[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1781 Introduced in Senate (IS)]
103d CONGRESS
1st Session
S. 1781
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 Labor and Human Resources
_______________________________________________________________________
A BILL
To make improvements in the Black Lung Benefits Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives 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''.
(b) Reference.--Whenever in this Act (other than section 9(a) (1),
10, 11, or 12) 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 (30 U.S.C. 901 et seq.).
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 determination--
``(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 monthly 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 considered 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 and 3 interpretations of chest roentgenograms offered by
the claimant may be received as evidence to support eligibility for
benefits.
``(B) During the course of all proceedings on a claim for benefits
under this part, the responsible operator or the trust fund--
``(i) may require, at no expense to the claimant, that the
claimant undergo certain medical examinations, but the
responsible operator or trust fund may not submit or require
more medical examinations than are conducted and submitted
during the course of all proceedings by the claimant; and
``(ii) may offer into evidence the set of results of one
chest roentgenogram for each set of chest roentgenogram results
that are offered into evidence by the claimant.
``(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 subparagraph, good cause shall exist only when the administrative
law judge is unable to determine from existing evidence whether the
claimant is entitled to benefits.
``(D) The complete pulmonary evaluation provided each miner under
section 413(b) and any consultative evaluation 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 related
disease; and
``(iii) a biopsy or an autopsy,
may be received into evidence notwithstanding subparagraph (A) or (B).
``(2) In addition to the medical examinations authorized by
paragraph (1), each party may submit not more than one interpretive
medical opinion whether presented as documentary evidence or in oral
testimony. Such medical opinion may review other evidence derived from
chest roentgenograms, blood gas studies, or pulmonary function studies
contained in the reports offered under this subsection.
``(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 subsection (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 physicians 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 examination
consists of a physical examination and all appropriate clinical studies
(not including a biopsy or an autopsy) related to the diagnosis of
total disability or death due to pneumoconiosis.''.
SEC. 4. SURVIVOR BENEFITS.
(a) Death.--Section 422 (30 U.S.C. 932), as amended by section 3,
is amended by adding at the end the following:
``(n) If an eligible survivor files a claim for benefits under this
part and if the miner--
``(1) was receiving benefits for pneumoconiosis pursuant to
a final adjudication under this part; or
``(2) was totally disabled by pneumoconiosis at the time of
the miner's death,
the miner's death shall be considered to have occurred as a result of
the pneumoconiosis, unless the miner's death was the result of an event
that had no medical connection with the pneumoconiosis.''.
(b) Rules for Widows and Widowers.--Section 422 (30 U.S.C. 932), as
amended by subsection (a), is amended by adding at the end the
following:
``(o)(1) A widow or widower of a miner who was married to the miner
for less than 9 months at any time preceding the miner's death is not
qualified to receive survivor benefits under this part unless the widow
or widower was the natural or adoptive parent of the miner's child.
``(2) The widow or widower of a miner is disqualified to receive
survivor benefits under this part if the widow or widower remarries
before attaining the age of 50.
``(3) A widow or widower may not receive an augmentation 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 inserting ``(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 applicable to this Act by subsection (a) of
this section, determine whether any operator meets the Secretary's
criteria for liability as a responsible operator under this Act. If a
hearing 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 proceeding (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 (including expert witness and attorney's fees)
incurred by the claimant in such proceeding and in any other
administrative 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 that made the determination that
the claimant is entitled to benefits in an administrative
proceeding and any other person or Board that made a prior
determination in an administrative proceeding on such claim; or
``(B) the court in the case of a judicial proceeding,
shall determine the amount of all costs and expenses (including 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 that 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 submits a petition for the
payment of such costs and expenses to a person, the Board, or court
that made a determination 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 proceeding 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 that 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 that are filed for the first time
after the date of the enactment of this Act and shall not apply with
respect to any claim that is filed before such date and that 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 respondent 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 enactment 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.--
(1) Federal mine safety and health act of 1977.--Section 3
of the Federal Mine Safety and Health Act of 1977 (30 U.S.C.
802) is amended--
(A) in subsection (d), by inserting before the
semicolon the following: ``or who operates a coke oven
or any machine shop or other operation reasonably
related to the coke oven'';
(B) in subsection (g), by inserting before the
semicolon the following: ``or working at a coke oven or
in any other operation reasonably related to the
operation of a coke oven''; and
(C) in subsection (h)(2), by inserting before the
semicolon the following: ``and includes a coke oven and
any operation, structure, or area of land reasonably
related to the operation of a coke oven''.
(2) Black lung benefits act.--The first sentence of section
402(d) (30 U.S.C. 902(d)) is amended by inserting before the
period the following: ``or who works or has worked at a coke
oven or in any other operation reasonably related to the
operation of a coke oven''.
(b) Pneumoconiosis.--Section 402(b) (30 U.S.C. 902(b)) is amended--
(1) by adding after ``sequelae'' the following: ``which
disease or sequelae is restrictive or obstructive or both'';
and
(2) by striking out ``coal mine'' and inserting in lieu
thereof ``coal mine or coke oven''.
SEC. 10. BENEFITS REVIEW BOARD.
Section 21(b)(1) of the Longshoremen's and Harbor Workers'
Compensation Act (33 U.S.C. 921(b)(1)) is amended--
(1) by inserting after the first sentence the following new
sentence: ``The Secretary shall appoint and fix the
compensation of the Benefits Review Board members without
regard to the provisions of title 5, United States Code,
governing appointments in the competitive service, and without
regard to the provisions of chapter 51 and subchapter III of
chapter 53, relating to classification and the General Schedule
pay rates, and without regard to chapter 75, relating to
adverse actions.'';
(2) in paragraph (5), by striking the sixth sentence; and
(3) by adding at the end thereof the following new
paragraph:
``(6) The rate of compensation for members of the Board
shall not exceed the daily equivalent of the maximum rate
specified in section 5376 of title 5, United States Code.''.
SEC. 11. COMPENSATION FOR WORK INJURIES REGULATIONS.
Section 8149 of title 5, United States Code, is amended--
(1) in the second sentence by striking ``designated or'';
and
(2) by inserting after the second sentence the following
new sentences: ``The Secretary shall appoint and fix the
compensation of the Employee's Compensation Appeals Board
members without regard to the provisions of this title,
governing appointments in the competitive service, and without
regard to the provisions of chapter 51 and subchapter III of
chapter 53, relating to classification and the General Schedule
pay rates, and without regard to chapter 75, relating to
adverse actions. The rate of compensation for members of the
Board shall not exceed the daily equivalent of the maximum rate
specified in section 5376.''.
<all>