DEPARTMENT
OF LABOR
Office
of Workers’ Compensation Programs
20
CFR Parts 1 and 30
RIN
1215-AB51
Performance
of Functions; Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended
AGENCY: Office of Workers’ Compensation
Programs, Employment Standards Administration, Labor.
ACTION: Final Rule.
SUMMARY: On
At the same time the
Department published the interim final regulations, it also invited written
comments and advice from interested parties regarding possible changes to those
regulations. This document amends
the interim final regulations based on comments that the Department
received.
DATES: Effective
Date: This
rule will be effective on
FOR
FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of
Workers’ Compensation Programs, Employment Standards Administration, U.S.
Department of Labor,
Room S-3524,
SUPPLEMENTARY
INFORMATION: The Department of Labor’s interim final
regulations implementing its responsibilities under the Energy Employees
Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C.
7384 et seq.), were published in the
Federal Register on June 8, 2005 (70
FR 33590). They took effect
immediately and included a 60-day period for comment. During the comment period, the Department
received 533 timely comments: two
joint comments from 39 congressional representatives; two from labor
organizations; four from attorneys; four from advocacy groups; one from a lay
representative; one from DOE; one from a DOE contractor; and 518 from
individuals. The Department also
received untimely comments from one physician, one attorney, one advocacy group,
the
Some minor changes have been
made to the interim final regulations that did not result from any
comments. One such change is the
addition of new language to § 30.112(b) to recognize that pursuant to § 30.106,
entities other than DOE may be verifying alleged periods of employment that
claimants have reported to OWCP. A
second change is the addition of language to § 30.301(c) clarifying that OWCP
will also not issue a subpoena for the testimony of employees of the National
Institute for Occupational Safety and Health (NIOSH) or contractors of either
OWCP or NIOSH acting in their official capacities with respect to the EEOICPA
claims adjudication process. In
addition, the existing language of § 30.316(c) has been modified so that a
recommended decision on a claim that is pending for more than one year after the
date it was reopened for issuance of a new final decision will be considered a
final decision on that claim as of that date, and § 30.400(a) has been modified
to reflect the current practice of OWCP to pay for medically necessary treatment
of a primary cancer in claims where the accepted occupational illness or covered
illness is a secondary cancer.
When publishing a final rule
following a comment period, it is customary to publish only the changes that
have been made to the rule; however, in order to be more user-friendly, the
Department is publishing the entire rule, including the parts that have not been
changed. By doing so, only one
document containing all of the regulations and commentary needs to be consulted
rather than multiple documents.
I. Comments on the Interim Final
Regulations
The section numbers used in
the headings of the following analysis are those that were used in the interim
final regulations. Unless otherwise
stated, the section numbers in the text of the analysis refer to the numbering
used for the final regulations. No
comments were received with respect to part 1.
Section
30.5
One individual suggested
that the definition for the statutory term “Department of Energy facility” be
modified to more clearly identify the “list of facilities established by the
Department of Energy” referred to in the interim final regulation. To eliminate any confusion with respect to this list, and
as suggested by the comment, § 30.5(x) has been amended in this final rule to
specify which list of facilities the Department has adopted. Another individual believed that the
five-year latency period requirement for specified cancers listed in §
30.5(ff)(5) was “in error” and suggested that it be deleted. However, the latency period requirement
is contained within section 7384l(17)(A) of the Act and cannot be modified in
these regulations. Therefore, the
suggested change was not made. A
third individual suggested that § 30.5(gg) be modified to more clearly describe
the requirements for eligibility of survivors under Part E. Section 30.5(gg) is only intended to
inform readers that survivors must be alive to receive a payment. Because complete descriptions of the
requirements for eligibility of survivors under Part B and Part E of EEOICPA
already appear at § 30.500, the suggested change is unnecessary and was not
made.
Sections
30.100, 30.101, 30.102 and 30.103
One attorney pointed out
that while employees and survivors can use Forms EE-1 and EE-2 to file their
initial claims with OWCP, there was no form provided for filing a claim for an
alleged consequential illness or injury.
The absence of a specific form for claiming an alleged consequential
illness or injury is intentional since in those situations, OWCP would already
have all of the necessary factual information that could be requested by a
form. Claimants need only submit
written “words of claim” to OWCP, together with the type of supporting medical
evidence described in §§ 30.207(d), 30.215, 30.222(b), 30.226 or 30.232(c), to
file a claim for a consequential illness or injury. Therefore, no new form has been designed
and the suggested changes to §§ 30.100 and 30.101 were not
made.
Two individuals disputed the
provision in § 30.101(c) that a survivor must be alive to receive a payment
under the Act and noted that if all of the eligible survivors die before payment
can be made, no payment can be made to any other individual as the heir of a
deceased eligible survivor.
However, this result is required under both Parts B and E of EEOICPA
pursuant to sections 7384s(e)(1) and 7385s-3(c), which require that survivors
under both Part B and Part E must be alive at the time of payment, and cannot be
altered by regulation. Therefore,
the requested change to § 30.101(c) was not made.
Three advocacy groups
suggested that the provision in § 30.102 that OWCP will only adjudicate a claim
for an increased impairment rating if it is filed at least two years from the
date of the last award of impairment benefits is unreasonable and proposed that
the waiting period to be reduced to either one year or six months. The claim development process that OWCP
uses when it determines a covered Part E employee’s minimum impairment rating is
necessarily complex and usually takes a considerable amount of time to
complete. For example, the medical
evidence submitted in support of an alleged rating may not contain all of the
information that OWCP will need to determine an impairment rating. OWCP would then have to seek that
information from another source, or obtain an impairment evaluation by another
physician before it would be able to determine the extent of the alleged
permanent impairment based on the evidence in the case record. If claimants were permitted to apply for
an increased impairment rating sooner than two years after their prior award for
impairment benefits, the claims processing system would inevitably become less
efficient and claimants who have not had their initial impairment claims
adjudicated and who have not received benefits for their compensable permanent
impairments would necessarily have to wait even longer to receive a decision
from OWCP. Therefore, in order to
maintain an efficient system of adjudication for all claimants and to best use
its limited resources, OWCP concludes that the two-year waiting period should
remain in place and none of the suggested changes to this section have been
adopted.
One of these same advocacy
groups also noted that while § 30.103 requires claimants to use approved forms
when filing claims under Part E of EEOICPA, “the present forms do not allow for
claiming diseases other than cancer, berylliosis or silicosis.” On
regs/compliance/owcp/eeoicp/main.htm. Therefore, the suggested change to §
30.103 is unnecessary and has not been made.
Section
30.106
One individual questioned
whether DOE was in possession of sufficient employment data to enable it to
verify alleged periods of employment for “most” claims. OWCP does not dispute that there are a
number of facilities for which DOE does not have access to any employment
data. However, OWCP has developed a
number of alternative methods to be used for verifying alleged employment at
those facilities. In
acknowledgement of this situation, § 30.106 describes the various alternative
methods by which OWCP may seek to verify alleged periods of employment at those
facilities for which DOE has no employment data, and no change to this section
was made in the final rule.
Sections
30.111, 30.113 and 30.114
One individual and two labor
organizations questioned the description of the general burden of proof that all
claimants must meet in order to establish their entitlement to any compensation
under either Parts B or E of EEOICPA.
Section 30.111(a) describes the general burden of proof that claimants
must meet, “[e]xcept where otherwise provided in the Act and these regulations,”
with respect to all of the required elements involved in a claim. As one of these labor organizations
noted, there are differing burdens of proof between Parts B and E, as well as
between different claimed illnesses within a single Part of the Act. This fact, however, does not mean that
the description of the general burden
of proof in § 30.111(a) is incorrect.
OWCP is committed to helping claimants meet their burden of proof and is
aware that some claimants may have difficulty proving both the presence of and
their exposure to a toxic substance at a particular facility under Part E. In an effort to remedy this situation,
OWCP is currently developing exposure matrices that will compile information
provided by a variety of sources, including DOE, former worker medical survey
programs, and epidemiological studies.
For all of the DOE facilities, extensive documentation exists covering
thousands of toxic materials. The
matrices now being developed will be posted on our website and will be available
to claimants and their representatives.
While it is not possible to define precisely in a regulation how these
complex matrices will be used in each case, OWCP’s procedural guidance documents
will provide additional clarity in this regard, and those documents will also be
available to the public on our website.
Nevertheless, it would not be appropriate to relieve claimants of their
ultimate obligation to prove their claims, which is a standard requirement of
all state and federal workers’ compensation programs. Since Part E was intended to substitute
for the state workers’ compensation benefits that claimants could have sought
DOE’s assistance in obtaining under former Part D of EEOICPA, OWCP’s application
of standard workers’ compensation principles is appropriate and no changes were
made to § 30.111(a).
Another individual suggested
that OWCP amend § 30.111(c) to state that an affidavit submitted by a claimant
is not, in and of itself, sufficient to establish a period of alleged
employment. Section 30.111(c)
currently states that such affidavits “may be relied on in determining whether a
claim meets the requirements of the Act. . . .” However, since § 30.112(b)(3) already
makes clear that OWCP may reject a claim when the only evidence of covered
employment is a “self-serving affidavit,” the suggested change is unnecessary
and was not adopted in the final rule.
A third individual suggested that language be added to § 30.111 stating
that when OWCP requests a second opinion from a medical specialist, it will only
provide such specialist with copies of the “medical” evidence in the case file
to review instead of all “relevant” evidence in the file. This suggestion ignores the fact that
factual evidence from a case file may be highly relevant (e.g., evidence of exposure levels,
environmental assessments, etc.) to the probative value of the specialist’s
medical opinion and as a result, the requested change was not
made.
A third individual requested
that § 30.113(a) be changed to indicate that OWCP will accept various types of
“electronic” submissions in support of claims for compensation under EEOICPA,
while an advocacy group suggested that § 30.113(c) be changed due to its belief
that all statements regarding the substance of lost or destroyed factual or
medical evidence would be “self-serving” and therefore not acceptable. Both of these provisions have been in
effect since the issuance of the first final rule on
A fourth individual
disagreed with the general requirement in § 30.114 that claims for compensation
under EEOICPA be supported with medical evidence that establishes the existence
of the alleged occupational illness under Part B or covered illness under Part
E. However, these medical
requirements are derived from the statutory requirements in the Act itself and
cannot be altered through the rulemaking process. Therefore, the requested change to §
30.114 was not made.
Section
30.115
Two individuals asserted
that application of the dose reconstruction process discussed in § 30.115 of the
interim final regulations to Part E cancer claims would be neither just nor
fair, and one advocacy group asked how OWCP planned to adjudicate the claims of
employees with non-specified cancers (those not listed at § 30.5(ff)) at newly
designated Special Exposure Cohort worksites. With respect to the first of these two
concerns, the discussion of § 30.213 in the preamble to the interim final rule
described the scientific and administrative reasons why OWCP decided to use the
existing dose reconstruction process from Part B to adjudicate certain
radiogenic cancer claims filed under Part E, and the two commenters have not
presented any arguments challenging the underlying bases for that decision. As for the comment regarding OWCP’s
adjudication of non-specified cancer claims following an administrative addition
of a class of employees to the Special Exposure Cohort, this question involves
the manner in which the Department of Health and Human Services (HHS) defines
the new class of employees and the unique factual basis for its addition to the
Special Exposure Cohort. However,
since neither of these matters are within the jurisdiction of OWCP, they cannot
be addressed in the context of this rulemaking (see § 30.2(b)). For the above reasons, no changes were
made to § 30.115 in the final rule based on these three
comments.
Section
30.213
OWCP received 19 comments
regarding the operation of § 30.213 with respect to the 50 percent compensable
level of probability of causation (PoC) it will use to adjudicate claims for
radiogenic cancer under Part E of EEOICPA (three comments were received from
advocacy groups, 11 from individuals, two from congressional representatives,
one from a lay representative, and two from a single labor organization). These comments requested that OWCP lower
the compensability level below the fifty percent level that is used for Part B
claims, but gave no scientific or other rationale for setting the compensability
level at any particular point below 50 percent. Rather, the commenters base their
arguments on the fact that the statutory causation standard for Part E uses
language that differs from the language used for Part B. For the reasons set forth below, OWCP
has determined that it is more consistent with congressional intent and current
science to continue to use HHS’s regulations in making the determination
required by section 7385s-4(c)(1)(A) of the Act because those regulations
provide the only reasonable factual basis upon which OWCP can determine if it is
“at least as likely as not” that exposure to radiation at a DOE facility or RECA
section 5 facility was a “significant factor in aggravating, contributing to, or
causing” radiogenic cancer for which compensation is claimed under Part
E.
It is clear from the
scientific literature that it is not possible to definitively attribute any
individual’s cancer to any particular cause, and no commenter identified a
method of attribution. As noted in
Science Panel Report No. 6, Use of
Probability of Causation by the Veterans Administration in the Adjudication of
Claims of Injury Due to Ionizing Radiation, issued by the Committee on
Interagency Radiation Research and Policy Coordination of the Office of Science
and Technology Policy, Executive Office of the President (August 1988),
“[a]nalysis of medical findings cannot separate the ‘radiogenic cases’ from
those unrelated to radiation exposure; no ‘biological markers’ have yet been
identified that can unequivocally point to radiogenic cancers as distinct from
non-radiogenic cancers. An excess
incidence of cancer is identifiable in a statistical sense
only.”
It is, thus, not surprising
that Congress required the use of statistical probability in the determination
whether to compensate an individual with a claimed cancer under Part B. Under Part B, an individual will be
determined to have sustained “cancer in the performance of duty for purposes of
the compensation program if, and only if, the cancer [at issue] was at least as
likely as not related to employment
at the facility” (emphasis added), determined pursuant to guidelines based upon
radiation dose and “the upper 99 percent confidence interval of the probability
of causation in the radioepidemiological tables published under section 7(b) of
the Orphan Drug Act (42 U.S.C. 241 note),” as well as a number of other
factors. The technical
documentation prepared by HHS to explain the computer program used to make this
calculation similarly notes that “it is not possible to determine, for a given
individual, whether his or her cancer resulted from workplace exposure to
ionizing radiation.”
(NIOSH-Interactive RadioEpidemiological Program (IREP) Technical
Documentation,
Because it is impossible to
determine the extent to which any individual factor contributed to the
development of cancer, OWCP has concluded that the only way to comply with the
statutory mandate in Part E is, in effect, to interpret “a significant factor”
as including any factor. Accordingly, the determination made
pursuant to HHS regulations issued under Part B whether there is a 50 percent
probability that radiation was a factor in the development of cancer (i.e., that in the absence of
work-related exposure to radiation, the cancer would not have occurred at all)
will be deemed sufficient to establish that radiation was not only a factor, but
was also a significant factor “in aggravating, contributing to, or causing” the
cancer in question.
The position taken by the
commenters appears to be based on a misunderstanding of the test used by
Congress in Part B of EEOICPA for determining coverage for cancer due to
exposure to radiation. The standard
used is whether a cancer suffered by a worker is “related to” his or her
employment at a covered facility.
The commenters suggest that Part B awards benefits only for cancers
caused by exposure to radiation, while Part E was intended to award benefits
where the cancer was either caused by or contributed to by exposure to
radiation. This misunderstanding
may well stem from use of the term “probability of causation” to describe the
results of the statistical determination made by the radioepidemiological tables
used in the process. By using the
term “related to” in Part B, however, Congress encompassed all cancers for which
there is a statistical probability that exposure to radiation was a factor in
the development of the cancer.
Despite the use of the word “causation” in the term “probability of
causation,” the determination reached is not an individual determination of the
mechanism of cause and effect leading to a particular cancer, which as explained
above is not scientifically possible, but a statistical prediction of the
probability that the cancer would not have occurred in the absence of exposure
to radiation. Thus, the HHS
technical documentation describes PoC as “the likelihood that an existing cancer
resulted from that [workplace radiation] exposure.” (NIOSH-IREP Technical Documentation,
Further, it should be noted
that the epidemiological method utilized in this determination is actually far
more favorable towards claimants than merely requiring a determination that
radiation exposure was “at least as likely as not” a significant factor. The method
specified by Congress for Part B and adopted by OWCP for Part E requires that
OWCP use the upper 99 percent confidence interval to determine whether cancers
of employees are to be compensable. In essence, a confidence interval
indicates the likelihood that a statistical sample will reflect actual results
and is often demonstrated in terms of a margin of error (e.g., +/- 5 percentage points in a
poll). The precise statistical
definition of the 99 percent confidence interval is that if a study or poll were
conducted 100 times, the results would be within the sample’s margin of error 99
times and one time the results would be either higher or lower. For purposes of the calculations
performed under Parts B and/or E of EEOICPA, an upper 99 percent confidence
interval establishes a significant margin of error in favor of claimants for
whether the exposures that appeared at least as likely as not to cause cancer
actually did. That is, use of this
confidence interval means that there is only a one percent chance that the
exposure level has been underestimated and a 99 percent chance that it has been
overestimated. Because of this
extremely claimant-favorable margin of error, we believe that it is reasonable
to conclude that the use of this method for adjudicating radiogenic cancer
claims under Part E will provide compensation in any case in which it is at least as likely as not that an employee would not
have suffered cancer absent his or her employment-related exposure to
radiation.
This conclusion finds
further support in the Report of the
NCI-CDC Working Group to Revise the 1985 NIH Radioepidemiological Tables
(September 2003), which found that the PoC model was a viable method to
adjudicate claims for radiation-related instances of cancer that appropriately
summarized “the likelihood that prior radiation exposure might be causally
related to cancer occurrence.” The
report described the Department of Veterans Affairs’ use of PoC calculated at
the 99 percent credibility limit (the term used in that report for confidence
interval) as “highly unlikely to exclude persons with meritorious claims. However it is likely to award many
persons whose true [PoC’s] are very much less than 50 percent.” For example, as noted in that report,
because of the substantial margin for error established by use of the 99 percent
confidence level, a cancer that is actually nine percent likely to have been
caused by the alleged exposure, but for which data is limited, could yield a PoC
of 82 percent under the HHS PoC guidelines.
OWCP also believes that
utilizing the 50 percent PoC process for Part E is more likely to result in a
scientifically valid and consistent determination process than attempting to
reach a determination based on medical opinions from physicians that inevitably
contain a significant speculative component. Use of the PoC guidelines for claims
under both Part B and Part E allows OWCP to adjudicate the entitlement of
radiogenic cancers that are potentially compensable under both Part B and Part E
in a uniform manner. Any process
for determining coverage of claims for radiogenic cancers that would yield
inconsistent results as to whether that cancer is compensable under Parts B and
E is unlikely to be understood or accepted by claimants and other
stakeholders.
The commenters’ argument
that eligibility for a radiogenic cancer under Part E should be based on a lower
than 50 percent PoC level apparently is based on their interpretation of the
language of section 7385s-4(c)(1)(A), which requires a determination that it is
“at least as likely as not that exposure to a toxic substance at a Department of
Energy facility was a significant factor in aggravating, contributing to, or
causing” the claimed cancer. While
Congress utilized different terminology to establish the test for compensation
in Part E and Part B, the differences reflect the fact that Part B was intended
to establish narrowly drawn tests for specific medical conditions, such as
radiogenic cancer or chronic beryllium disease. Part E, on the other hand, sets forth a
broad test that must be used to determine the compensability of a virtually
unlimited array of illnesses potentially caused by exposure to the tens of
thousands of toxic substances present at Department of Energy facilities. While there is no way to distinguish
between causation and contribution in regard to cancer related to exposure to
radiation (because it is only possible to determine the statistical probability
that, absent work-related exposure to radiation, the employee in question would
not have incurred the cancer or cancers from which he or she suffered), Part E
applies to other types of illnesses for which the concept of “contribution” may
be highly relevant. Indeed, unlike
the case of radiogenic cancer, it is possible to determine that toxic exposure
contributed to a number of other illnesses or that other pre-existing illnesses
were aggravated by toxic exposure.
Therefore, the difference in the statutory language between the standard
in Part B and the standard in Part E does not indicate that Part E was intended
to establish a more lenient test, but can be explained by the fact that it was
designed to cover a wide variety of situations and circumstances, as opposed to
the more narrowly drawn Part B radiogenic cancer standard, where no difference
existed between causation and contribution.
It should also be noted that
the regulation specifies that the PoC model will be determinative under Part E
only with respect to claims where the
sole alleged condition is radiogenic cancer. When a claim for cancer under Part E
cannot be accepted based on exposure to radiation alone because the PoC was
determined to be less than 50 percent, the claimant is provided the opportunity
to establish that the cancer was caused by a combination of exposure to
radiation and exposure to one or more other toxic substances. OWCP will adjudicate those claims for
cancer allegedly due to exposure to radiation combined with exposure to one or
more other toxic substances using the eligibility criteria for other covered
illnesses in §§ 30.230 through 30.232.
As a result, no changes were made to § 30.213(c) in the final
rule.
Sections
30.230, 30.231 and 30.232
One labor organization
suggested that the statutory terms “aggravated,” “contributed to” and “caused”
from one portion of the Part E causation standard appearing in section
7385s-4(c)(1)(A) of EEOICPA be defined in § 30.230 of the final rule so it will
be “possible to determine how DOL will adjudicate claims.” However, these statutory terms have a
long and settled history in workers’ compensation law, and OWCP believes any
attempt to further define those terms (which involve matters of administrative
discretion and professional medical opinion) would only lead to increased
confusion. As a result, § 30.230
has not been amended in the final rule.
Two comments from
congressional representatives, three from advocacy groups and one from an
individual asserted that it would be extremely difficult for claimants to
satisfy their burden of proof under § 30.231 to establish both the presence of a
toxic substance and the employee’s exposure to the substance without the
development of site exposure assessments of toxic substances. OWCP shares this concern and is
committed to studying all of the available information pertaining to these sites
and making publicly available a listing of the toxic substances present at such
sites. The information compiled
from these studies will be accepted as probative evidence in determining the
eligibility of claimants, barring extraordinary and unusual circumstances, and §
30.231(b) has been modified to clarify OWCP’s policies regarding this
matter. However, the remainder of
the suggested changes to the burden of proof described in § 30.231 have not been
adopted.
One advocacy group objected
to the requirement in § 30.232(a)(2) that each claimant under Part E provide a
signed medical release authorizing the release of any diagnosis, medical opinion
or medical records documenting the employee’s alleged covered illness and that
it resulted from exposure to a toxic substance. The advocacy group is concerned that in
some cases such documents may no longer exist. OWCP is aware of this problem and has
established procedures in § 30.113 by which a claimant can nevertheless meet
this requirement through the submission of affidavits attesting to medical
evidence that was contained in documents that no longer exist. However, a signed medical release is
needed in all Part E claims so OWCP may thoroughly investigate the claim. Thus, the suggestion to drop this
requirement was not adopted. The
same advocacy group and another advocacy group suggested that the requirement
contained in § 30.232(c) that a claimant establish that a covered Part E
employee suffered an injury, illness, impairment or disease as a consequence of
a covered illness be deleted. These
commenters feel that OWCP claims examiners should have enough documentation and
medical evidence in the case file to made these determinations without requiring
the submission of additional medical evidence. However, the nature of these
consequential conditions is that they only arise subsequent to the development
of an underlying condition, thus necessitating the submission of more recent
medical evidence establishing their causal relationship to an existing covered
illness. Accordingly, the
suggestion was not adopted in the final rule.
Section
30.300
Two comments from
individuals, two from congressional representatives and one from an advocacy
group suggested that OWCP use Physicians Panels to make determinations when
there is a dispute with regard to issues of causation or the degree of
impairment. After considering the
use of Physicians Panels in the adjudication of Part E claims, OWCP decided in
the interim final rule to base the formal adjudicatory and review structure for
those claims on the same successful and streamlined structure that has been used
for Part B claims since 2001. The
use of Physicians Panels as deciding bodies for claims submitted to DOE under
former Part D of EEOICPA proved to be both inefficient and extremely
time-consuming. Nevertheless, OWCP
will use a full range of qualified medical specialists to assist in the
development of claims, especially the kind of complex cases these comments
discuss. When a claim involves
extreme complexity and multiple medical disciplines, OWCP may refer the claimant
to a panel of physicians for a medical evaluation. Once a report is received, OWCP’s
adjudicatory staff will then consider it when they make a decision on the
claim. OWCP continues to believe
that this type of claims adjudication process provides for a more efficient and
expeditious handling of medical disputes and the application of more uniform
criteria to resolve such disputes.
Thus, the suggested changes have not been adopted.
The same advocacy group
suggested that OWCP state in the regulations the processes it will follow with
respect to classified information that may be pertinent to a claim under
EEOICPA, and urged that in situations where the claimant or his or her
representative lacked the requisite security clearances, OWCP should ask the
Another advocacy group
suggested that the claims adjudication processes described in § 30.300 be
altered to include a review by an “independent entity” like an administrative
law judge. This same suggestion was
made by several commenters with respect to this section as it appeared in the
first interim final rule governing its administration of the Act that OWCP
published on May 25, 2001 (66 FR 28948).
As it noted when it subsequently published the first final rule governing
its administration of EEOICPA on December 26, 2002 (67 FR 78874), OWCP believed
that utilizing administrative law judges or another type of independent review
body would unnecessarily complicate and delay the claims adjudication process to
the detriment of claimants. The
commenter did not present any new
reason not previously considered by OWCP when it originally decided to retain
the adjudicatory structure described in § 30.300, or any evidence of problems
with it since its inception in 2001.
Therefore, the suggested change to this section of the regulations was
not adopted.
Sections
30.301 and 30.302
One advocacy group suggested
that OWCP extend the ability to request issuance of a subpoena to include Part E
claims as well as Part B claims, and that this ability should be extended to all
stages of the claims adjudication process.
Section 30.301 indicates that a claimant may request that a Final
Adjudication Branch (FAB) reviewer issue a subpoena in connection with a claim
under Part B of EEOICPA. The
statutory authority underlying this section is derived from section 7384w, which
only applies to claims filed under Part B; Part E does not contain a similar
provision. Therefore, OWCP does not
have authority to extend the ability to request a subpoena to claimants under
Part E. Further, OWCP has found it
to be more efficient to limit the use of subpoenas by claimants to the portion
of the claims adjudication process that includes the right to request an oral
hearing, i.e., the portion before the
FAB. OWCP claims examiners
regularly assist claimants in obtaining relevant documents and information in
the early development of claims under EEOICPA, and adding subpoena requests to
this assistance would not appear to be either efficient or productive. Therefore, the suggested changes to §
30.301 have not been adopted.
One attorney suggested that
§ 30.302 be modified so that claimants will be relieved of their obligation to
pay the costs associated with subpoenas they have requested when the subpoenaed
witness submits evidence into the case record that is relevant to the claimant’s
case and where the witness failed before the hearing to provide written evidence
after being requested to provide such evidence by the claimant. OWCP believes that the suggested
modification erroneously presumes that there will likely be situations where a
witness will refuse to provide requested evidence without issuance of a subpoena
by a FAB reviewer. This has not
been the experience of OWCP in other benefit programs it administers, and OWCP
does not contemplate that it will occur in its future administration of Part
B. Up to the present time, OWCP has
not encountered significant difficulty obtaining the factual or medical evidence
necessary for it to adjudicate these claims, and there is no reason to think
that these sorts of difficulties will occur in the future. Therefore, the suggestion to modify §
30.302 was not adopted in the final rule.
Section
30.303
DOE commented that the
60-day period within which it was required to respond to a request from OWCP for
information or documents relevant to a claim under Part E of the Act in § 30.303
was unreasonable, and noted that it would not be able to respond to such a
request in a timely manner if the evidence needed to be reviewed for
declassification purposes. As an
alternative, DOE proposed that the standard for compliance with such a request
be “as soon as possible.” While it
does not dispute the validity of this concern, OWCP believes that the suggested
proposal would effectively remove the time period for response from §
30.303. However, in order to
accommodate DOE’s belief that it requires additional time to comply with these
necessary requests, OWCP has amended § 30.303(a) to provide DOE with 90 days
within which to respond.
Sections
30.307 and 30.316
One attorney suggested that
§§ 30.307(a) and 30.316(e) be amended to provide that a copy of the recommended
decision and the final decision be sent to both the claimant and the claimant’s
representative. These sections
currently provide that the recommended decision and final decision be sent to
the claimant, unless he or she has a representative. In such a case, the recommended decision
and final decision are to be sent only to the representative. OWCP believes that these suggestions
have merit, and also notes that this has been the administrative practice of the
program for some time. Thus, §§
30.307(a) and 30.316(e) have been amended in the final rule to provide that OWCP
will send a copy of the recommended decision and the final decision on a claim
to both the claimant and the claimant’s representative, if
any.
Section
30.315
One attorney suggested that
§ 30.315 be amended to permit, at the discretion of the FAB reviewer, a
postponement of a hearing if the claimant’s representative provides reasonable
notice that the representative has a medical reason that prevents his or her
attendance at the claimant’s hearing.
The interim final rule permits such a postponement where the claimant is
prevented from attending the hearing for medical reasons, and it is the current
practice of OWCP to permit such postponements for representatives whose
attendance is prevented for the same reasons. Thus, § 30.315(b) has been amended as
suggested by the commenter.
Section
30.320
One attorney suggested that
§ 30.320(b) be amended to require the reopening of a final adverse decision on a
claim if the claimant submits new evidence of a medical condition or discovers
additional medical reports. The
section currently requires the Director for Energy Employees Occupational
Illness Compensation to a reopen a final decision on a claim if he concludes
that the claimant has submitted new and material evidence with regard to either
covered employment or exposure to a toxic substance, or identifies either a
material change in the PoC guidelines, a material change in the dose
reconstruction methods or a material addition of a class of employees to the
Special Exposure Cohort. The
experience of OWCP with respect to the processing and adjudicating of claims
based on occupational or covered illnesses is that new medical evidence of a
condition is easily obtained and, upon consideration, rarely sufficient to
warrant the reversal of an earlier determination regarding a claimed
condition. To permit an automatic
reopening of a final decision based on such evidence would inevitably lead to
numerous frivolous reopenings and the attendant administrative inefficiencies
would deprive claimants with meritorious claims of the opportunity to have those
claims adjudicated in a timely manner.
It should be noted, however, that claims may be reopened on the basis of
new medical evidence by the Director under § 30.320(a), which permits the
Director, at his discretion, to reopen a final decision at any time. For these reasons, the suggestion
regarding § 30.320(b) has not been adopted.
Sections
30.400, 30.403, 30.404 and 30.405
OWCP received three comments
from advocacy groups, one from an attorney and two from congressional
representatives objecting to the wording in §§ 30.400, 30.403, 30.404 and 30.405
that suggested that there was no way for a claimant to administratively
challenge a denial of a particular medical benefit. The wording in question was intended to
describe the process that OWCP’s medical billing contractor uses to inform
claimants of decisions on medical bills that are submitted for payment. However, this wording incorrectly
suggested that there was no administrative method by which a claimant could
challenge an adverse medical billing determination by OWCP’s contractor. To rectify this situation, and as
suggested by the commenters, §§ 30.400, 30.403, 30.404 and 30.405 have been
changed to indicate that a claimant may administratively challenge an adverse
medical billing determination by utilizing the internal adjudicatory processes
described in subpart D of the regulations.
Sections
30.410 and 30.411
One advocacy group asked
that OWCP clarify the provisions in §§ 30.410(b) and 30.411(c) regarding
disruptions of directed medical examinations. The provisions in question are intended
to remind employees and their representatives that these medical examinations
are under the control of medical professionals and are not, therefore, a proper
forum for disputing aspects of individual claim adjudications. These physicians have been asked to
conduct an examination at the request of OWCP in order to further clarify
aspects of an employee’s alleged medical condition, not to treat the employee,
and therefore they do not have the type of ethical obligations regarding the
employee that would otherwise naturally arise with a normal “doctor-patient”
relationship. Since any attempt to
interfere with a directed examination would disrupt the purpose of the
examination, § 30.410(b) and § 30.411(c) set out the consequences of taking such
actions, and have not been altered in the final rule.
This same advocacy group
disagreed with § 30.411(b), which states that when OWCP finds that a conflict in
the medical evidence exists, OWCP will select a third physician to conduct a
referee examination that resolves such conflict. This process has been in place since the
inception of OWCP’s administration of Part B, and was not altered in any way
with the promulgation of the interim final rule. Further, this same process has been used
successfully in other benefit programs administered by OWCP. Accordingly, § 30.411(b) was not
modified in the final rule.
The same advocacy group and
another advocacy group criticized the absence of any “conflict of interest”
provisions with respect to physicians in the interim final rule. These comments asserted that it was
important that OWCP indicate that physicians involved in the claims adjudication
process who submitted medical evidence upon which OWCP claims examiners would
make determinations on claims would be subject to some sort of constraints
regarding such matters as prior involvement with a claimant, former work for a
claimant’s employer, etc. OWCP
agrees with the general thrust of these comments, and has added provisions to §§
30.410 and 30.411 that indicate that physicians who perform directed medical
examinations at the request of OWCP in connection with the claims adjudication
process will be subject to “conflict of interest” standards devised by OWCP to
ensure their compliance with ethical standards of professional
conduct.
Sections
30.500 and 30.501
A total of 521 comments
objecting to the definitions of “covered” child and “surviving spouse” for the
purposes of Part E in § 30.500(a) were received from 502 individuals and one lay
representative (several individual commenters submitted multiple comments on
this issue). While the definition
of a “surviving spouse” is the same one that applies to Part B claims, a
“covered” child under Part E must meet the same definition of a “child” used in
Part B and, as of the date of the covered Part E employee’s death, be either
under the age of 18, under the age
of 23 and a full-time student who was continuously enrolled in one or more
educational institutions since attaining the age of 18 years, or any age and
incapable of self-support. These
definitions merely follow, as they must, the definitions for these two terms
that appear in section 7385s-3(d).
Since these terms cannot be altered through the rulemaking process, the
suggestions were not adopted and no changes were made to §
30.500(a).
The same lay representative
and two of the same individuals also objected to the order of precedence for
survivors under Part E that is set out in § 30.501(b) and argued that a
surviving spouse should not be required to share an award with children of a
deceased Part E employee under any circumstances. This section states that if there is a
surviving spouse and at least one “covered” child of a deceased covered Part E
employee who is living at the time of payment and who is not a recognized
natural child or adopted child of such surviving spouse, half of the payment is
made to the surviving spouse and the other half is shared equally among all
“covered” children of the employee who are living at the time of payment. As was the case with the survivor
definitions discussed in the preceding paragraph, the regulatory order of
precedence for survivors under Part E of the Act merely tracks the statutory
order of precedence contained in section 7385s-3(c)(3) of EEOICPA. Since the order of precedence for
survivors under Part E cannot be modified by regulation, the suggestion was not
adopted.
Section
30.505
Two advocacy groups suggested that
the unified benefit payment processes for both Parts B and E described in §
30.505(a) be amended to require OWCP to issue a “partial” award of $12,500 to
covered Part E employees at the time it determines that they have contracted a
covered illness, and to determine the balance of any compensation due them
within another six months. Unlike
Part B of EEOICPA, which compensates individuals upon a finding that a covered
Part B employee contracted an occupational illness, Part E monetary compensation
can only be awarded if OWCP further determines that a covered Part E employee’s
wage-loss, impairment or death was due to his or her covered illness. Thus, this suggestion would result in
the issuance of a monetary award to a claimant before OWCP has determined that
the statutory entitlement criteria established by Part E have been met, and that
a payment is due after any required offsets have been calculated. Shortening the monetary benefit payment
processes for Part E as suggested by these two commenters would violate the
explicit terms of EEOICPA, and therefore the suggestions to change § 30.505(a) have not been
adopted.
One labor organization
suggested that § 30.505(d) be amended to permit a claimant to receive up to the
$250,000 maximum aggregate compensation payable under Part E for both wage-loss
and impairment, for each of his or her covered illnesses. As OWCP noted in the preamble discussion
of this provision of the interim final rule, 42 U.S.C. 7385s-12 “limits the
aggregate compensation (other than
medical
benefits) that OWCP may pay under Part E to all claimants for each individual
whose illness or death serves as a basis for compensation or benefits under Part
E to a total of $250,000. This is
the only reading of the statutory language that is consistent with the statutory
requirement that the computation of both impairment benefits and wage-loss
benefits under [section] 7385s-2 be based upon impairment or wage-loss that is
‘the result of any covered illness.’
This reading is also consistent with congressional intent, as reflected
in the Conference Report for Public Law 108-375, which states that the ‘maximum
aggregate benefit available under [Part] E of EEOICPA is $250,000.’ See H.R. Conf. Rep. No. 108-767, at 894
(2004).” Thus, the suggested
changes have not been adopted.
Section
30.509
Two advocacy groups
asked why § 30.509(c) indicates that OWCP will only make an impairment
determination for a deceased Part E employee if an eligible survivor makes an
election to receive the compensation of the employee as permitted by section
7385s-1(2)(B) of EEOICPA, when the Conference Report states that survivors under
Part E are to receive a minimum lump-sum payment of $125,000. These comments are based on a
misunderstanding of the operation of § 30.509, which describes the very limited
universe of survivors who are eligible to make the election described in section
7385s-1(2)(B), and the fact that the only survivors entitled to utilize this
election provision would not be entitled to survivor benefits because the
election is only available to survivors of a covered Part E employee who died
“from a cause other than the covered illness of the employee.” Survivors who make this election will
therefore not be eligible to receive any other compensation (such as the
$125,000 lump-sum payment) under the terms of section 7385s-3. Accordingly, the provision discussed in
§ 30.509(c) is correct, and no changes were made to this section in the final
rule.
Sections
30.513 through 30.517
One lay representative
suggested that in § 30.517, OWCP should more specifically describe the
circumstances under which it would decide to waive its statutory right to
recover an overpayment pursuant to section 7385j-2 of EEOICPA. While § 30.513 of the interim final
regulations notes the general authority of OWCP to waive recovery of an
overpayment of EEOICPA benefits, §§ 30.514 through 30.517 elaborate on that
authority with a substantial amount of detail. In light of the variety of factual
circumstances and fairness considerations that may apply in any specific case,
it is not possible to identify particular circumstances rather than general
principles concerning how this authority is to be exercised. Therefore, since §§ 30.513 through
30.517 in the interim final regulations adequately identify the standards that
OWCP will use to make these determinations without depriving OWCP of sufficient
flexibility to administer this aspect of the program, the suggested changes have
not been adopted.
Section
30.600
One individual suggested
that § 30.600(b) make it clearer that a claimant can grant a person a “power of
attorney” to act on his or her behalf, and that such person can then designate a
representative to pursue the claim under EEOICPA. OWCP believes there is merit in this
suggestion. Thus, additional
language was added to § 30.600(b) to clarify that a person who has been granted
a power of attorney by a claimant under EEOICPA may designate a representative
to pursue that claim before OWCP.
Also, one attorney suggested that OWCP change § 30.600(c)(2) to allow an
attorney or representative to complete, but not sign, a Form EN-20. OWCP believes that this suggestion has
merit, and § 30.600(c)(2) has been amended as requested.
Section
30.603
One attorney suggested that
the 10 percent limit for attorney fees for filing objections to a recommended
decision should apply to the amount of the lump-sum awarded in the final
decision. The interim final rule
currently applies this limit to the amount by which the lump-sum award is increased as a result of the objections,
and is consistent with the mandate in section 7385s-9 to limit such fees in Part
E cases in the same manner as Part B cases. Since Part B claimants either receive a
full lump-sum award or no award at all,
successful objections to a recommended decision provide a claimant with
an “increased” lump-sum award equal to the entire amount payable under Part
B. Section 30.603(b)(2) in the
interim final rule merely applies this same principle to Part E cases as
required by the explicit terms of the Act.
Since lump-sum awards to covered Part E employees may vary according to
their level of impairment and the extent of their wage-loss, there may be
instances where an objection to a recommended decision proposing to award
benefits under Part E may result in a final decision awarding greater benefits.
In such a case, the gain to the
covered Part E employee from the filing of the objection will not be the entire
lump-sum award; the gain will the difference between the lump-sum payment and
the amount proposed in the recommended decision. To be consistent with Part B, as
required by the statute, the attorney fees under Part E have to be limited to
the difference in lump-sum amounts.
Thus, the suggested change has not been
adopted.
This attorney and two other
attorneys also objected to the provision in § 30.603(b)(1) that does not permit
a representative to charge a two percent fee unless he or she was retained prior
to the initial filing of the claim.
This provision, however, is based on the limitation contained in 42
U.S.C. 7385g(b)(1), which states that a representative may only charge a two
percent fee “for the filing of an initial claim for payment of lump-sum
compensation. . . .” OWCP believes
that it would violate the statute to permit a representative to charge a fee of
two percent of the lump-sum award if the representative was retained after the
claim was filed. One of these two
other attorneys also suggested that the term “initial claim” be defined to
include the filing of amended claim forms, the submission of additional
documents or data, or the reopening of the claim following the issuance of a
final decision by the FAB; in the alternative, he also suggested that the
limitations described in the interim final rule not apply to claims that were
filed prior to the effective date of that rule, i.e., June 8, 2005. OWCP believes that an expansive
definition of the term “initial claim” would be inconsistent with the plain
meaning of the statute, which has not changed in this regard since section 7385g
was amended on
Section
30.609
Two advocacy groups
disagreed with the requirement in § 30.609 that claimants must report (for
offset purposes) any payments that they receive due to medical malpractice resulting from treatment of their
occupational illness or covered illness.
Such medical malpractice payments have as their genesis exposures for
which compensation is payable under Part B or Part E of EEOICPA. Under section 7385 of EEOICPA, benefits
payable under Part B or Part E must be offset to reflect these types of
payments. Thus, OWCP must be
informed of these types of payments so it can perform the statutorily mandated
offset of EEOICPA benefits, and the suggestion to eliminate this section has not
been adopted in the final rule.
Section
30.626