Union Calendar No. 284
103D CONGRESS
2D SESSION
H. R. 2108
[Report No. 103–507]
To make improvements in the Black Lung Benefits Act.
IN THE HOUSE OF REPRESENTATIVES
MAY 12, 1993
Mr. MURPHY (for himself, Mr. FORD of Michigan, Mr. BOUCHER, Mr. WISE,
Mr. BEVILL, Mr. HOLDEN, Mr. SANDERS, Mr. RAHALL, Mr. KLINK, Mr.
MURTHA, Mr. ROGERS, Mr. KOPETSKI, Mr. KANJORSKI, and Mr. MOL-
LOHAN) introduced the following bill; which was referred to the Commit-
tee on Education and Labor
MAY 12, 1994
Additional sponsor: Mr. MCCLOSKEY
MAY 12, 1994
Committed to the Committee of the Whole House on the State of the Union
and ordered to be printed
A BILL
To make improvements in the Black Lung Benefits Act.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCE.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Black Lung Benefits Restoration Act of 1993’’.
(b) REFERENCE.—Whenever in this Act (other than
section 9(a)(1)) an amendment or repeal is expressed in
terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to
a section or other provision of the Black Lung Benefits
Act.
SEC. 2. BENEFIT OVERPAYMENT.
Part C is amended by adding at the end the following:
‘‘SEC. 436. (a) The repayment of benefits paid on
a claim filed under this part before the final adjudication
of the claim shall not be required if the claim was finally
denied, unless fraud or deception was used to procure the
payment of such benefits.
‘‘(b) The trust fund shall refund any payments made
to it as a reimbursement of benefits paid on a claim filed
under this part before the final adjudication of the claim,
unless fraud or deception was used to procure the payment
of such benefits.
‘‘(c) The trust fund shall reimburse an operator for
any benefits paid on a claim filed under this part before
the final adjudication of the claim if the claim was finally
denied.
‘‘(d) If on a claim for benefits filed under this part—
‘‘(1) the Secretary makes an initial determina-
tion—
‘‘(A) of eligibility, or
‘‘(B) that particular medical benefits are
payable, or
‘‘(2) an award of benefits is made,
the operator found to be the responsible operator under
section 422(h) shall, within 30 days of the date of such
determination or award, commence the payment of month-
ly benefits accruing thereafter and of medical benefits that
have been found payable. If an operator fails to timely
make any payment required by an initial determination
or by an award, such determination or award shall be con-
sidered final as of the date of its issuance.’’.
SEC. 3. EVIDENCE.
Section 422 (30 U.S.C. 932) is amended by adding
at the end the following:
‘‘(m)(1)(A) During the course of all proceedings on
a claim for benefits under this part, the results of not
more than 3 medical examinations offered by the claimant
may be received as evidence to support eligibility for bene-
fits.
‘‘(B) During the course of all proceedings on a claim
for benefits under this part, the responsible operator and
the trust fund—
‘‘(i) may each require, at no expense to the
claimant, not more than one medical examination of
the miner, and
‘‘(ii) may not each offer as evidence the results
of more than one medical examination of the miner.
‘‘(C) An administrative law judge may require the
miner to submit to a medical examination by a physician
assigned by the District Director if the administrative law
judge determines that, at any time, there is good cause
for requiring such examination. For purposes of this sub-
paragraph, good cause shall exist only when the adminis-
trative law judge is unable to determine from existing evi-
dence whether the claimant is entitled to benefits.
‘‘(D) The complete pulmonary evaluation provided
each miner under section 413(b) and any consultive eval-
uation developed by the District Director shall be received
into evidence notwithstanding subparagraph (A) or (B).
‘‘(E) Any record of—
‘‘(i) hospitalization for a pulmonary or related
disease,
‘‘(ii) medical treatment for a pulmonary or re-
lated disease, and
‘‘(iii) a biopsy or an autopsy,
may be received into evidence notwithstanding subpara-
graph (A) or (B).
‘‘(2) In addition to the medical examinations author-
ized by paragraph (1), each party may submit one inter-
pretive medical opinion (whether presented as documen-
tary evidence or in oral testimony) reviewing each clinical
study or physical examination (including a consultive read-
ing of a chest roentgenogram, an evaluation of a blood
gas study, and an evaluation of a pulmonary function
study) derived from any medical examination or contained
in a record referred to in paragraph (1)(E).
‘‘(3) A request for modification of a denied claim
under section 22 of the Longshore and Harbor Workers’
Compensation Act, as made applicable to this Act by sub-
section (a) of this section, shall be considered as if it were
a new claim for the purpose of applying the limitations
prescribed by paragraphs (1) and (2).
‘‘(4) The opinion of a miner’s treating physician, if
offered in accordance with paragraph (1)(A), shall be
given substantial weight over the opinion of other physi-
cians in determining the claimant’s eligibility for benefits
if the treating physician is board-certified in a specialty
relevant to the diagnosis of total disability or death due
to pneumoconiosis.
‘‘(5) For purposes of this subsection, a medical exam-
ination consists of a physical examination and all appro-
priate clinical studies (not including a biopsy or an au-
‘‘(3) A widow or widower may not receive an aug-
mentation in survivor benefits on any basis arising out of
a remarriage of the widow or widower.’’.
SEC. 5. RESPONSIBLE OPERATOR.
Section 422(h) (30 U.S.C. 932(h)) is amended by in-
serting ‘‘(1)’’ after ‘‘(h)’’ and by adding at the end the
following:
‘‘(2)(A) Prior to issuing an initial determination of
eligibility, the Secretary shall, after investigation, notice,
and a hearing as provided in section 19 of the Longshore
and Harbor Workers’ Compensation Act, as made applica-
ble to this Act by subsection (a) of this section, determine
whether any operator meets the Secretary’s criteria for li-
ability as a responsible operator under this Act. If a hear-
ing is timely requested on the liability issue, the decision
of the administrative law judge conducting the hearing
shall be issued not later than 120 days after such request
and shall not be subject to further appellate review.
‘‘(B) If the administrative law judge determines that
an operator’s request for a hearing on the liability issue
was made without reasonable grounds, the administrative
law judge may assess the operator for the costs of the pro-
ceeding (not to exceed $750).’’.
SEC. 6. ATTORNEY FEES.
(a) ELIGIBILITY FOR FEES.—Section 422 (30 U.S.C.
932), as amended by section 4(b), is amended by adding
at the end the following:
‘‘(p)(1) If in any administrative or judicial proceeding
on a claim for benefits a determination is made that a
claimant is entitled to such benefits, the claimant shall
be entitled to receive all reasonable costs and expenses (in-
cluding expert witness and attorney’s fees) incurred by the
claimant in such proceeding and in any other administra-
tive or judicial proceeding on such claim occurring before
such proceeding.
‘‘(2) In the case of a proceeding held with respect
to such claim—
‘‘(A) the person or Board which made the de-
termination that the claimant is entitled to benefits
in an administrative proceeding and any other per-
son or Board which made a prior determination in
an administrative proceeding on such claim, or
‘‘(B) the court in the case of a judicial proceed-
ing,
shall determine the amount of all costs and expenses (in-
cluding expert witness and attorney’s fees) incurred by the
claimant in connection with any such proceeding and shall
assess the operator responsible to the claimant for such
costs and expenses which are reasonable or if there is not
an operator responsible to the claimant, shall assess the
fund for such costs and expenses.
‘‘(3) The determination of such costs and expenses
shall be made within 60 days of the date the claimant sub-
mits a petition for the payment of such costs and expenses
to a person, the Board, or court which made a determina-
tion on the claimant’s claim. The person, Board, or court
receiving such petition shall take such action as may be
necessary to assure that such costs and expenses are paid
within 45 days of the date of the determination of such
costs and expenses unless a motion to reconsider—
‘‘(A) the amount of such costs and expenses, or
‘‘(B) the person liable for the payment of such
amount,
is pending.
‘‘(4) If an operator pays costs and expenses assessed
under paragraph (1) and if the claimant for whom such
costs and expenses were paid is determined in a later pro-
ceeding not to be eligible for benefits under this part, the
fund shall pay the operator the amount paid for such costs
and expenses.
‘‘(5) Section 28(e) of the Longshore and Harbor
Workers’ Compensation Act shall apply with respect to
any person who receives costs and expenses which are paid
under this subsection on account of services rendered a
claimant.’’.
(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall apply only with respect to claims
which are filed for the first time after the date of the en-
actment of this Act and shall not apply with respect to
any claim which is filed before such date and which is
refiled under section 8 of this Act after such date.
SEC. 7. ADMINISTRATION.
(a) APPEALS TO THE BENEFITS REVIEW BOARD.—
No appeal of an order in a proceeding under the Black
Lung Benefits Act may be made by a claimant or respond-
ent to the Benefits Review Board unless such order has
been made by an administrative law judge.
(b) ACQUIESCENCE.—The Secretary of Labor may
not delegate to the Benefits Review Board the authority
to refuse to acquiesce in a decision of a Federal court.
SEC. 8. REFILING.
Any claim filed under the Black Lung Benefits Act
after January 1, 1982, but before the date of the enact-
ment of this Act, may be refiled under such Act after the
date of the enactment of this Act for a de novo review
on the merits.
SEC. 9. DEFINITIONS.
(a) COKE OVENS.—