By CHRIS M. GREEN

On June 13, 2013, the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) issued Proposed Rules amending the regulations concerning the use of digital chest x-rays in Black Lung Benefits Claims.

The OWCP simultaneously published these amendments in the Final Rules section of the Federal Register. Accordingly, these amendments will go into effect unless the agency received significant adverse comment by the Aug. 12, 2013, deadline.

With these amendments, the OWCP proposes changes to regulations concerning the weight accorded to digital chest x-rays and sets forth requirements for how they are to be obtained. Over the past decade, the newer, less expensive and superior imaging based on digital technology has replaced the older film based chest x-rays.

To allow for the use of the newer digital x-rays, OWCP proposed these regulatory changes to bring digital chest x-rays to equal footing with film based chest x-rays by providing a parallel set of quality standards. The regulatory criteria have lagged behind the industry standard which has seen nearly universal replacement of film based x-ray systems with digital systems.

While claims allow the use of digital chest x-rays and analog copies of digital chest x-rays, such evidence is currently admissible only as “other medical evidence.” The party proffering this type of evidence is required to prove this type of evidence is relevant and medically acceptable. Under the proposed changes, this showing will be unnecessary contingent on the proposed quality standards being met.

While the proposed regulations are certainly a step in the right direction by the OWCP to adopt the use of this commonplace medical technology, a number of issues remain unclear.

Several comments to this proposed regulation have been filed in opposition to these changes, including comments from the American College of Radiology and Jackson Kelly PLLC.

Among other things, these comments raise concerns about the immediate ban on “converted” chest x-rays (analog copies of digital films), the cost which would be imposed on facilities seeking to comport to these standards, and the ability of facilities to comport to these standards before the implementation of the regulations.

These comments raise legitimate concerns about the immediate impact of the proposed regulations. The OWCP has yet to issue a finding concerning whether it plans to move forward with the proposed changes in light of these comments. These difficulties demonstrate the tension caused in rigid regulatory or administrative rules that are left behind by newer techniques or technologies developed after the standard was set in place. The ability to file meaningful comments to the regulations or rules that will govern workplaces or claims from workplace exposures is a necessary part of effective representation of clients.

Chris Green is an attorney in Jackson Kelly's Charleston office. This editorial appeared on the firm's Chemical Industry Update blog.

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