20 C.F.R. Part 727
PART 727-REVIEW OF PENDING AND DENIED CLAIMS UNDER THE BLACK LUNG BENEFITS REFORM ACT OF 1977
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Subpart E-Special Review Provisions Relating to Claims Pending Before an Administrative Law Judge or the Benefits Review Board
Section 435 of the act requires the Secretary of Labor to establish a consistent and effective procedure for the review of pending and denied claims in light of the amendments made by the Black Lung Benefits Reform Act of 1977. A number of the claims encompassed by section 435 are pending in the Office of Administrative Law Judges or before the Benefits Review Board. In order to insure a fair, orderly, and uniform disposition of claims pending before an administrative law judge or the Board which are subject to review under section 435 of the act, it has been determined that a return of many of these claims to the Office for expedited review is essential. This subpart sets forth the procedures to be followed with respect to claims which are within the jurisdiction of the Office of Administrative Law Judges or the Benefits Review Board for which review under section 435 of the act is required. In order to carry out the purposes of section 435, certain of the procedures ordinarily applicable in the adjudication of a claim are changed in certain specified instances. These changes are intended exclusively to facilitate a uniform administrative review of all pending and denied claims where such review is appropriate. Once the administrative review of these claims has been completed, the hearing and appeal procedures set forth in subpart D of part 725 of this subchapter shall be available to all parties to a claim. Additional evidence may be submitted in connection with a reviewed claim by any party as is considered appropriate by the district director or administrative law judge, and as is permitted by the act and this part.
§ 727.402 Claims pending in the Office of Administrative Law Judges.
(a) A claim which is pending in the Office of Administrative Law Judges may be subject to review by a district director under this part. This section sets forth criteria to be applied by the Chief Administrative Law Judge or an administrative law judge for determining whether a claim should be remanded to the district director for review under §727.108 or whether jurisdiction over the claim should be retained and sets forth a procedure to be followed if remand is required.
(b) A claim pending in the Office of Administrative Law Judges, which has been administratively denied by the district director and with respect to which no decision has been issued, may be remanded to the district director for consideration under §727.108, upon the request of the Director or the claimant, or by the administrative law judge on his or her own motion.
(c) A claim pending in the Office of Administrative Law Judges, which has been administratively approved by the district director and was forwarded for hearing at the request of a coal mine operator, shall be remanded to the district director for payment if the miner on whose total disability or death the claim is predicated was last engaged in coal mine employment before January 1, 1970. If the miner's last coal mine employment occurred on or after January 1, 1970, the Office of Administrative Law Judges shall retain jurisdiction over the claim and proceed to adjudicate the claimant's eligibility and the liability of the named coal mine employer in accordance with the provisions of this part. If jurisdiction over claim is retained under this paragraph the administrative law judge may, on his or her own motion or at the request of the claimant, remand the claim to the district director for consideration under §727.108 if further evidentiary de velopment of the claim is necessary The right to review provided by §727.108 is not available to a coal mine employer.
(d) A claim which has been denied by an administrative law judge and with respect to which no reconsideration or appeal is pending shall be automatically reviewed under §727.108.
(e) In the case of a claim with respect to which a decision has been issued by an administrative law judge but not filed with the district director, or if the decision has been filed and the time for appeal to the Benefits Review Board has not expired, the provisions of this paragraph shall apply. If appropriate such decision shall be immediately filed with the district director. If the decision denied the claimant's entitle ment to benefits, the claim shall be considered a pending claim subject to review by the district director under § 727.108, or subject to an appeal to the Benefits Review Board. If the decision awards benefits to the claimant, the claim shall be paid as provided in part 725 of this subchapter and an appeal to the Benefits Review Board may be taken. If such an appeal is taken, the Board shall consider the appeal under the applicable provisions of this part and may take such other action as is appropriate.
(f) Except as provided in paragraph (b) of this section, the remand of claim authorized by this section shall be made by order of the Chief Administrative Law Judge or an administrative law judge on his or her own motion, or on the motion of any party to the claim as is appropriate.
§ 727.403 Claims pending before the Benefits Review Board
(a) A claim pending before the Benefits Review Board which may be subject to review under this part shall be considered by the Board as the Board deems appropriate of in accordance with the authority given the Board by the act.
(b) If a claim subject to review under this part is pending before the Board, the Board may, on its own motion or at the request of the Director, remand such case to the district director for review under §727.108. The consent of the parties shall not be a prerequisite to a remand by the Board under this paragraph.
(c) A claimant whose claim is pending before the Board may request that his or her claim be remanded to the district director for consideration under § 727.108.
§ 727.404 Claims pending in a U.S. Court of Appeals.
A claim pending in a U.S. court of appeals which may be subject to review under this part shall be considered by the court as the court deems appropriate.
§ 727.405 Expedited review of claims.
(a) A claim which is remanded to the district director by an administrative law judge, the Benefits Review Board, or a court, under this subpart shall be reviewed under §727.108 and in accordance with the provisions of this part on a priority basis. Such claim shall be reviewed by the district director before any other claim, except for a claim remanded at an earlier date under this subpart. If no additional evidence is submitted or required with respect to a claim remanded under this subpart, the district director shall make initial findings (see §725.410 of this subchapter) on the claim within no more than 60 days from the date on which the claim was remanded.
(b) If, after appropriate notice has been given to the claimant of his opportunity to elect review by the district director in accordance with this subpart, or to proceed through the administrative appeals process, the claimant chooses not to elect review by the district director, the claimant's right to review provided by this part shall be considered fully satisfied, and no further review of the claim beyond that afforded by the appeals process shall be required under section 435 of the act.