II

103D CONGRESS

1ST SESSION S. 1773

To make improvements in the Black Lung Benefits Act, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 22, 1993

Mr. SIMON (for himself, Mr. WOFFORD, Mr. ROBB, and Mr. ROCKEFELLER)

introduced the following bill; which was read twice and referred to the

Committee on Finance

A BILL

To make improvements in the Black Lung Benefits Act,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; REFERENCE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Black Lung Benefits Restoration Act’’.

6 (b) REFERENCE.—Whenever in this Act (other than

7 section 9(a)(1), 10, 11, or 12) an amendment or repeal

8 is expressed in terms of an amendment to, or repeal of,

9 a section or other provision, the reference shall be consid-
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1 ered to be made to a section or other provision of the

2 Black Lung Benefits Act (30 U.S.C. 901 et seq.).

3 SEC. 2. BENEFIT OVERPAYMENT.

4 Part C is amended by adding at the end the following:

5 ‘‘SEC. 436 (a) The repayment of benefits paid on a

6 claim filed under this part before the final adjudication

7 of the claim shall not be required if the claim was finally

8 denied, unless fraud or deception was used to procure the

9 payment of such benefits.

10 ‘‘(b) The trust fund shall refund any payments made

11 to it as a reimbursement of benefits paid on a claim filed

12 under this part before the final adjudication of the claim,

13 unless fraud or deception was used to procure the payment

14 of such benefits.

15 ‘‘(c) The trust fund shall reimburse an operator for

16 any benefits paid on a claim filed under this part before

17 the final adjudication of the claim if the claim was finally

18 denied.

19 ‘‘(d) If on a claim for benefits filed under this part—

20 ‘‘(1) the Secretary makes an initial determina21 tion—

22 ‘‘(A) of eligibility; or

23 ‘‘(B) that particular medical benefits are

24 payable; or

25 ‘‘(2) an award of benefits is made,
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1 the operator found to be the responsible operator under

2 section 422(h) shall, within 30 days of the date of such

3 determination or award, commence the payment of month4 ly benefits accruing thereafter and of medical benefits that

5 have been found payable. If an operator fails to timely

6 make any payment required by an initial determination

7 or by an award, such determination or award shall be con8 sidered final as of the date of its issuance.’’.

9 SEC. 3. EVIDENCE.

10 Section 422 (30 U.S.C. 932) is amended by adding

11 at the end the following:

12 ‘‘(m)(1)(A) During the course of all proceedings on

13 a claim for benefits under this part, the results of not

14 more than 3 medical examinations and 3 interpretations

15 of chest roentgenograms offered by the claimant may be

16 received as evidence to support eligibility for benefits.

17 ‘‘(B) During the course of all proceedings on a claim

18 for benefits under this part, the responsible operator or

19 the trust fund—

20 ‘‘(i) may require, at no expense to the claimant,

21 that the claimant undergo certain medical examina22 tions, but the responsible operator or trust fund may

23 not submit or require more medical examinations

24 than are conducted and submitted during the course

25 of all proceedings by the claimant; and
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1 ‘‘(ii) may offer into evidence the set of results

2 of one chest roentgenogram for each set of chest

3 roentgenogram results that are offered into evidence

4 by the claimant.

5 ‘‘(C) An administrative law judge may require the

6 miner to submit to a medical examination by a physician

7 assigned by the District Director if the administrative law

8 judge determines that, at any time, there is good cause

9 for requiring such examination. For purposes of this sub10 paragraph, good cause shall exist only when the adminis11 trative law judge is unable to determine from existing evi12 dence whether the claimant is entitled to benefits.

13 ‘‘(D) The complete pulmonary evaluation provided

14 each miner under section 413(b) and any consultative

15 evaluation developed by the District Director shall be re16 ceived into evidence notwithstanding subparagraph (A) or

17 (B).

18 ‘‘(E) Any record of—

19 ‘‘(i) hospitalization for a pulmonary or related

20 disease;

21 ‘‘(ii) medical treatment for a pulmonary or re22 lated disease; and

23 ‘‘(iii) a biopsy or an autopsy,

24 may be received into evidence notwithstanding subpara25 graph (A) or (B).
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1 ‘‘(2) In addition to the medical examinations author2 ized by paragraph (1), each party may submit not more

3 than one interpretive medical opinion whether presented

4 as documentary evidence or in oral testimony. Such medi5 cal opinion may review other evidence derived from chest

6 roentgenograms, blood gas studies, or pulmonary function

7 studies contained in the reports offered under this sub8 section.

9 ‘‘(3) A request for modification of a denied claim

10 under section 22 of the Longshore and Harbor Workers’

11 Compensation Act, as made applicable to this Act by sub12 section (a) of this section, shall be considered as if it were

13 a new claim for the purpose of applying the limitations

14 prescribed by paragraphs (1) and (2).

15 ‘‘(4) The opinion of a miner’s treating physician, if

16 offered in accordance with paragraph (1)(A), shall be

17 given substantial weight over the opinion of other physi18 cians in determining the claimant’s eligibility for benefits

19 if the treating physician is board-certified in a specialty

20 relevant to the diagnosis of total disability or death due

21 to pneumoconiosis.

22 ‘‘(5) For purposes of this subsection, a medical exam23 ination consists of a physical examination and all appro24 priate clinical studies (not including a biopsy or an au-
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1 topsy) related to the diagnosis of total disability or death

2 due to pneumoconiosis.’’.

3 SEC. 4. SURVIVOR BENEFITS.

4 (a) DEATH.—Section 422 (30 U.S.C. 932), as

5 amended by section 3, is amended by adding at the end

6 the following:

7 ‘‘(n) If an eligible survivor files a claim for benefits

8 under this part and if the miner—

9 ‘‘(1) was receiving benefits for pneumoconiosis

10 pursuant to a final adjudication under this part; or

11 ‘‘(2) was totally disabled by pneumoconiosis at

12 the time of the miner’s death,

13 the miner’s death shall be considered to have occurred as

14 a result of the pneumoconiosis, unless the miner’s death

15 was the result of an event that had no medical connection

16 with the pneumoconiosis.’’.

17 (b) RULES FOR WIDOWS AND WIDOWERS.—Section

18 422 (30 U.S.C. 932), as amended by subsection (a), is

19 amended by adding at the end the following:

20 ‘‘(o)(1) A widow or widower of a miner who was mar21 ried to the miner for less than 9 months at any time pre22 ceding the miner’s death is not qualified to receive survi23 vor benefits under this part unless the widow or widower

24 was the natural or adoptive parent of the miner’s child.
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1 ‘‘(2) The widow or widower of a miner is disqualified

2 to receive survivor benefits under this part if the widow

3 or widower remarries before attaining the age of 50.

4 ‘‘(3) A widow or widower may not receive an aug5 mentation in survivor benefits on any basis arising out of

6 a remarriage of the widow or widower.’’.

7 SEC. 5. RESPONSIBLE OPERATOR.

8 Section 422(h) (30 U.S.C. 932(h)) is amended by in9 serting ‘‘(1)’’ after ‘‘(h)’’ and by adding at the end the

10 following:

11 ‘‘(2)(A) Prior to issuing an initial determination of

12 eligibility, the Secretary shall, after investigation, notice,

13 and a hearing as provided in section 19 of the Longshore

14 and Harbor Workers’ Compensation Act, as made applica15 ble to this Act by subsection (a) of this section, determine

16 whether any operator meets the Secretary’s criteria for li17 ability as a responsible operator under this Act. If a hear18 ing is timely requested on the liability issue, the decision

19 of the administrative law judge conducting the hearing

20 shall be issued not later than 120 days after such request

21 and shall not be subject to further appellate review.

22 ‘‘(B) If the administrative law judge determines that

23 an operator’s request for a hearing on the liability issue

24 was made without reasonable grounds, the administrative
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1 law judge may assess the operator for the costs of the pro2 ceeding (not to exceed $750).’’.

3 SEC. 6. ATTORNEY FEES.

4 (a) ELIGIBILITY FOR FEES.—Section 422 (30 U.S.C.

5 932), as amended by section 4(b), is amended by adding

6 at the end the following:

7 ‘‘(p)(1) If in any administrative or judicial proceeding

8 on a claim for benefits a determination is made that a

9 claimant is entitled to such benefits, the claimant shall

10 be entitled to receive all reasonable costs and expenses (in11 cluding expert witness and attorney’s fees) incurred by the

12 claimant in such proceeding and in any other administra13 tive or judicial proceeding on such claim occurring before

14 such proceeding.

15 ‘‘(2) In the case of a proceeding held with respect

16 to such claim—

17 ‘‘(A) the person or Board that made the deter18 mination that the claimant is entitled to benefits in

19 an administrative proceeding and any other person

20 or Board that made a prior determination in an ad21 ministrative proceeding on such claim; or

22 ‘‘(B) the court in the case of a judicial proceed23 ing,

24 shall determine the amount of all costs and expenses (in25 cluding expert witness and attorney’s fees) incurred by the
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1 claimant in connection with any such proceeding and shall

2 assess the operator responsible to the claimant for such

3 costs and expenses that are reasonable or if there is not

4 an operator responsible to the claimant, shall assess the

5 fund for such costs and expenses.

6 ‘‘(3) The determination of such costs and expenses

7 shall be made within 60 days of the date the claimant sub8 mits a petition for the payment of such costs and expenses

9 to a person, the Board, or court that made a determina10 tion on the claimant’s claim. The person, Board, or court

11 receiving such petition shall take such action as may be

12 necessary to assure that such costs and expenses are paid

13 within 45 days of the date of the determination of such

14 costs and expenses unless a motion to reconsider—

15 ‘‘(A) the amount of such costs and expenses; or

16 ‘‘(B) the person liable for the payment of such

17 amount,

18 is pending.

19 ‘‘(4) If an operator pays costs and expenses assessed

20 under paragraph (1) and if the claimant for whom such

21 costs and expenses were paid is determined in a later pro22 ceeding not to be eligible for benefits under this part, the

23 fund shall pay the operator the amount paid for such costs

24 and expenses.
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1 ‘‘(5) Section 28(e) of the Longshore and Harbor

2 Workers’ Compensation Act shall apply with respect to

3 any person who receives costs and expenses that are paid

4 under this subsection on account of services rendered a

5 claimant.’’.

6 (b) EFFECTIVE DATE.—The amendment made by

7 subsection (a) shall apply only with respect to claims that

8 are filed for the first time after the date of the enactment

9 of this Act and shall not apply with respect to any claim

10 that is filed before such date and that is refiled under sec11 tion 8 of this Act after such date.

12 SEC. 7. ADMINISTRATION.

13 (a) APPEALS TO THE BENEFITS REVIEW BOARD.—

14 No appeal of an order in a proceeding under the Black

15 Lung Benefits Act may be made by a claimant or respond16 ent to the Benefits Review Board unless such order has

17 been made by an administrative law judge.

18 (b) ACQUIESCENCE.—The Secretary of Labor may

19 not delegate to the Benefits Review Board the authority

20 to refuse to acquiesce in a decision of a Federal court.

21 SEC. 8. REFILING.

22 Any claim filed under the Black Lung Benefits Act

23 after January 1, 1982, but before the date of the enact24 ment of this Act, may be refiled under such Act after the
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1 date of the enactment of this Act for a de novo review

2 on the merits.

3 SEC. 9. DEFINITIONS.

4 (a) COKE OVENS.—

5 (1) FEDERAL MINE SAFETY AND HEALTH ACT

6 OF 1977.—Section 3 of the Federal Mine Safety and

7 Health Act of 1977 (30 U.S.C. 802) is amended—

8 (A) in subsection (d), by inserting before

9 the semicolon the following: ‘‘or who operates a

10 coke oven or any machine shop or other oper11 ation reasonably related to the coke oven’’;

12 (B) in subsection (g), by inserting before

13 the semicolon the following: ‘‘or working at a

14 coke oven or in any other operation reasonably

15 related to the operation of a coke oven’’; and

16 (C) in subsection (h)(2), by inserting be17 fore the semicolon the following: ‘‘and includes

18 a coke oven and any operation, structure, or

19 area of land reasonably related to the operation

20 of a coke oven’’.

21 (2) BLACK LUNG BENEFITS ACT.—The first

22 sentence of section 402(d) (30 U.S.C. 902(d)) is

23 amended by inserting before the period the follow24 ing: ‘‘or who works or has worked at a coke oven or
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1 in any other operation reasonably related to the op2 eration of a coke oven’’.

3 (b) PNEUMOCONIOSIS.—Section 402(b) (30 U.S.C.

4 902(b)) is amended—

5 (1) by adding after ‘‘sequelae’’ the following:

6 ‘‘which disease or sequelae is restrictive or obstruc7 tive or both’’; and

8 (2) by striking out ‘‘coal mine’’ and inserting in

9 lieu thereof ‘‘coal mine or coke oven’’.

10 SEC. 10. BENEFITS REVIEW BOARD.

11 Section 21(b)(1) of the Longshoremen’s and Harbor

12 Workers’ Compensation Act (33 U.S.C. 921(b)(1)) is

13 amended—

14 (1) by inserting after the first sentence the fol15 lowing new sentence: ‘‘The Secretary shall appoint

16 and fix the compensation of the Benefits Review

17 Board members without regard to the provisions of

18 title 5, United States Code, governing appointments

19 in the competitive service, and without regard to the

20 provisions of chapter 51 and subchapter III of chap21 ter 53, relating to classification and the General

22 Schedule pay rates, and without regard to chapter

23 75, relating to adverse actions.’’;

24 (2) in paragraph (5), by striking the sixth sen25 tence; and
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1 (3) by adding at the end thereof the following

2 new paragraph:

3 ‘‘(6) The rate of compensation for members of

4 the Board shall not exceed the daily equivalent of

5 the maximum rate specified in section 5376 of title

6 5, United States Code.’’.

7 SEC. 11. COMPENSATION FOR WORK INJURIES REGULA8 TIONS.

9 Section 8149 of title 5, United States Code, is

10 amended—

11 (1) in the second sentence by striking ‘‘des12 ignated or’’; and

13 (2) by inserting after the second sentence the

14 following new sentences: ‘‘The Secretary shall ap15 point and fix the compensation of the Employee’s

16 Compensation Appeals Board members without re17 gard to the provisions of this title, governing ap18 pointments in the competitive service, and without

19 regard to the provisions of chapter 51 and sub20 chapter III of chapter 53, relating to classification

21 and the General Schedule pay rates, and without re22 gard to chapter 75, relating to adverse actions. The

23 rate of compensation for members of the Board shall

24 not exceed the daily equivalent of the maximum rate

25 specified in section 5376.’’.
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1 SEC. 12. BLACK LUNG DISABILITY TRUST FUND.

2 (a) REDUCTION IN TAX RATE ONLY WHEN TRUST

3 FUND IS SOLVENT.—Paragraph (2) of section 4121(e) of

4 the Internal Revenue Code of 1986 (relating to reduction

5 in amount of tax) is amended to read as follows:

6 ‘‘(2) TEMPORARY INCREASE TERMINATION

7 DATE.—For purposes of paragraph (1), the tem8 porary increase termination date is the first January

9 1 after 1981 as of which there is—

10 ‘‘(A) no balance of repayable advances

11 made to the Black Lung Disability Trust Fund,

12 and

13 ‘‘(B) no unpaid interest on such ad14 vances.’’

15 (b) RATE OF INTEREST ON REPAYABLE AD16 VANCES.—Paragraph (3) of section 9501(c) of the Inter17 nal Revenue Code of 1986 (relating to repayable advances)

18 is amended to read as follows:

19 ‘‘(3) RATE OF INTEREST.—Interest on any ad20 vance made pursuant to this subsection shall be at

21 the Federal long-term rate determined by the Sec22 retary of the Treasury under section

23 1274(d)(1)(C)(ii) for the month in which such ad24 vance occurs.’’

25 (c) REFINANCING OF ACCUMULATED ADVANCES.—

26 Notwithstanding section 9501(d)(3) of the Internal Reve-
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1 nue Code of 1986 (as in effect before the amendment

2 made by subsection (b)), in the case of any repayable ad3 vance made on or before the date of the enactment of this

4 Act, interest on such advance for any period after such

5 date shall be computed by using the Federal long-term

6 rate determined by the Secretary of the Treasury under

7 section 1274(d)(1)(C)(ii) of the Internal Revenue Code of

8 1986 for the month in which such date occurs.

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