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105TH CONGRESS

1ST SESSION H. R. 609

To make improvements in the Black Lung Benefits Act.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 5, 1997

Mr. HOLDEN (for himself, Mr. BOUCHER, Mr. KANJORSKI, Mr. MASCARA, Mr.

MURTHA, and Mr. WISE) introduced the following bill; which was referred

to the Committee on Education and the Workforce

A BILL

To make improvements in the Black Lung Benefits Act.

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 of 1997’’.

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

7 section 9(a)(1)) an amendment or repeal is expressed in

8 terms of an amendment to, or repeal of, a section or other

9 provision, the reference shall be considered to be made to

10 a section or other provision of the Black Lung Benefits

11 Act.
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1 SEC. 2. BENEFIT OVERPAYMENT.

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

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

4 claim filed under this part before the final adjudication

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

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

7 payment of such benefits.

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

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

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

11 unless fraud or deception was used to procure the payment

12 of such benefits.

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

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

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

16 denied.

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

18 ‘‘(1) the Secretary makes an initial determina19 tion—

20 ‘‘(A) of eligibility, or

21 ‘‘(B) that particular medical benefits are

22 payable, or

23 ‘‘(2) an award of benefits is made,

24 the operator found to be the responsible operator under

25 section 422(h) shall, within 30 days of the date of such
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1 determination or award, commence the payment of month2 ly benefits accruing thereafter and of medical benefits that

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

4 make any payment required by an initial determination

5 or by an award, such determination or award shall be con6 sidered final as of the date of its issuance.’’.

7 SEC. 3. EVIDENCE.

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

9 at the end the following:

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

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

12 more than 3 medical examinations offered by the claimant

13 may be received as evidence to support eligibility for bene14 fits.

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

16 for benefits under this part, the responsible operator and

17 the trust fund—

18 ‘‘(i) may each require, at no expense to the

19 claimant, not more than one medical examination of

20 the miner, and

21 ‘‘(ii) may not each offer as evidence the results

22 of more than one medical examination of the miner.

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

24 miner to submit to a medical examination by a physician

25 assigned by the District Director if the administrative law
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1 judge determines that, at any time, there is good cause

2 for requiring such examination. For purposes of this sub3 paragraph, good cause shall exist only when the adminis4 trative law judge is unable to determine from existing evi5 dence whether the claimant is entitled to benefits.

6 ‘‘(D) The complete pulmonary evaluation provided

7 each miner under section 413(b) and any consultive eval8 uation developed by the District Director shall be received

9 into evidence notwithstanding subparagraph (A) or (B).

10 ‘‘(E) Any record of—

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

12 disease,

13 ‘‘(ii) medical treatment for a pulmonary or re14 lated disease, and

15 ‘‘(iii) a biopsy or an autopsy,

16 may be received into evidence notwithstanding subpara17 graph (A) or (B).

18 ‘‘(2) In addition to the medical examinations author19 ized by paragraph (1), each party may submit one inter20 pretive medical opinion (whether presented as documen21 tary evidence or in oral testimony) reviewing each clinical

22 study or physical examination (including a consultive read23 ing of a chest roentgenogram, an evaluation of a blood

24 gas study, and an evaluation of a pulmonary function
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1 study) derived from any medical examination or contained

2 in a record referred to in paragraph (1)(E).

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

4 under section 22 of the Longshore and Harbor Workers’

5 Compensation Act, as made applicable to this Act by sub6 section (a) of this section, shall be considered as if it were

7 a new claim for the purpose of applying the limitations

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

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

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

11 given substantial weight over the opinion of other physi12 cians in determining the claimant’s eligibility for benefits

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

14 relevant to the diagnosis of total disability or death due

15 to pneumoconiosis.

16 ‘‘(5) For purposes of this subsection, a medical exam17 ination consists of a physical examination and all appro18 priate clinical studies (not including a biopsy or an au19 topsy) related to the diagnosis of total disability or death

20 due to pneumoconiosis.’’.

21 SEC. 4. SURVIVOR BENEFITS.

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

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

24 the following:
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1 ‘‘(n) If an eligible survivor files a claim for benefits

2 under this part and if the miner—

3 ‘‘(1) was receiving benefits for pneumoconiosis

4 pursuant to a final adjudication under this part, or

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

6 the time of the miner’s death,

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

8 a result of the pneumoconiosis.’’.

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

10 422 (30 U.S.C. 932), as amended by subsection (a), is

11 amended by adding at the end the following:

12 ‘‘(o)(1) A widow or widower of a miner who was mar13 ried to the miner for less than 9 months at any time pre14 ceding the miner’s death is not qualified to receive survi15 vor benefits under this part unless the widow or widower

16 was the natural or adoptive parent of the miner’s child.

17 ‘‘(2) The widow or widower of a miner is disqualified

18 to receive survivor benefits under this part if the widow

19 or widower remarries before attaining the age of 50.

20 ‘‘(3) A widow or widower may not receive an aug21 mentation in survivor benefits on any basis arising out of

22 a remarriage of the widow or widower.’’.
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1 SEC. 5. RESPONSIBLE OPERATOR.

2 Section 422(h) (30 U.S.C. 932(h)) is amended by in3 serting ‘‘(1)’’ after ‘‘(h)’’ and by adding at the end the

4 following:

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

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

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

8 and Harbor Workers’ Compensation Act, as made applica9 ble to this Act by subsection (a) of this section, determine

10 whether any operator meets the Secretary’s criteria for li11 ability as a responsible operator under this Act. If a hear12 ing is timely requested on the liability issue, the decision

13 of the administrative law judge conducting the hearing

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

15 and shall not be subject to further appellate review.

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

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

18 was made without reasonable grounds, the administrative

19 law judge may assess the operator for the costs of the pro20 ceeding (not to exceed $750).’’.

21 SEC. 6. ATTORNEY FEES.

22 Section 422 (30 U.S.C. 932), as amended by section

23 4(b), is amended by adding at the end the following:

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

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

26 claimant is entitled to such benefits, the claimant shall
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1 be entitled to receive all reasonable costs and expenses (in2 cluding expert witness and attorney’s fees) incurred by the

3 claimant in such proceeding and in any other administra4 tive or judicial proceeding on such claim occurring before

5 such proceeding.

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

7 to such claim—

8 ‘‘(A) the person or Board which made the de9 termination that the claimant is entitled to benefits

10 in an administrative proceeding and any other per11 son or Board which made a prior determination in

12 an administrative proceeding on such claim, or

13 ‘‘(B) the court in the case of a judicial proceed14 ing,

15 shall determine the amount of all costs and expenses (in16 cluding expert witness and attorney’s fees) incurred by the

17 claimant in connection with any such proceeding and shall

18 assess the operator responsible to the claimant for such

19 costs and expenses which are reasonable or if there is not

20 an operator responsible to the claimant, shall assess the

21 fund for such costs and expenses.

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

23 shall be made within 60 days of the date the claimant sub24 mits a petition for the payment of such costs and expenses
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1 to a person, the Board, or court which made a determina2 tion on the claimant’s claim. The person, Board, or court

3 receiving such petition shall take such action as may be

4 necessary to assure that such costs and expenses are paid

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

6 costs and expenses unless a motion to reconsider—

7 ‘‘(A) the amount of such costs and expenses, or

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

9 amount,

10 is pending.

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

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

13 costs and expenses were paid is determined in a later pro14 ceeding not to be eligible for benefits under this part, the

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

16 and expenses.

17 ‘‘(5) Section 28(e) of the Longshore and Harbor

18 Workers’ Compensation Act shall apply with respect to

19 any person who receives costs and expenses which are paid

20 under this subsection on account of services rendered a

21 claimant.’’.

22 SEC. 7. ADMINISTRATION.

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

24 No appeal of an order in a proceeding under the Black
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1 Lung Benefits Act may be made by a claimant or respond2 ent to the Benefits Review Board unless such order has

3 been made by an administrative law judge.

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

5 not delegate to the Benefits Review Board the authority

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

7 SEC. 8. REFILING.

8 Any claim filed under the Black Lung Benefits Act

9 after January 1, 1982, but before the effective date of this

10 Act prescribed by section 11(a), may be refiled under such

11 Act after such effective date for a de novo review on the

12 merits.

13 SEC. 9. CONSTRUCTION.

14 If in any legal proceeding a term in any amendment

15 made by this Act is considered to be ambiguous, the legis16 lative history accompanying this Act shall be considered

17 controlling.

18 SEC. 10. EFFECTIVE DATES.

19 (a) GENERAL RULE.—Except as provided in sub20 section (b), this Act and the amendments made by this

21 Act shall take effect October 1, 1997.

22 (b) SECTION 6.—The amendment made by section 6

23 shall apply only with respect to claims which are filed for

24 the first time after October 1, 1997, and shall not apply

25 with respect to any claim which is filed before such date
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1 and which is refiled under section 8 of this Act after such

2 date.

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