(a) General. Benefits are provided under the Act for or on behalf
of miners who are totally disabled due to pneumoconiosis, or who were
totally disabled due to pneumoconiosis at the time of death. For
purposes of this section, any nonpulmonary or nonrespiratory condition
or disease, which causes an independent disability unrelated to the
miner's pulmonary or respiratory disability, shall not be considered in
determining whether a miner is totally disabled due to pneumoconiosis.
If, however, a nonpulmonary or nonrespiratory condition or disease
causes a chronic respiratory or pulmonary impairment, that condition or
disease shall be considered in determining whether the miner is or was
totally disabled due to pneumoconiosis.
(b)(1) Total disability defined. A miner shall be considered
totally disabled if the irrebuttable presumption described in
Sec. 718.304 applies. If that presumption does not apply, a miner shall
be considered totally disabled if the miner has a pulmonary or
respiratory impairment which, standing alone, prevents or prevented the
miner:
(i) From performing his or her usual coal mine work; and
(ii) From engaging in gainful employment in the immediate area of
his or her residence requiring the skills or abilities comparable to
those of any employment in a mine or mines in which he or she
previously engaged with some regularity over a substantial period of
time.
(2) Medical criteria. In the absence of contrary probative
evidence, evidence which meets the standards of either paragraphs
(b)(2)(i), (ii), (iii), or (iv) of this section shall establish a
miner's total disability:
(i) Pulmonary function tests showing values equal to or less than
those listed in Table B1 (Males) or Table B2 (Females) in Appendix B to
this part for an individual of the miner's age, sex, and height for the
FEV1 test; if, in addition, such tests also reveal the values specified
in either paragraph (b)(2)(i)(A) or (B) or (C) of this section:
(A) Values equal to or less than those listed in Table B3 (Males)
or Table B4 (Females) in Appendix B of this part, for an individual of
the miner's age, sex, and height for the FVC test, or
(B) Values equal to or less than those listed in Table B5 (Males)
or Table B6 (Females) in Appendix B to this part, for an individual of
the miner's age, sex, and height for the MVV test, or
(C) A percentage of 55 or less when the results of the FEV1 test
are divided by the results of the FVC test (FEV1/FVC equal to or less
than 55%), or
(ii) Arterial blood-gas tests show the values listed in Appendix C
to this part, or
(iii) The miner has pneumoconiosis and has been shown by the
medical evidence to be suffering from cor pulmonale with right-sided
congestive heart failure, or
(iv) Where total disability cannot be shown under paragraphs
(b)(2)(i), (ii), or (iii) of this section, or where pulmonary function
tests and/or blood gas studies are medically contraindicated, total
disability may nevertheless be found if a physician exercising reasoned
medical judgment, based on medically acceptable clinical and laboratory
diagnostic techniques, concludes that a miner's respiratory or
pulmonary condition prevents or prevented the miner from engaging in
employment as described in paragraph (b)(1) of this section.
(c)(1) Total disability due to pneumoconiosis defined. A miner
shall be considered totally disabled due to pneumoconiosis if
pneumoconiosis, as defined in Sec. 718.201, is a substantially
contributing cause of the miner's totally disabling respiratory or
pulmonary impairment. Pneumoconiosis is a ``substantially contributing
cause'' of the miner's disability if it:
(i) Has a material adverse effect on the miner's respiratory or
pulmonary condition; or
(ii) Materially worsens a totally disabling respiratory or
pulmonary impairment which is caused by a disease or exposure unrelated
to coal mine employment.
(2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of
this section, proof that the miner suffers or suffered from a totally
disabling respiratory or pulmonary impairment as defined in paragraphs
(b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by
itself, be sufficient to establish that the miner's impairment is or
was due to pneumoconiosis. Except as provided in paragraph (d), the
cause or causes of a miner's total disability shall be established by
means of a physician's documented and reasoned medical report.
(d) Lay evidence. In establishing total disability, lay evidence
may be used in the following cases:
(1) In a case involving a deceased miner in which the claim was
filed prior to January 1, 1982, affidavits (or equivalent sworn
testimony) from persons knowledgeable of the miner's physical condition
shall be sufficient to establish total (or under Sec. 718.306 partial)
disability due to pneumoconiosis if no medical or other relevant
evidence exists which
addresses the miner's pulmonary or respiratory condition.
(2) In a case involving a survivor's claim filed on or after
January 1, 1982, but prior to June 30, 1982, which is subject to
Sec. 718.306, affidavits (or equivalent sworn testimony) from persons
knowledgeable of the miner's physical condition shall be sufficient to
establish total or partial disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of the claimant
and/or his or her dependents who would be eligible for augmentation of
the claimant's benefits if the claim were approved.
(3) In a case involving a deceased miner whose claim was filed on
or after January 1, 1982, affidavits (or equivalent sworn testimony)
from persons knowledgeable of the miner's physical condition shall be
sufficient to establish total disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of any person who
would be eligible for benefits (including augmented benefits) if the
claim were approved.
(4) Statements made before death by a deceased miner about his or
her physical condition are relevant and shall be considered in making a
determination as to whether the miner was totally disabled at the time
of death.
(5) In the case of a living miner's claim, a finding of total
disability due to pneumoconiosis shall not be made solely on the
miner's statements or testimony.
(e) In determining total disability to perform usual coal mine
work, the following shall apply in evaluating the miner's employment
activities:
(1) In the case of a deceased miner, employment in a mine at the
time of death shall not be conclusive evidence that the miner was not
totally disabled. To disprove total disability, it must be shown that
at the time the miner died, there were no changed circumstances of
employment indicative of his or her reduced ability to perform his or
her usual coal mine work.
(2) In the case of a living miner, proof of current employment in a
coal mine shall not be conclusive evidence that the miner is not
totally disabled unless it can be shown that there are no changed
circumstances of employment indicative of his or her reduced ability to
perform his or her usual coal mine work.
(3) Changed circumstances of employment indicative of a miner's
reduced ability to perform his or her usual coal mine work may include
but are not limited to:
(i) The miner's reduced ability to perform his or her customary
duties without help; or
(ii) The miner's reduced ability to perform his or her customary
duties at his or her usual levels of rapidity, continuity or
efficiency; or
(iii) The miner's transfer by request or assignment to less
vigorous duties or to duties in a less dusty part of the mine.
