(a) Medical evidence.
(1) For purposes of this section, a medical report shall consist of
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. A physician's written assessment of a single objective test,
such as a chest X-ray or a pulmonary function test, shall not be
considered a medical report for purposes of this section.
(2)(i) The claimant shall be 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
or paragraph (a)(4) of this section.
(ii) The claimant shall be 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 (a)(3)(iii) of this section and by the Director
pursuant to Sec. 725.406. In any case in which the party opposing
entitlement has submitted the results of other testing pursuant to
Sec. 718.107, the claimant shall be entitled to submit one physician's
assessment of each piece of such evidence in rebuttal. In addition,
where the responsible operator or fund has submitted rebuttal evidence
under paragraph (a)(3)(ii) or (a)(3)(iii) of this section with respect
to medical testing submitted by the claimant, the claimant shall be
entitled to submit an additional statement from the physician who
originally interpreted the chest X-ray or administered the objective
testing. Where the rebuttal evidence tends to undermine the conclusion
of a physician who prepared a medical report submitted by the claimant,
the claimant shall be entitled to submit an additional statement from
the physician who prepared the medical report explaining his conclusion
in light of the rebuttal evidence.
(3)(i) The responsible operator designated pursuant to Sec. 725.410
shall be entitled to obtain and submit, in support of its 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 or paragraph (a)(4) of this section. In
obtaining such evidence, the responsible operator may not require the
miner to travel more than 100 miles from his or her place of residence,
or the distance traveled by the miner in obtaining the complete
pulmonary evaluation provided by Sec. 725.406 of this part, whichever
is greater, unless a trip of greater distance is authorized in writing
by the district director. If a miner unreasonably refuses--
(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 of this part).
(ii) The responsible operator shall be 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 Sec. 725.406. In any case in which the claimant has
submitted the results of other testing pursuant to Sec. 718.107, the
responsible operator shall be entitled to submit one physician's
assessment of each piece of such evidence in rebuttal. In addition,
where the claimant has submitted rebuttal evidence under paragraph
(a)(2)(ii) of this section, the responsible operator shall be entitled
to submit an additional statement from the physician who originally
interpreted the chest X-ray or administered the objective testing.
Where the rebuttal evidence tends to undermine the conclusion of a
physician who prepared a medical report submitted by the responsible
operator, the responsible operator shall be entitled to submit an
additional statement from the physician who prepared the medical report
explaining his conclusion in light of the rebuttal evidence.
(iii) In a case in which the district director has not identified
any potentially liable operators, or has dismissed all potentially
liable operators under Sec. 725.410(a)(3), the district director shall
be entitled to exercise the rights of a responsible operator under this
section, except that the evidence obtained in connection with the
complete pulmonary evaluation performed pursuant to Sec. 725.406 shall
be considered evidence obtained and submitted by the Director, OWCP,
for purposes of paragraph (a)(3)(i) of this section. In a case
involving a dispute concerning medical benefits under Sec. 725.708 of
this part, the district director shall be entitled to develop medical
evidence to determine whether the medical bill is compensable under the
standard set forth in Sec. 725.701 of this part.
(4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(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 shall 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.
(b) Evidence pertaining to liability. (1) Except as provided by
Sec. 725.408(b)(2), the designated responsible operator may submit
evidence to demonstrate that it is not the potentially liable operator
that most recently employed the claimant.
(2) Any other party may submit evidence regarding the liability of
the designated responsible operator or any other operator.
(3) A copy of any documentary evidence submitted under this
paragraph must be mailed to all other parties to the claim. Following
the submission of affirmative 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 shall 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 Sec. 725.456 of this part.
In accordance with the schedule issued by the district director, all
parties shall notify the district director of the name and current
address of any potential witness whose testimony pertains to the
liability of a potentially liable operator or the
designated responsible operator. Absent such notice, the testimony of a
witness relevant to the liability of a potentially liable operator or
the designated responsible operator shall not be admitted in any
hearing conducted with respect to the claim unless the administrative
law judge finds that the lack of notice should be excused due to
extraordinary circumstances.
(d) Except to the extent permitted by Sec. 725.456 and
Sec. 725.310(b), the limitations set forth in this section shall apply
to all proceedings conducted with respect to a claim, and no
documentary evidence pertaining to liability shall 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.
