20 CFR 718.204(b)(1)

20 CFR 718.204 - Total disability defined; criteria for determining total disability.

• Section Number: 718.204

• Section Name: Total disability and disability causation defined; criteria for determining total disability and total disability due to pneumoconiosis.

(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.