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-36- Ibid., sec. 411 (c).

In order to be eligible for the Federal benefits, the miner must have filed a claim for workmen's compensation unless such an act is, in the opinion of the Secretary of HEW, clearly futile. HEW decided that payments for black lung were to be treated as workmen's compensation benefits for the purpose of social security disability benefit off set.

The Federal Government was to take claims for and finance this benefit until December 31, 1972, but claims filed in 1972 would be transferred to the State programs at the end of 1972, the so-called part C program. As of Janu-ary 1, 1972, States with adequate workmen's compensation programs as judged by the Secretary of Labor would take over the cost of new claims. Coal mine operators would then be liable for the compensation payments if found re-sponsible, by regulations promulgated by the Secretary of Labor. In those States where the workmen's compensation did not come up to the statutory standards for the amount of benefits and the various eligibility standards of Federal law and regulation and where no liable operator can be found, the Federal Govern-ment would still be responsible for payments. Claims filed on or before De-cember 31, 1971 would be eligible for lifetime benefits from the Federal Gov-ernment, all other claims payments will terminate on December 30, 1976.

When a point of order was raised in the House stating that many of the provisions in the Conference report were not in either bill, it was ruled that the changed provisions were germane and proper for consideration by the Con-ference since such points were not in agreement in both bills.

BLACK LUNG BENEFITS ACT OF 1972

In 1972 Congress felt that it was necessary to delay implementation of part C of the Black Lung Act until after December 31, 1973. It believed that this additional time was needed in order for the States to create workmen's compensation plans which would comply with Federal standards. The termi-nation date of part C was also extended from 1976 to 1981. So payments under this part will be made after this time.

The conditions of eligibility were liberalized. The distinction between underground and aboveground mines for the purpose of disability payments was removed ; thus, miners who worked in an aboveground mine can also collect benefits if found to be disabled by pneumoconiosis.

Congress was concerned over the high rate of denials of black lung claims. The Senate Labor and Public Welfare Committee report stated that the SSA definition of disability "is unrealistic when applied to coal miners, if it results in the denial of claims of miners who for medical reasons can no longer be expected to work in the mines and for whom there is no, too often, other realistic employment opportunity * * *." -37- The new more occupationally oriented definition of disability stipulates that a miner is to be con-sidered disabled "u-hen -sic- pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time." (sec. 402(f)).

-37- S. Rept. No. 743, 92d Cong., p. 16.

This amendment added another rebuttable presumption of disability to the two other such presumptions found in the Federal Coal Mine Health and Safety Act of 1969. The new presumption (sec. 411 (c) (4)) states:

if a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram -X-ray- submitted in connection with such miner's, his widow's, his child's, his parent's, his brother's, his sister's or his dependent's claim under this title and it is interpreted as negative with respect to the require-ments of paragraph (3) of this subsection, and if other evidence dem-onstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that, his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. In the case of a living miner, a wife's affidavit may not be used by itself to establish the presumption.

A miner may not now be denied benefits solely on the basis of roentgeno-gram. (Sec. 413(b).) The Senate Report stated that:

Testimony has further indicated that a negative X-ray is not proof positive of the absence of pneumoconiosis. Studies in addition to that of the Public Health Service confirm the existence of the disease by autopsy where a chest X-ray was negative, indicating an error of 25 percent m diagnosis.-38-

-38- Ibid., p. 10.

The 1972 Black Lung Act also liberalized benefits for dependents of dis-abled miners. Survivors of a miner who was totally disabled by pneumoconiosis at the time of his death may receive benefits even though the miner did not die from pneumoconiosis. Children of disabled miners are now eligible for benefits even if both parents are dead. Survivors coverage was also extended to de-pendent parents or to dependent brothers and sisters if no such parents existed, providing the miner was not survived by a wife or child.