20cfr725. 412

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Federal Register / Vol. 65, No. 245 / Wednesday, December 20, 2000 / Rules and Regulations

a denial by reason of abandonment shall
be deemed a finding that the claimant
has not established any applicable
condition of entitlement. If the claimant
timely requests a hearing, the district
director shall refer the case to the Office
of Administrative Law Judges in
accordance with § 725.421. Except upon
the motion or written agreement of the
Director, the hearing will be limited to
the issue of whether the claim was
properly denied by reason of
abandonment. If the hearing is limited
to the issue of abandonment and the
administrative law judge determines
that the claim was not properly denied
by reason of abandonment, he shall
remand the claim to the district director
for the completion of administrative
processing.
§ 725.410 Submission of additional
evidence.

(a) After the district director
completes the development of medical
evidence under § 725.405 of this part,
including the complete pulmonary
evaluation authorized by § 725.406, and
receives the responses and evidence
submitted pursuant to § 725.408, he
shall issue a schedule for the
submission of additional evidence. The
schedule shall contain the following
information:
(1) If the claim was filed by, or on
behalf of, a miner, the schedule shall
contain a summary of the complete
pulmonary evaluation administered
pursuant to § 725.406. If the claim was
filed by, or on behalf of, a survivor, the
schedule shall contain a summary of
any medical evidence developed by the
district director pursuant to
§ 725.405(c).
(2) The schedule shall contain the
district director’s preliminary analysis
of the medical evidence. If the district
director believes that the evidence fails
to establish any necessary element of
entitlement, he shall inform the
claimant of the element of entitlement
not established and the reasons for his
conclusions and advise the claimant
that, unless he submits additional
evidence, the district director will issue
a proposed decision and order denying
the claim.
(3) The schedule shall contain the
district director’s designation of a
responsible operator liable for the
payment of benefits. In the event that
the district director has designated as
the responsible operator an employer
other than the employer who last
employed the claimant as a miner, the
district director shall include, with the
schedule, a copy of the statements
required by § 725.495(d) of this part.
The district director may, in his

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discretion, dismiss as parties any of the
operators notified of their potential
liability pursuant to § 725.407. If the
district director thereafter determines
that the participation of a party
dismissed pursuant to this section is
required, he may once again notify the
operator in accordance with
§ 725.407(d).
(4) The schedule shall notify the
claimant and the designated responsible
operator that they have the right to
obtain further adjudication of the claim
in accordance with this subpart, and
that they have the right to submit
additional evidence in accordance with
this subpart. The schedule shall also
notify the claimant that he has the right
to obtain representation, under the
terms set forth in subpart D, in order to
assist him. In a case in which the
district director has designated a
responsible operator pursuant to
paragraph (a)(3), the schedule shall
further notify the claimant that if the
operator fails to accept the claimant’s
entitlement to benefits within the time
limit provided by § 725.412, the cost of
obtaining additional medical and other
necessary evidence, along with a
reasonable attorney’s fee, shall be
reimbursed by the responsible operator
in the event that the claimant
establishes his entitlement to benefits
payable by that operator. In a case in
which there is no operator liable for the
payment of benefits, the schedule shall
notify the claimant that the cost of
obtaining additional medical and other
necessary evidence, along with a
reasonable attorney’s fee, shall be
reimbursed by the fund.
(b) The schedule shall allow all
parties not less than 60 days within
which to submit additional evidence,
including evidence relevant to the
claimant’s eligibility for benefits and
evidence relevant to the liability of the
designated responsible operator, and
shall provide not less than an additional
30 days within which the parties may
respond to evidence submitted by other
parties. Any such evidence must meet
the requirements set forth in § 725.414
in order to be admitted into the record.
(c) The district director shall serve a
copy of the schedule, together with a
copy of all of the evidence developed,
on the claimant, the designated
responsible operator, and all other
operators which received notification
pursuant to § 725.407. The schedule
shall be served on each party by
certified mail.
§ 725.411
cases.

Initial adjudication in Trust Fund

Notwithstanding the requirements of
§ 725.410 of this part, if the district

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director concludes that the results of the
complete pulmonary evaluation support
a finding of eligibility, and that there is
no operator responsible for the payment
of benefits, the district director shall
issue a proposed decision and order in
accordance with § 725.418 of this part.
§ 725.412

Operator’s response.

(a)(1) Within 30 days after the district
director issues a schedule pursuant to
§ 725.410 of this part containing a
designation of the responsible operator
liable for the payment of benefits, that
operator shall file a response with
regard to its liability. The response shall
specifically indicate whether the
operator agrees or disagrees with the
district director’s designation.
(2) If the responsible operator
designated by the district director does
not file a timely response, it shall be
deemed to have accepted the district
director’s designation with respect to its
liability, and to have waived its right to
contest its liability in any further
proceeding conducted with respect to
the claim.
(b) The responsible operator
designated by the district director may
also file a statement accepting
claimant’s entitlement to benefits. If that
operator fails to file a timely response to
the district director’s designation, the
district director shall, upon receipt of
such a statement, issue a proposed
decision and order in accordance with
§ 725.418 of this part. If the operator
fails to file a statement accepting the
claimant’s entitlement to benefits within
30 days after the district director issues
a schedule pursuant to § 725.410 of this
part, the operator shall be deemed to
have contested the claimant’s
entitlement.
§ 725.413

[Reserved].

§ 725.414

Development of evidence.

(a) Medical evidence.
(1) For purposes of this section, a
medical report shall consist of a
physician’s written assessment of the
miner’s respiratory or pulmonary
condition. A medical report may be
prepared by a physician who examined
the miner and/or reviewed the available
admissible evidence. A physician’s
written assessment of a single objective
test, such as a chest X-ray or a
pulmonary function test, shall not be
considered a medical report for
purposes of this section.
(2)(i) The claimant shall be entitled to
submit, in support of his affirmative
case, no more than two chest X-ray
interpretations, the results of no more
than two pulmonary function tests, the
results of no more than two arterial

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