410.219—Filing a claim under State workmen's compensation law; when filing such claim shall be considered futile.
(a)
A claimant for benefits under this part must file a claim under the applicable State workmen's compensation law prior to a final decision on his claim for benefits under this part (see § 410.227(c)) except where the filing of a claim under such applicable State workmen's compensation law would clearly be futile.
(b)
The Administration shall determine that the filing of such a claim would clearly be futile when:
(3)
The maximum amount of compensation or the maximum number of compensation payments allowable under such law has already been paid; or
(4)
The claimant does not meet one or more conditions of eligibility for workmen's compensation payments under applicable State law; or
(5)
In any other situation the claimant establishes to the satisfaction of the Administration that the filing of a claim on account of pneumoconiosis would result as a matter of law in a denial of his claim for compensation under such law.
(c)
To be considered to have complied with the statutory requirement for filing a claim under the applicable State workmen's compensation law, a claimant for benefits under this part must diligently prosecute such State claim.
(d)
Where, but for the failure to file a claim under the applicable State workmen's compensation law, an individual's claim for benefits under this part would be allowed, the Administration shall notify the individual in writing of the need to file such State claim as a prerequisite to such allowance. Such claim, when filed within 30 days of the date such notice is mailed to the individual, will be considered to have been filed timely.
(e)
Where, on the other hand, a claim has not been filed under the applicable State workmen's compensation law, and the Administration determines that a claim for benefits under this part would be disallowed even if such a State claim were filed, the Administration shall make such determination as may be necessary for the adjudication of the individual's claim for benefits under this part pursuant to § 410.610.