II

Calendar No. 456

103D CONGRESS

2D SESSION H. R. 2108

IN THE SENATE OF THE UNITED STATES

MAY 23 (legislative day, MAY 6), 1994

Received and read the first time

JUNE 7, 1994

Read the second time and placed on the calendar

AN ACT

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 1994’’.

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

26 determination or award, commence the payment of month-
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1 ly benefits accruing thereafter and of medical benefits that

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

3 make any payment required by an initial determination

4 or by an award, such determination or award shall be con5 sidered final as of the date of its issuance.’’.

6 SEC. 3. EVIDENCE.

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

8 at the end the following:

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

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

11 more than 3 medical examinations offered by the claimant

12 may be received as evidence to support eligibility for bene13 fits.

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

15 for benefits under this part, the responsible operator and

16 the trust fund—

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

18 claimant, not more than one medical examination of

19 the miner, and

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

21 of more than one medical examination of the miner.

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

23 miner to submit to a medical examination by a physician

24 assigned by the District Director if the administrative law

25 judge determines that, at any time, there is good cause
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1 for requiring such examination. For purposes of this sub2 paragraph, good cause shall exist only when the adminis3 trative law judge is unable to determine from existing evi4 dence whether the claimant is entitled to benefits.

5 ‘‘(D) The complete pulmonary evaluation provided

6 each miner under section 413(b) and any consultive eval7 uation developed by the District Director shall be received

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

9 ‘‘(E) Any record of—

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

11 disease,

12 ‘‘(ii) medical treatment for a pulmonary or re13 lated disease, and

14 ‘‘(iii) a biopsy or an autopsy,

15 may be received into evidence notwithstanding subpara16 graph (A) or (B).

17 ‘‘(2) In addition to the medical examinations author18 ized by paragraph (1), each party may submit one inter19 pretive medical opinion (whether presented as documen20 tary evidence or in oral testimony) reviewing each clinical

21 study or physical examination (including a consultive read22 ing of a chest roentgenogram, an evaluation of a blood

23 gas study, and an evaluation of a pulmonary function

24 study) derived from any medical examination or contained

25 in a record referred to in paragraph (1)(E).
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1 ‘‘(3) A request for modification of a denied claim

2 under section 22 of the Longshore and Harbor Workers’

3 Compensation Act, as made applicable to this Act by sub4 section (a) of this section, shall be considered as if it were

5 a new claim for the purpose of applying the limitations

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

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

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

9 given substantial weight over the opinion of other physi10 cians in determining the claimant’s eligibility for benefits

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

12 relevant to the diagnosis of total disability or death due

13 to pneumoconiosis.

14 ‘‘(5) For purposes of this subsection, a medical exam15 ination consists of a physical examination and all appro16 priate clinical studies (not including a biopsy or an au17 topsy) related to the diagnosis of total disability or death

18 due to pneumoconiosis.’’.

19 SEC. 4. SURVIVOR BENEFITS.

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

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

22 the following:

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

24 under this part and if the miner—
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1 ‘‘(1) was receiving benefits for pneumoconiosis

2 pursuant to a final adjudication under this part, or

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

4 the time of the miner’s death,

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

6 a result of the pneumoconiosis.’’.

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

8 422 (30 U.S.C. 932), as amended by subsection (a), is

9 amended by adding at the end the following:

10 ‘‘(o)(1) A widow or widower of a miner who was mar11 ried to the miner for less than 9 months at any time pre12 ceding the miner’s death is not qualified to receive survi13 vor benefits under this part unless the widow or widower

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

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

16 to receive survivor benefits under this part if the widow

17 or widower remarries before attaining the age of 50.

18 ‘‘(3) A widow or widower may not receive an aug19 mentation in survivor benefits on any basis arising out of

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

21 SEC. 5. RESPONSIBLE OPERATOR.

22 Section 422(h) (30 U.S.C. 932(h)) is amended by in23 serting ‘‘(1)’’ after ‘‘(h)’’ and by adding at the end the

24 following:
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1 ‘‘(2)(A) Prior to issuing an initial determination of

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

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

4 and Harbor Workers’ Compensation Act, as made applica5 ble to this Act by subsection (a) of this section, determine

6 whether any operator meets the Secretary’s criteria for li7 ability as a responsible operator under this Act. If a hear8 ing is timely requested on the liability issue, the decision

9 of the administrative law judge conducting the hearing

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

11 and shall not be subject to further appellate review.

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

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

14 was made without reasonable grounds, the administrative

15 law judge may assess the operator for the costs of the pro16 ceeding (not to exceed $750).’’.

17 SEC. 6. ATTORNEY FEES.

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

19 4(b), is amended by adding at the end the following:

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

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

22 claimant is entitled to such benefits, the claimant shall

23 be entitled to receive all reasonable costs and expenses (in24 cluding expert witness and attorney’s fees) incurred by the

25 claimant in such proceeding and in any other administra-
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1 tive or judicial proceeding on such claim occurring before

2 such proceeding.

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

4 to such claim—

5 ‘‘(A) the person or Board which made the de6 termination that the claimant is entitled to benefits

7 in an administrative proceeding and any other per8 son or Board which made a prior determination in

9 an administrative proceeding on such claim, or

10 ‘‘(B) the court in the case of a judicial proceed11 ing,

12 shall determine the amount of all costs and expenses (in13 cluding expert witness and attorney’s fees) incurred by the

14 claimant in connection with any such proceeding and shall

15 assess the operator responsible to the claimant for such

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

17 an operator responsible to the claimant, shall assess the

18 fund for such costs and expenses.

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

20 shall be made within 60 days of the date the claimant sub21 mits a petition for the payment of such costs and expenses

22 to a person, the Board, or court which made a determina23 tion on the claimant’s claim. The person, Board, or court

24 receiving such petition shall take such action as may be

25 necessary to assure that such costs and expenses are paid
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1 within 45 days of the date of the determination of such

2 costs and expenses unless a motion to reconsider—

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

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

5 amount,

6 is pending.

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

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

9 costs and expenses were paid is determined in a later pro10 ceeding not to be eligible for benefits under this part, the

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

12 and expenses.

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

14 Workers’ Compensation Act shall apply with respect to

15 any person who receives costs and expenses which are paid

16 under this subsection on account of services rendered a

17 claimant.’’.

18 SEC. 7. ADMINISTRATION.

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

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

21 Lung Benefits Act may be made by a claimant or respond22 ent to the Benefits Review Board unless such order has

23 been made by an administrative law judge.
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1 (b) ACQUIESCENCE.—The Secretary of Labor may

2 not delegate to the Benefits Review Board the authority

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

4 SEC. 8. REFILING.

5 Any claim filed under the Black Lung Benefits Act

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

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

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

9 merits.

10 SEC. 9. DEFINITIONS.

11 (a) COKE OVENS.—

12 (1) FEDERAL MINE SAFETY AND HEALTH ACT

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

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

15 (A) in paragraph (d), by inserting before

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

17 coke oven or any machine shop or other oper18 ation reasonably related to the coke oven’’,

19 (B) in paragraph (g), by inserting before

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

21 coke oven or in any other operation reasonably

22 related to the operation of a coke oven’’, and

23 (C) in paragraph (h)(2), by inserting be24 fore the semicolon the following: ‘‘and includes

25 a coke oven and any operation, structure, or
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1 area of land reasonably related to the operation

2 of a coke oven’’.

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

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

5 amended by inserting before the period the follow6 ing: ‘‘or who works or has worked at a coke oven or

7 in any other operation reasonably related to the op8 eration of a coke oven’’.

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

10 902(b)) is amended—

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

12 ‘‘which disease or sequelae is restrictive or obstruc13 tive or both’’, and

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

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

16 SEC. 10. EFFECTIVE DATES.

17 (a) GENERAL RULE.—Except as provided in sub18 sections (b) and (c), this Act and the amendments made

19 by this Act shall take effect October 1, 1994.

20 (b) SECTION 5.—The amendment made by section 5

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

22 the first time after October 1, 1994, and shall not apply

23 with respect to any claim which is filed before such date

24 and which is refiled under section 8 of this Act after such

25 date.
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1 (c) COSTS OFFSET.—The amendments made by this

2 Act shall not take effect unless the costs of the amend3 ments are fully offset in each fiscal year through fiscal

4 year 1999 by changes to the Black Lung Benefits Pro5 gram.

Passed the House of Representatives May 19, 1994.

Attest: DONNALD K. ANDERSON,

Clerk.

Calendar No. 456

103D CONGRESS

2D SESSION H. R. 2108

AN ACT

To make improvements in the Black Lung Benefits

Act.

JUNE 7, 1994

Read the second time and placed on the calendar