he deems necessary to achieve a resolution of the case.

(f) Within 60 days from the date upon which a claim for which no potentially responsible operator has been determined has been filed with a deputy commissioner pursuant to § 720.112 in cases for which there has been no prior request for a formal hearing the deputy commissioner assigned the case shall either:

(1) Issue a decision and order in respect of the case pursuant to § 720.241;

or

(2) Declare the case abandoned pursuant to § 720.214; or

(3) Transfer the case to the Chief Administrative Law Judge for the purpose of making the formal hearing procedures described in this part available to the parties in interest.

§ 720.121 Filing claim under State

workmen's compensation law.

(a) A claimant for benefits under this part must file a claim under the applicable State Workmen's compensation law prior to the receipt of benefits under this part except where the filling of a claim under the applicable State workmen's compensation law would clearly be futile.

(b) The Office of Workmen's Compensation Programs shall determine that the filing of such a claim would clearly be futile when:

(1) The period within which such a claim may be filed under such law has expired; or

(2) Pneumoconiosis as defined in § 715.101 (a) (3) of this subchapter is not compensable under such law; or

(3) The maximum amount of compensation or the maximum number of compensation payments allowable under such law has already been paid; or

(4) The claimant does not meet one or more conditions of eligibility for workmen's compensation payments under applicable State law; or

(5) In any other situation the claimant establishes to the satisfaction of the Office that the filing of a claim on account of pneumoconiosis would result as a matter of law in a denial of his claim for compensation under such law.

(c) To be considered to have complied with the requirement for filing a claim under the applicable State workmen's compensation law, a claimant for benefits under this part must diligently prosecute such State claim.

(d) Where, but for the failure to fille a claim under the applicable State workmen's compensation law, an individual's claim for benefits under this part would be allowed, the Office shall notify the individual in writing of the need to file such State claim as a prerequisite to such allowance. Such claim, when filed within 30 days of the date such notice is mailed to the individual, will be considered to have been filed timely.

(e) Where, on the other hand, a claim has not been filed under the applicable State workmen's compensation law, and the Office determines that a claim for benefits under this part would be disallowed even if a State claim were filled, the Office shall make such determination as may be necessary for the adjudi

cation of the individual's claim for benefits under this part.

Subpart B-Adjudicatory Process
GENERAL

§ 720.200 Scope and applicability of this subpart.

Every dispute arising in respect to any claim for benefits or any action taken by an adjudication officer pursuant to this part, and any other issue of fact or law arising out of the Department of Labor's administration of any of the provisions of section 415 of part B of title IV of the Act as amended shall be determined or adjudicated pursuant to the procedures enumerated in this subpart, except as otherwise specifically provided in this part or as elsewhere provided by statute or treaty. Disputes arising out of or in respect to claims for benefits under part C of title IV of the Act filed after December 31, 1973, shall be determined or adjudicated pursuant to procedures contained Part 725 of this subchapter. § 720.201 Adjudication officers.

(a) Who are adjudication officers. The deputy commissioner, the administrative law judge, or the Benefits Review Board before whom a benefit claim proceeding under the Act is pending are the Department's adjudication officers with respect to such claim.

(b) Deputy commissioner. The deputy commissioner is that official of the Office of Workmen's Compensation Programs or his designee authorized to make initial determinations with respect to any case and to insure that any case is developed and processed according to these regulations. He may also under appropriate circumstances conduct conferences, prepare or issue motions and orders as provided in this part, prepare documents for the signatures of the parties in interest in any case, and sign benefits orders in cases for which no formal hearing procedure is required. The deputy commissioner shall not hold formal hearings.

(c) Hearing officer. The hearing officer is that official of the Department of Labor empowered by the Secretary to conduct formal hearings whenever necesary in respect of any claim for black lung benefits filed under this part. Wherever the terms "administrative law judge" or "administrative law judges" appear in this part such terms shall

have the same meaning as the terms “hearing officer” or “hearing officers.”

(d) Benefits Review Board. The Benefits Review Board is that body appointed by the Secretary pursuant to section 21 (b) of the Longshoremen's and Harbor Workers' Compensation Act as amended in 1972, which is empowered to hear and determine finally for the Department of Labor appeals raising a substantial question of law or fact taken by any party in interest from decisions and orders of any duly authorized Department of Labor official with respect to any claim for black lung benefits (see sec. 415(a) of pt. B of title IV of the Act).

[38 FR 16966, June 27, 1973, as amended at 39 FR 40943, Nov. 22, 1974]

(a) Conduct of proceedings. The adjudication officer in any case shall have power to preserve and enforce order during any proceedings for determination or adjudication of entitlement to benefits or liability for benefits payments; to issue subpenas for, to administer oaths to and to compel the attendance and testimony of witnesses, or the production of books, papers, documents and other evidence, or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law which may be necessary to enable him to discharge effectively the duties of his office (Act, secs. 415 and 422 and Longshoremen's Act, secs. 19(d) and 27(a)).

(b) Contumacy. Pursuant to section 19(d) of the Longshoremen's Act as incorporated by sections 415 and 422 of the Act, if any person in proceedings before an adjudication officer disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper or document, or refuses to appear after having been subpenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the adjudication officer shall certify the facts to the Federal district court having jurisdiction in the place in which he is sitting (or to the U.S. District Court for the District of Columbia if he is sitting in the District) which shall there