What Is the Applicable Law?
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 program was administered by the Social Security Administration,
which promulgated regulations at 20 C.F.R. Part 410 to accomplish the task. Claims
adjudicated under these regulations are commonly referred to as "Part
B" claims. The number of claims filed in these early years greatly
exceeded Congress' expectations and this resulted in longer-than-anticipated
processing times 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 promulgate
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. Claims governed by these
regulations are commonly referred to as a "section 415 transition claims."
Because the interim regulations at 20 C.F.R. § 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 again amended
the Black Lung Benefits Act in 1977. The 1977 enactment authorized the
Department of Labor to promulgate interim and permanent regulations for all black
lung claims. Section 435 of the 1977 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 20 C.F.R. § 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 as well as newly filed claims until 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 (3rd Cir. 1994).
See also Harman Mining Co. v. Layne, 21 B.L.R. 2-507 (4th
Cir. 1998) (unpub.).
B. Regulatory amendments at
20 C.F.R. Part 718 (2008),
effective dates of
On December 20, 2000, the Department substantively
amended certain regulatory provisions at 20 C.F.R Parts 718 and 725 (2008).
The Department stated that the amendments were made to (1) simplify
administrative procedures before the district director, (2) 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 (3) 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 65 Fed. Reg.
79,920-79,924 (Dec. 20, 2000).
The effective date of the amended regulations is 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) (2008). 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.
65 Fed. Reg. 79,956 (Dec. 20, 2000).
With regard to the applicability of the
substantively changed Part 718 regulations, 20 C.F.R. § 718.2 (2008)
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 C.F.R. § 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 (2008). In its comments to Part
718, the Department states:
[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.
65 Fed. Reg. 79,949 (Dec. 20, 2000). In its comments to
the amended regulations, the Department further states:
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.
65 Fed. Reg. 79,955 (Dec. 20, 2000).
In Nat’l. Mining Ass’n., et al. v. Chao,
160 F. Supp.2d 47 (D.D.C. 2001), 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,
160 F.Supp.2d 47 (D.D.C. 2001).
On appeal, the U.S. Circuit Court of Appeals for
the D.C. Circuit affirmed Judge Sullivan’s decision finding that all of the
regulatory amendments were valid (except the fee-shifting provisions at §
725.459), but
certain amendments were impermissibly retroactive. In National Mining
Ass’n. et al v. Dep’t. of Labor, 292 F.3d 849 (D.C. Cir. 2002), the court
held that the following amendments, although valid, could only be applied to
claims filed on or after January 19, 2001: 20 C.F.R. §§ 725.101(a)(31),
718.204(a), 725.212(b), 725.213(c), 725.214(d), 725.219(c) and (d), and
725.701(e) (2008).
II. Types
of claims
Under the regulations, there are eight types of
black lung claims that 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 by 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 lifetime
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 related
medical services 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 if benefits are awarded. A
special provision was made for those claims that 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 Black Lung Disability Trust Fund while the employer
disputes such medical treatment. Once the employer is finally adjudicated to
be liable for such medical treatment, then it must 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
s/he 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 (1) the amount of the overpayment, and (2) whether the overpayment
may be waived. 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 operator. 20 C.F.R. § 725.620 (2008). These claims are assigned
“BCP” case numbers.
H.
Black
Lung Part B Claim (BLB)
The "Black Lung Consolidation
of Administrative Responsibilities Act" of 2002, 30 U.S.C. § 801 (P.L.
107-275, 116 STAT. 1925 (Nov. 2, 2002)) was enacted to amend the Black Lung
Benefits Act at 30 U.S.C. §§ 901-945 to transfer responsibility for adjudicating and
administering all pending Part B claims from the Social Security Administration
(SSA) to the Department of Labor (DOL). Prior to enactment of the 2002 Act,
the SSA administered and adjudicated all black lung claims filed prior to June
30, 1973, also known as "Part B" claims. The SSA and DOL shared
responsibility for adjudicating "transition period" claims filed
between July 1, 1973 and December 31, 1973 and, then the DOL was responsible for
adjudicating and administering claims filed on or after January 1, 1974, also
known as "Part C" claims. The effect of the 2002 Act is to transfer
jurisdiction of remaining Part B claims to the DOL to administer and
adjudicate, in addition to Part C claims already administered and adjudicated
by the DOL.
Part B claims transferred to the
DOL under the 2002 Act are designated as "BLB" claims by the Office
of Administrative Law Judges. Adjudicatory proceedings for these claims follow
the procedures set forth at 20 C.F.R. Part 410. They are non-adversarial in
nature so the caption will list only the claimant (miner, survivor, or
dependent). The Director, OWCP is not a party-in-interest in these claims and
will not participate in the proceedings or present any evidence to challenge a
claimant's entitlement under Part B. Benefits awarded under Part B are paid by
the federal treasury. Finally, unlike other black lung case types adjudicated
by the Office of Administrative Law Judges that are appealed to the Benefits
Review Board, if a claimant is dissatisfied with the judge's decision in a BLB
claim, s/he may request review with the Administrative Review Board. See Chapter
19.
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 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. The vertical axis represents the
year the claim is filed. The horizontal axis represents the number of years of
coal mine employment.
For a claim filed during the effective
dates of the Part 727 regulations, but the miner demonstrated fewer than ten
years of coal mine employment, the claim is adjudicated under 20 C.F.R.
§ 410.490. See Chapters 9, 10, and 11 for the specific effective
dates of these regulations and other entitlement criteria.
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.
Some circuit courts have accepted appeals in
claims where the miner worked in the coal mines in their jurisdiction at
some point in time. For example, 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." See also Consolidation Coal Co. v.
Director, OWCP [Kramer], 305 F.3d 203 (3rd Cir. 2002) (the miner
last worked in West Virginia, which lies in the Fourth Circuit, but he also
worked in Pennsylvania; Third Circuit accepted the appeal and cited to Fourth
Circuit as well as its own case law in deciding the appeal).
VI. Addresses and
phone numbers of Circuit Courts; jurisdiction
In the event you need to
know the status of a case pending with the circuit court, or need other
information, 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:
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FIRST CIRCUIT
(Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island)
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RICHARD C. DONOVAN, CLERK
U.S. Court of Appeals for the First Circuit
One Courthouse Way, Suite 2500
Boston, MA 02210
Tel. (617) 748-9057
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SECOND CIRCUIT
(Connecticut, New York, Vermont)
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CATHERINE O'HAGAN-WOLFE, CLERK
U.S. Court of Appeals for the Second Circuit
40 Foley Square, Rm. 1702
New York, NY 10007
Tel. (212) 857-8500
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THIRD CIRCUIT
(Delaware, New Jersey, Pennsylvania , Virgin Islands)
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MARCIA M. WALDRON, 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
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FOURTH CIRCUIT
(Maryland, North Carolina, South Carolina, Virginia, West Virginia)
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PATRICIA S. CONNOR, CLERK
U.S. Court of Appeals for the Fourth Circuit
U.S. Courthouse
1100 East Main St., Room 501
Richmond, VA 23219
Tel. (804) 916-2700
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FIFTH CIRCUIT
(Louisiana, Mississippi, Texas)
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CHARLES FULBRUGE, III, CLERK
U.S. Court of Appeals for the Fifth Circuit
600 South Maestri Place
New Orleans, LA 70130
Tel. (504) 310-7700
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SIXTH CIRCUIT
(Kentucky, Michigan, Ohio, Tennessee)
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LEONARD GREEN, CLERK
U.S. Court of Appeals for the Sixth Circuit
Potter Steward Courthouse, Room 532
100 East 5th Street
Cincinnati, OH 45202
Tel. (513) 564-7000
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SEVENTH CIRCUIT
(Illinois, Indiana, Wisconsin)
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GINO J. AGNELLO, CLERK
U.S. Court of Appeals for the Seventh Circuit
219 S. Dearborn St., Rm. 2722
Chicago, IL 60604
Tel. (312) 435-5850
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EIGHTH CIRCUIT
(Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)
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MICHAEL E. 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
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NINTH CIRCUIT
(Alaska, Arizona, California, Guam, Hawaii,
Idaho, Montana, Nevada, Northern Marianna Islands, Oregon, Washington)
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MOLLY DWYER, CLERK
U.S. Court of Appeals for the Ninth
Circuit
95 Seventh Street
San
Francisco, CA 94103
Tel. (415) 355-8000
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TENTH CIRCUIT
(Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
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ELISABETH A. SHUMAKER, 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
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ELEVENTH CIRCUIT
(Alabama, Florida, Georgia)
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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
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DISTRICT OF COLUMBIA CIRCUIT
(Washington, D.C.)
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MARK J. LANGER, CLERK
U.S. Court of Appeals for the D.C.
Circuit
333
Constitution Ave., N.W.
Room 5523
Washington, D.C. 20001-2866
(202) 216-7000
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FEDERAL CIRCUIT COURT OF APPEALS
(Nationwide)
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JAN HORBALY, CLERK
U.S. Court of Appeals for the
Federal Circuit
U.S. Courthouse
717
Madison Place, N.W.,
Room 401
Washington, DC 20439
(202) 633-6550
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