Performance of Functions; Claims for Compensation Under the
Energy Employees Occupational Illness Compensation Program Act of 2000,
as Amended
[12/29/2006]
Volume 71, Number 250, Page 78519-78568
[[Page 78519]]
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Part II
Department of Labor
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Office of Workers' Compensation Programs
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20 CFR Parts 1 and 30
Performance of Functions; Claims for Compensation Under the Energy
Employees Occupational Illness Compensation Program Act of 2000, as
Amended; Final Rule
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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.
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SUMMARY: On June 8, 2005, the Department of Labor (DOL) published
interim final regulations that govern its responsibilities under the
Energy Employees Occupational Illness Compensation Program Act of 2000,
as amended (EEOICPA or Act). Part B of the Act provides lump-sum
payments of $150,000 and medical benefits to covered employees and,
where applicable, to survivors of such employees, of the Department of
Energy (DOE), its predecessor agencies and certain of its vendors,
contractors and subcontractors. Part B also provides lump-sum payments
of $50,000 and medical benefits to individuals found eligible by the
Department of Justice (DOJ) for $100,000 under section 5 of the
Radiation Exposure Compensation Act (RECA) and, where applicable, to
their survivors. Part E of the Act provides variable lump-sum payments
(based on a worker's permanent impairment and/or calendar years of
qualifying wage-loss) and medical benefits for covered DOE contractor
employees and, where applicable, provides variable lump-sum payments to
survivors of such employees (based on a worker's death due to a covered
illness and any calendar years of qualifying wage-loss). Part E also
provides these same payments and benefits to uranium miners, millers
and ore transporters covered by section 5 of RECA and, where
applicable, to survivors of such employees.
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 February 27,
2007, and will apply to all claims filed on or after that date. This
rule will also apply to any claims that are pending on February 27,
2007.
FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of
Workers' Compensation Programs, Employment Standards Administration,
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW.,
Washington, DC 20210, Telephone: 202-693-0031 (this is not a toll-free
number).
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 Coconino County (Arizona) Board of
Supervisors, one labor organization, the Navajo Nation and 23
individuals; all of the points they raised were also raised by the
timely comments. Almost all of the timely comments (521) addressed the
issue of eligibility for survivor benefits under Part E of EEOICPA; 494
of the comments addressed this issue alone. They also addressed a
number of other issues, including the administrative claims process
used to adjudicate claims under EEOICPA, entitlement qualifications,
and the extent of coverage provided under Part E. The Department's
section-by-section analysis of the timely comments it received is set
forth below (see sections I and II).
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 Sec. 30.112(b) to recognize that pursuant to Sec.
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 Sec. 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 Sec. 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 Sec.
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, Sec.
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 Sec. 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 Sec. 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
[[Page 78521]]
eligibility of survivors under Part B and Part E of EEOICPA already
appear at Sec. 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 Sec. Sec. 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 Sec. Sec. 30.100 and 30.101 were not made.
Two individuals disputed the provision in Sec. 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 Sec. 30.101(c) was not made.
Three advocacy groups suggested that the provision in Sec. 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 Sec.
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 June 20,
2005, the Office of Management and Budget approved new versions of
Forms EE-1 and EE-2 that allow claimants to file for all illnesses
potentially compensable under Part E. As noted in Sec. 30.103(b),
these forms are available on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.
Therefore, the suggested change
to Sec. 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, Sec. 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 Sec. 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 Web site 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 Web site.
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 Sec. 30.111(a).
Another individual suggested that OWCP amend Sec. 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 Sec. 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
[[Page 78522]]
final rule. A third individual suggested that language be added to
Sec. 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 Sec. 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 Sec. 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 December 26, 2002, and have not
proved problematic in practice. Therefore, the requested changes were
not made in this final rule.
A fourth individual disagreed with the general requirement in Sec.
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 Sec. 30.114 was
not made.
Section 30.115
Two individuals asserted that application of the dose
reconstruction process discussed in Sec. 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 Sec.
30.5(ff)) at newly designated Special Exposure Cohort worksites. With
respect to the first of these two concerns, the discussion of Sec.
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 Sec. 30.2(b)). For
the above reasons, no changes were made to Sec. 30.115 in the final
rule based on these three comments.
Section 30.213
OWCP received 19 comments regarding the operation of Sec. 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 50 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, June 18, 2002). Part B, thus, requires that a claimed
cancer be determined to be ``related to'' employment at a covered
facility if the radiation dose and other factors combined indicate that
there is a statistical probability that the cancer would not have
occurred in the absence of work-related exposure to radiation. In other
words, the PoC determination made for purposes of Part B is actually a
determination that there is a 50 percent or better chance that
radiation was a factor, however slight, ``in aggravating, contributing
to, or causing'' a claimed cancer because, in the absence of work-
related exposure to radiation, the cancer would not have occurred at
all.
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
[[Page 78523]]
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, June 18, 2002). Scientific analysis does not
distinguish between cancers that are caused or contributed to by
radiation. Since the actual mechanisms of cause (or contribution) for a
given cancer are not known, only probabilistic assertions can be made,
and they address only whether the cancer is more or less likely not to
have occurred absent the exposure. The IREP approach identifies all
conceivable cancers that might have resulted from the radiation
exposure. This probabilistic approach is the only generally accepted
scientific means of assigning responsibility for cancers in relation to
radiation exposure. The Department of Veterans Affairs and the Defense
Department also utilize essentially the same statistical probability
test to adjudicate benefits for potentially radiogenic cancer cases
incurred by veterans exposed to radiation.
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
[[Page 78524]]
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 Sec. Sec. 30.230 through 30.232. As a
result, no changes were made to Sec. 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 Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 30.231 have
not been adopted.
One advocacy group objected to the requirement in Sec.
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 Sec.
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 Sec. 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 Ombudsman
to provide a properly cleared lawyer or qualified technical expert to
evaluate the factual evidence and advocate on behalf of the claimant
during the claims adjudication process. OWCP is also concerned about
the impact of using classified information to adjudicate claims under
the Act. However, since it is not the classifying agency with respect
to such information, it cannot allow greater access to the information
than is currently permitted. As for the suggestion that OWCP should ask
the Ombudsman to nominate or otherwise provide a person with the
requisite security clearance to advocate for
[[Page 78525]]
claimants, the Ombudsman is not authorized to perform that function by
either the statute or Secretary's Order 1-2005 (70 FR 33328), which
established the Office of the Ombudsman within the Department. The
Ombudsman does not have any role in the claims adjudication process
administered by OWCP. Thus, the suggestions were not adopted in the
final rule.
Another advocacy group suggested that the claims adjudication
processes described in Sec. 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 Sec. 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 Sec. 30.301 have not been adopted.
One attorney suggested that Sec. 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 Sec. 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 Sec. 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 Sec. 30.303. However, in order to accommodate DOE's
belief that it requires additional time to comply with these necessary
requests, OWCP has amended Sec. 30.303(a) to provide DOE with 90 days
within which to respond.
Sections 30.307 and 30.316
One attorney suggested that Sec. Sec. 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,
Sec. Sec. 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 Sec. 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, Sec. 30.315(b) has been amended as
suggested by the commenter.
Section 30.320
One attorney suggested that Sec. 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
[[Page 78526]]
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 Sec. 30.320(a), which
permits the Director, at his discretion, to reopen a final decision at
any time. For these reasons, the suggestion regarding Sec. 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 Sec. Sec. 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, Sec. Sec.
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
Sec. Sec. 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, Sec.
30.410(b) and Sec. 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 Sec. 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, Sec. 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 Sec. Sec. 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 Sec.
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 Sec. 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 Sec. 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 Sec. 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
[[Page 78527]]
suggestions to change Sec. 30.505(a) have not been adopted.
One labor organization suggested that Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 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 Sec. 30.513 of the interim final
regulations notes the general authority of OWCP to waive recovery of an
overpayment of EEOICPA benefits, Sec. Sec. 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
Sec. Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 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 Sec. 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 December 28, 2001. For this same reason, OWCP also
believes that there would be no justification for applying the fee
limitations described in Sec. 30.603 only to claims filed on or after
June 8,
[[Page 78528]]
2005. Thus, none of these suggested changes were adopted in the final
rule.
Section 30.609
Two advocacy groups disagreed with the requirement in Sec. 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
One lay representative and five individuals objected to Sec.
30.626, which describes the required coordination of payments under
Part E of EEOICPA with benefits from state workers' compensation
programs for the same covered illness or illnesses. However, OWCP is
required to coordinate Part E benefits in this manner by section 7385s-
11 of the Act. Thus, the suggestion to eliminate this section has not
been adopted.
Sections 30.801, 30.805, 30.806 and 30.815
One individual suggested that Sec. 30.801 indicate that
compensation will be provided to employees who have suffered occasional
days of lost pay due to their covered illnesses. However, Part E is not
a program that provides compensation for any wage-loss, regardless of
amount, that a covered Part E employee may experience due to his or her
covered illness. Instead, Part E only provides compensation under a
specific formula in section 7385s-2(a)(2)(A) based on a qualifying
amount of wage-loss sustained in a given calendar year, and this
formula cannot be altered in this final rule. Thus, the suggestion has
not been adopted.
One labor organization asserted that it is more difficult for
employees who worked intermittently at DOE facilities to establish
their average annual wage and their alleged calendar years of wage-loss
through reliance on wage data received from the Social Security
Administration, and that this will result in employees having to use
the methods of Sec. 30.806 to convince OWCP to determine a different
average annual wage and/or the extent of compensable calendar years of
wage-loss than it determined using Sec. 30.805. However, the labor
organization did not put forward any discernable proposal to address
the purported problem it raised in its comment. While it is possible
that some employees may incur difficulties in securing the type of
records described as acceptable to OWCP in Sec. 30.806, these
difficulties alone should not relieve them of their burden to produce
records that show a level of wage-loss sufficient to make them eligible
for an award. OWCP claims examiners are instructed to accept tax
returns, pay stubs, union records and pension records as evidence of
earnings. In addition, claims examiners can request earning records
from employers. Therefore, no change has been made to Sec. 30.806 in
the final rule. However, because of these concerns, Sec. 30.805 has
been amended in the final rule to more precisely define the term
``wages.'' Another labor organization asserted that some occupations
are more likely to be affected by the business cycle than others, and
asked that the wages of employees in these occupations be determined by
looking to the average wages of their ``peer group'' rather than to
their own individual wages. OWCP does not believe that adjustments for
fluctuations in demand for labor in certain occupations can be made
fairly or efficiently, nor does it believe that it has the authority to
make this type of change to the statutory formulae for determining
these matters by regulation. As a result, this suggested change has
also not been adopted.
One individual suggested a stylistic change for the wording of
Sec. 30.815(b), which he felt was too confusing. Section 30.815(b) is
merely intended to inform readers that in most situations, OWCP will
determine the number of compensable years of wage-loss in accordance
with the procedures described in Sec. Sec. 30.800 through 30.811. The
suggested change is not substantive in nature and would be, in OWCP's
opinion, more confusing than the language that currently appears in
Sec. 30.815(b). Therefore, the suggested change to this section has
not been adopted in the final rule.
Section 30.901
One labor organization questioned OWCP's ability to make the type
of apportionment determinations described in Sec. 30.901(a) of the
interim final rule and asserted that there was no reasoned basis for
allocating the cause of a permanent impairment of an organ or body
function among both compensable and non-compensable exposures. This
provision was based on the somewhat ambiguous language of section
7385s-2(a)(1)(A) of the Act, which can be read in such a way as to
require the apportionment described in Sec. 30.901(a) of the interim
final rule. However, after carefully considering both the dearth of
support for such apportionments in the medical literature and the
practical difficulties that claims examiners would be faced with if
they were required to make these particular types of determinations,
OWCP agrees with the commenter and has decided to interpret the
statutory provision in question as not requiring such an apportionment.
Thus, OWCP has modified Sec. 30.901(a) in the final rule to remove
this requirement. Conforming changes have also been made to Sec. Sec.
30.901(d), 30.902, and 30.908(b) and (c).
One lay representative, four individuals and the same labor
organization also criticized the description of the criteria for
physicians to perform impairment evaluations set out in Sec.
30.901(b), and suggested that OWCP modify that description to make the
criteria less restrictive so as to increase the potential pool of
physicians who can perform impairment evaluations acceptable to OWCP.
After considering several different potential criteria since the
issuance of the interim final rule, OWCP believes that it has developed
criteria that will satisfy the commenters' concern that there will be
few physicians who meet the criteria in a given locality, or that
claimants will not be able to use their local physicians to perform the
testing and measurements upon which an impairment evaluation under Part
E can be performed by a physician who meets the criteria. As changed,
these criteria will now provide that a physician has to establish (to
OWCP's satisfaction) that he or she possesses knowledge and experience
in using the American Medical Association's Guides to the Evaluation of
Permanent Impairment (AMA's Guides) and/or possesses the requisite
professional background and work experience to conduct acceptable
impairment evaluations. Further, while a claimant's local physician may
not be able to satisfy all of the criteria described in Sec. 30.901(b)
and perform the impairment evaluation itself, the claimant can still
elect to have such a physician perform the underlying objective testing
and other procedures that another physician who does satisfy the
criteria could rely upon in arriving at an evaluation of his or her
impairment. Since OWCP has changed the policy to which the commenters
[[Page 78529]]
objected, no changes were made to Sec. 30.901(b) in the final rule.
Sections 30.905 and 30.906
One individual objected to the provision in Sec. 30.905(b)(1) that
only impairment evaluations performed by physicians who meet the
criteria identified by OWCP will be considered probative. The comment
suggests that impairment evaluations performed by physicians of the
Radiation Exposure Screening and Education Program (RESEP) that is
administered by the Health Resources and Services Administration within
HHS be considered probative under Part E of EEOICPA. OWCP has no
objection to claimants submitting impairment evaluations performed by a
RESEP physician, so long as that physician meets the qualifications set
forth by OWCP. The same would be true for physicians who are affiliated
with other government-sponsored health clinics. Not all physicians,
however, have the necessary training to perform impairment evaluations
(as noted above, claimants can utilize any physician to perform the
testing and measurements upon which an impairment evaluation can be
performed by a physician who meets OWCP's criteria). Thus, OWCP must
put into place certain criteria to identify those physicians who are
qualified to perform impairment evaluations upon which it can base its
ratings. As a result, no changes to Sec. 30.905(b)(1) were made in the
final rule. Two other individuals objected to the requirement found in
Sec. 30.905(b)(2) that an impairment evaluation must have been
performed within one year of its submission to OWCP for it to be
considered probative in determining the permanent impairment of a
covered Part E employee and suggested that this requirement be deleted.
OWCP does not find any merit to this objection because the Act requires
OWCP to determine the minimum impairment rating of the employee as of
the time it is adjudicating the claim for the award. In light of this
requirement, OWCP believes that it is reasonable to insist that the
rating be based on an impairment evaluation that is no more than one
year old. Two advocacy groups also suggested that this same requirement
be deleted because covered Part E employees with previous temporary
impairments from which they have recovered would not receive
compensation. OWCP believes that the reasoning behind these latter
comments ignores the mandate in the Act to compensate covered Part E
employees for their permanent impairment rather than their temporary
impairment. Thus, the suggestions to delete the requirement in Sec.
30.905(b)(2) were not adopted.
Two attorneys suggested that Sec. 30.906 be amended to provide
that OWCP will pay for the cost of any additional impairment evaluation
if such impairment evaluation increases the minimum impairment rating.
In the interim final rule, this section states that OWCP will pay for
one evaluation if it meets the criteria set forth in Sec. 30.905(b),
and that it will also pay for any additional impairment evaluations
that it directs the employee to undergo (and reimburse the employee for
reasonable expenses, as defined in the rule, that are associated with
such an evaluation). OWCP is not persuaded that there is a reasonable
basis for paying for additional impairment evaluations beyond those
already described in Sec. 30.906, and therefore the suggestion was not
adopted in the final rule.
Sections 30.907 and 30.908
Two advocacy groups asserted that Sec. 30.907(b) did not provide a
process whereby a dispute regarding a covered Part E employee's
impairment evaluation could be resolved. While Sec. 30.907(b) in the
interim final rule noted that the procedures for ``directed medical
examinations'' set out in Sec. Sec. 30.410 and 30.411 of the
regulations applied to these types of disputes, OWCP acknowledges that
it did not explicitly note that such procedures include the process by
which OWCP resolves medical disputes in general. Therefore, in order to
make this provision more clear, Sec. 30.907(b) has been modified
slightly in the final rule to explicitly note that OWCP will resolve
medical disputes regarding impairment through the ``referee
examination'' process set out in Sec. 30.411.
One labor organization objected to the provisions in Sec. 30.908
requiring that medical evidence of impairment submitted to the FAB in
opposition to the impairment evaluation that was relied upon in a
recommended decision conform to the requirements set out in Sec.
30.905(b) in order to be afforded any probative value, and noted that
claimants have the burden of proving that the new medical evidence has
greater probative value than the impairment evaluation relied upon in
the recommended decision. Requirements of this sort that set out
minimum standards for new evidence and the assumption of the burden of
proof when challenging a determination made below are standard features
of any adjudicative system, and are necessary to conserve scarce
administrative resources. OWCP does not agree that their use in this
context is either unduly burdensome on claimants or inherently unfair
in a system such as Part E. Therefore, no changes were made to Sec.
30.908 as a result of the comment.
Section 30.910
Two comments from congressional representatives, four from advocacy
groups and two from individuals objected to the provision in Sec.
30.910(a) of the interim final rule that an impairment that cannot be
assigned a numerical percentage using the AMA's Guides will not be
included in a covered Part E employee's impairment rating, and noted
that the Conference Report for Public Law 108-375 suggests that for
those illnesses for which the AMA's Guides do not provide a method to
assign a numerical percentage, the Department should devise another
method to determine the amount of an impairment award to a covered Part
E employee. See H.R. Conf. Rep. No. 108-767, at 893 (2004). However, as
the Department pointed out when it promulgated Sec. 30.910, the plain
language of section 7385s-2(b) requires OWCP to determine the amount of
an impairment award to a covered Part E employee in accordance with the
AMA's Guides and does not contain the exception referred to in the
Conference Report for ``an illness for which the [AMA's Guides] do not
provide an impairment rating. * * *'' It should be noted that this
suggestion appears to be based on the assumption that the AMA's Guides
cannot be used to determine an impairment rating for an illness unless
they explicitly provide a method to evaluate that particular illness.
However, because the Guides evaluate the impairment of organs and body
functions rather than illnesses per se, even a newly identified illness
can be evaluated using the Guides so long as its effects on those
organs and/or body functions are known and quantifiable.
As noted above, section 7385s-2(b) of EEOICPA requires that
impairment ratings ``shall be determined in accordance with the
American Medical Association's Guides to the Evaluation of Permanent
Impairment.'' The discussion of mental impairments that do not
originate from documented physical dysfunctions of the nervous system
in Chapter 14 (Mental and Behavioral Disorders) of the AMA's Guides
states that ``there are no precise measures of impairment in mental
disorders. The use of percentages implies a certainty that does not
exist.'' Chapter 14 then explains that the authors of the current
(fifth) edition of
[[Page 78530]]
the AMA's Guides are ``unaware of data that show the reliability'' of
any percentages for these particular types of impairments and that
``the Committee on Disability and Rehabilitation of the American
Psychiatric Association advised Guides contributors against the use of
percentages in the chapter on mental and behavioral disorders of the
fourth edition, and that remains the opinion of the authors of the
present chapter.'' In support of their decision not to assign numerical
percentages to mental impairments that do not originate from documented
physical dysfunctions of the nervous system, the authors point out that
``[n]o available empirical evidence supports any method for assigning a
percentage of impairment of the whole person'' to these disorders.
Since the AMA's Guides clearly takes the position that there is no
basis to calculate numerical percentages of mental impairment due to
mental disorders, attempting to do so by devising a rating mechanism
independent of the AMA's Guides would violate EEOICPA's requirement
that impairment ratings be determined ``in accordance with'' the AMA's
Guides. Thus, Sec. 30.910(b) indicates that these types of mental
impairments will not be included in an impairment rating; no change was
made to this section in the final rule.
Section 30.911
Two comments from individuals, two from congressional
representatives, two from advocacy groups and two from attorneys
questioned the appropriateness of the provision in Sec. 30.911(a) in
light of the progressive nature of the covered illnesses that would be
compensable under Part E of EEOICPA. OWCP's intent in the interim final
rule was to apply the requirement that an individual reach ``maximum
medical improvement'' in order for an impairment rating to be
determined in a manner that is appropriate for the conditions covered
by EEOICPA. OWCP recognizes that many of these covered illnesses are
progressive, and that many employees may find themselves in a situation
where their accepted condition is not likely to improve but can be
expected to gradually deteriorate. The intent in the interim final rule
was to allow for minimum impairment ratings to be calculated and
compensated in such circumstances. However, since the wording of Sec.
30.911(a) in the interim final rule did not convey this intent as
clearly as it could have, this provision has been modified slightly in
the final rule by changing the word ``change'' to ``improve'' in the
final rule.
II. Miscellaneous Comments
Several of the 533 timely comments the Department received raised
issues that either were not addressed in the interim final regulations
or involved extraneous matters. The Department's analysis of these
miscellaneous comments follows:
The Ombudsman
OWCP received one comment from an advocacy group pointing out that
the interim final regulations did not address the role and functions of
the Ombudsman provided for in section 7385s-15 of EEOICPA. However,
this omission was intentional and required by the terms of section
7385s-15(d), which requires that the Ombudsman be independent ``from
other officers and employees of the Department [of Labor] engaged in
activities relating to the administration of the provisions of'' Part E
of EEOICPA. Instead, the role and the functions of the Ombudsman are
set out in Secretary's Order 1-2005. Therefore, the final rule also
does not address either the role or the functions of the Ombudsman.
The Rulemaking Process
OWCP received one comment from an attorney on a specific aspect of
the rulemaking process. Without identifying any particular provision of
the regulations, the commenter opined that at least some of them would
not be comprehensible to some members of the public and should be
rewritten in ``plain English.'' OWCP acknowledges that some of the
regulations for Part E involve complex medical matters or complicated
arithmetic calculations. However, while these concepts can be difficult
to comprehend, OWCP went to great lengths in an effort to ensure that
the corresponding regulations in subparts I and J were written in a
clear and understandable manner. Since the commenter neither identified
a particularly incomprehensible provision of the regulations nor
provided any suggested improvements, no additional changes were made to
the regulations based on this comment.
Coverage
One DOE contractor and four individuals made suggestions about
which workers or survivors should be covered by Part E of EEOICPA.
However, the Act mandates the categories of workers and survivors
covered under Part B and Part E and the regulations cannot be changed
to either expand or restrict these categories unless the Act is
amended. Therefore, the suggested changes have not been made in this
final rule.
III. Publication in Final
The Department of Labor has determined, pursuant to 5 U.S.C.
553(b)(B), that good cause exists for waiving public comment on this
final rule with respect to the following changes: (1) Corrections of
typographical errors; and (2) minor wording changes and clarifications
that do not affect the substance of the regulations. For these changes,
publication of a proposed rule and solicitation of comments would be
neither necessary nor fruitful.
IV. Statutory Authority
Section 7384d of EEOICPA provides general statutory authority,
which E.O. 13179 allocates to the Secretary, to prescribe rules and
regulations necessary for administration of Part B of the Act. Section
7385s-10(e) also provides the Secretary with the general statutory
authority to prescribe regulations necessary for administration of Part
E of the Act. Sections 7384t, 7384u and 7385s-8 provide the specific
authority regarding medical treatment and care, including authority to
determine the appropriateness of charges. The Federal Claims Collection
Act of 1966, as amended (31 U.S.C. 3701 et seq.), authorizes imposition
of interest charges and collection of debts by withholding funds due
the debtor.
V. Paperwork Reduction Act
This final rule contains information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et
seq. The requirements set out in Sec. Sec. 30.401, 30.404, 30.420,
30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule were
both submitted to and approved by OMB under the PRA in OMB Control Nos.
1215-0054 (expires June 30, 2007), 1215-0055 (expires October 31,
2009), 1215-0137 (expires March 31, 2007), 1215-0144 (expires October
31, 2009), 1215-0176 (expires January 31, 2007), 1215-0193 (expires
March 31, 2007) and 1215-0194 (expires March 31, 2007). The
requirements in Sec. Sec. 30.100, 30.101, 30.102, 30.103, 30.111,
30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215,
30.221, 30.222, 30.226, 30.231, 30.232, 30.415, 30.416, 30.417, 30.505,
30.620, 30.806, 30.905 and 30.907of this rule were also both submitted
to and approved by OMB under the PRA in OMB Control No. 1215-0197
(expires August 31, 2007).
Following publication of this final rule, the Department plans to
seek OMB approval of two new information collections under the PRA and
will issue 60-day Federal Register notices
[[Page 78531]]
seeking public comment on (1) a collection that will annually request
updated information relating to state workers' compensation benefits
received by EEOICPA Part E beneficiaries; and (2) a collection annually
requesting verifying information on state workers' compensation
benefits from state authorities. These collections will implement the
Department's responsibilities under section 7385s-11 of EEOICPA.
VI. Executive Order 12866
This rule is being treated as a ``significant regulatory action,''
within the meaning of E.O. 12866, because it is ``economically
significant'' as defined by section 3(f)(1) of that Order. The payment
of the benefits provided for by EEOICPA through the program
administered pursuant to this regulatory action has an annual effect on
the economy of $100 million or more. However, this rule does not
adversely affect in a material way the economy, a sector of the
economy, productivity, jobs, the environment, public health or safety,
or State, local, or tribal governments or communities, as defined by
section 3(f)(1) of E.O. 12866. This rule is also a ``significant
regulatory action'' because it meets the criterion of section 3(f)(4)
of that Order in that it raises novel or legal policy issues arising
out of the legal mandate established by EEOICPA.
Based on the factors and assumptions set forth below, DOL's
estimate of the aggregate cost of benefits and administrative expenses
of this regulatory action implementing Part B and Part E of EEOICPA is,
in millions of dollars:
----------------------------------------------------------------------------------------------------------------
FY2007 FY2008 FY2009 FY2010 FY2011
----------------------------------------------------------------------------------------------------------------
Admin.......................................... $162 $163 $147 $127 $111
Benefits....................................... 1,123 861 752 656 579
----------------------------------------------------------------------------------------------------------------
The Department's estimate of the benefits to be paid pursuant to
EEOICPA and of the administrative costs of providing those benefits is
based on program experience to date, data collected from other federal
agencies, assumptions about the incidence of cancer, covered beryllium
disease, chronic silicosis and other covered illnesses in the claimant
population, life expectancy tables, dose reconstruction acceptance
rates, Physicians Panel acceptances under the former Part D of the Act,
the anticipated distribution of benefit amounts, and its experience in
estimating administrative and medical costs of workers' compensation
programs. The Department's benefit estimates are not based on any
projections regarding the number of future additions to the Special
Exposure Cohort (SEC).
For Part B benefits, estimates for cancer claims are based on the
actual number of claims received by OWCP, the anticipated number of
future claims, and the historical approval rates for both SEC and non-
SEC claims. Part B benefit estimates for beryllium exposure are based
on the actual number of such claims received by OWCP, anticipated
future claims, and the historical approval rate. Benefit estimates for
chronic silicosis are based on similar factors. Benefit estimates for
claims that require receipt of an award from DOJ under section 5 of
RECA are based on historical claim receipts and include the amounts
awarded by DOJ under RECA but paid from the compensation fund. Medical
benefits for living employees eligible under Part B are computed using
an average of $10,000 per year.
Part E benefit estimates for Part E cases are based on cases
received by OWCP to date, future expected receipts, and the average
Part B approval rate. The benefit amounts for Part E are calculated
based on an estimated distribution of approved claims with varying
degrees of compensable impairment and wage-loss, with an average
benefit amount of $135,000 and average medical costs of $10,000 per
year for each eligible living employee. Additional Part E benefits for
individuals who are determined to be eligible RECA section 5 uranium
workers are computed based upon the number of such claims received to
date and the expected number of such claims in the future.
Administrative cost estimates were developed based upon OWCP's
experience to date in administering Part B and the other workers'
compensation programs that fall within its area of administrative
responsibility, using calculations of the number of incoming claims and
forecasting the necessary full-time equivalents and other resources
that are necessary to efficiently administer the program.
No more extensive economic impact analysis of this rule is
necessary because this regulatory action only addresses the transfer of
funds from the federal government to individuals who qualify under
EEOICPA and to providers of medical services in that program. This
regulatory action has no affect on the functioning of the economy and
private markets, on the health and safety of the general population, or
on the natural environment. In addition, because this rule implements a
statutory mandate, there are no feasible alternatives to this
regulatory action. Finally, to the extent that policy choices have been
made in interpreting statutory terms, those choices have no significant
impact on the cost of this regulatory action. Such policy choices may
affect who will be entitled to receive benefits (such as covered Part E
employees with unratable impairments due to a covered illness), but
will not have a significant impact on the number of eligible Part B or
E beneficiaries or the level of benefits to which they are entitled.
OMB has reviewed the rule for consistency with the President's
priorities and the principles set forth in E.O. 12866.
VII. Small Business Regulatory Enforcement Fairness Act
As required by Congress under the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department
will report to Congress promulgation of this final rule prior to its
effective date. The report will state that the Department has concluded
that this final rule is a ``major rule'' because it will likely result
in an annual effect on the economy of $100 million or more.
VIII. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
et seq.) directs agencies to assess the effects of federal regulatory
actions on state, local, and tribal governments, and the private
sector, ``other than to the extent that such regulations incorporate
requirements specifically set forth in law.'' For purposes of the
Unfunded Mandates Reform Act, this final rule does not include any
federal mandate that may result in increased annual expenditures in
excess of $100 million by state, local or tribal governments in the
aggregate, or by the private sector.
[[Page 78532]]
IX. Regulatory Flexibility Act
The Department believes that this rule has ``no significant
economic impact upon a substantial number of small entities'' within
the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The provisions of this rule that apply cost-control measures to
payments for medical expenses are the only ones that could have a
monetary effect on small businesses, and have been in effect since OWCP
began administration of Part B of EEOICPA on July 31, 2001. The
economic effect of these cost-control measures are not significant for
a substantial number of those businesses who participate in the program
under Parts B and E of EEOICPA, however, because no one business bills
a significant amount to OWCP for EEOICPA-related services, and the
monetary effect on bills that are submitted, while a worthwhile savings
for the Government in the aggregate, are not significant for any
individual business affected.
The cost-control provisions are: (1) A set schedule of maximum
allowable fees for professional medical services; (2) a set schedule
for payment of pharmacy bills; and (3) a prospective payment system for
hospital inpatient services. The methodologies used for the first two
of these provisions were explained in the text of the preamble to two
earlier regulatory actions that implemented EEOICPA in 2001 (66 FR
28948) and 2002 (67 FR 78874), which essentially adopted payment
systems that are prevalent in the industry. Their adoption for use in
connection with OWCP's administration of Part E of the Act results in
continued efficiencies for the Government and providers. The Government
benefits because OWCP did not develop new cost containment measures for
Part E claims, but rather adopted existing and well-recognized measures
that were already in place. The providers benefit because submitting a
bill and receiving a payment is almost the same as submitting it to
Medicare, a program with which they are already familiar and have
existing systems in place for billing--they do not have to incur
unnecessary administrative costs to learn a new process because the
EEOICPA bill process for Part E claims is identical to the bill process
that applies to Part B claims, and is not readily distinguishable from
the Medicare billing process. Similarly, pharmacies are familiar with
billing through clearing houses and having their charges subject to
limits by private insurance carriers. By adopting private sector
uniform billing requirements and a familiar cost control methodology,
OWCP has not altered the billing environment with which pharmacies are
already familiar. The methods chosen, therefore, represent systems
familiar to the providers. The third of these three provisions does not
have an effect on a substantial number of ``small entities'' under
Small Business Administration (SBA) standards, since most hospitals
providing services for medical conditions covered by EEOICPA have
annual receipts that exceed the set maximum.
The implementation of these cost-control methods does not have a
significant effect on any single medical professional or pharmacy since
they are already used by Medicare, CHAMPUS, and the Departments of
Labor and Veterans Affairs, among Government entities, and by private
insurance carriers. In actual terms, the amount by which these provider
bills are reduced does not have a significant impact on any one small
entity since these charges are currently being processed by other
payers applying similar cost-control provisions. The costs to providers
whose charges are reduced also are relatively small because EEOICPA
bills simply do not represent a large share of any single provider's
total business. Since the small universe of potential claimants is
spread across the United States and this bill processing system covers
only those employees who have sustained an occupational illness or a
covered illness and require medical treatment on or after October 30,
2000, the number of bills submitted by any one small entity which may
be subject to these provisions is likely to be very small. Therefore,
the ``cost'' of this rule to any one pharmacy or medical professional
is negligible. On the other hand, OWCP reaps substantial aggregate cost
savings that benefit both OWCP (by strengthening the integrity of the
program) and the taxpayers to whom the costs of the program are
eventually charged.
The Assistant Secretary for Employment Standards has certified to
the Chief Counsel for Advocacy of the SBA that this rule does not have
a significant impact on a substantial number of small entities. The
factual basis for this certification has been provided above.
Accordingly, no regulatory impact analysis is required.
X. Executive Order 12988 (Civil Justice Reform)
This final rule has been drafted and reviewed in accordance with
E.O. 12988 and will not unduly burden the federal court system. While
Part B of EEOICPA does not provide any specific procedures that
claimants under that Part must follow in order to seek review of
decisions on their claims, Part E specifies that claimants under that
Part have 60 days to file petitions for review of decisions on their
claims in the United States district courts, and mandates the use of an
``arbitrary and capricious'' standard of review. It is reasonably
likely that some EEOICPA claimants will seek review of adverse
decisions in United States district courts pursuant to 28 U.S.C. 1331
(for claims under Part B of EEOICPA) or the EEOICPA itself (for claims
under Part E). This rule should help minimize the burden placed on
courts by litigation seeking to challenge decisions under EEOICPA by
providing claimants with an opportunity to seek administrative review
of adverse decisions prior to resorting to the court system, and by
providing a clear legal standard for affected conduct. The rule has
been reviewed carefully to eliminate drafting errors and ambiguities.
XI. Executive Order 13045 (Protection of Children From Environmental,
Health Risks and Safety Risks)
In accordance with E.O. 13045, the Department has evaluated the
environmental health and safety effects of this rule on children. The
Department has determined that the final rule will have no effect on
children.
XII. Executive Order 13132 (Federalism)
The Department has reviewed this final rule in accordance with E.O.
13132 and has determined that it does not have any ``federalism
implications.'' The final rule does not ``have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
XIII. Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)
In accordance with E.O. 13211, the Department has evaluated the
effects of this final rule on energy supply, distribution or use, and
has determined that this rule is not likely to have a significant
adverse effect on them.
XIV. Submission to Congress and the General Accountability Office
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the Department will submit to each House of the
Congress and to the Comptroller General
[[Page 78533]]
a report regarding the issuance of this final rule prior to the
effective date set forth at the outset of this notice. The report will
note that this rule constitutes a ``major rule'' as defined by 5 U.S.C.
804(2).
XV. Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance as No. 17.310.
List of Subjects
20 CFR Part 1
Organization and functions (Government agencies).
20 CFR Part 30
Administrative practice and procedure, Cancer, Claims, Kidney
diseases, Leukemia, Lung diseases, Miners, Radioactive materials, Tort
claims, Underground mining, Uranium, Workers' compensation.
Text of the Rule
0
For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended
as follows:
Subchapter A--Organization and Procedures
0
1. Part 1 is revised to read as follows:
PART 1--PERFORMANCE OF FUNCTIONS
Sec.
1.1 Under what authority was the Office of Workers' Compensation
Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the
past?
Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No.
6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat.
1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-
71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.
Sec. 1.1 Under what authority was the Office of Workers' Compensation
Programs established?
The Assistant Secretary of Labor for Employment Standards, by
authority vested in him by the Secretary of Labor in Secretary's Order
No. 13-71 (36 FR 8755), established in the Employment Standards
Administration an Office of Workers' Compensation Programs (OWCP) by
Employment Standards Order No. 2-74 (39 FR 34722). The Assistant
Secretary subsequently designated as the head thereof a Director who,
under the general supervision of the Assistant Secretary, administers
the programs assigned to OWCP by the Assistant Secretary.
Sec. 1.2 What functions are assigned to OWCP?
The Assistant Secretary of Labor for Employment Standards has
delegated authority and assigned responsibility to the Director of OWCP
for the Department of Labor's programs under the following statutes:
(a) The Federal Employees' Compensation Act, as amended and
extended (5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains
to the Employees' Compensation Appeals Board.
(b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
(c) The War Claims Act (50 U.S.C. App. 2003).
(d) The Energy Employees Occupational Illness Compensation Program
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities,
pursuant to Executive Order 13179 (``Providing Compensation to
America's Nuclear Weapons Workers'') of December 7, 2000, assigned to
the Secretary of Health and Human Services, the Secretary of Energy and
the Attorney General.
(e) The Longshore and Harbor Workers' Compensation Act, as amended
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with
respect to administrative law judges in the Office of Administrative
Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review
Board; and activities, pursuant to 33 U.S.C. 941, assigned to the
Assistant Secretary of Labor for Occupational Safety and Health.
(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et
seq.).
Sec. 1.3 What rules are contained in this chapter?
The rules in this chapter are those governing the OWCP functions
under the Federal Employees' Compensation Act, the War Hazards
Compensation Act, the War Claims Act and the Energy Employees
Occupational Illness Compensation Program Act of 2000.
Sec. 1.4 Where are other rules concerning OWCP functions found?
(a) The rules of the OWCP governing its functions under the
Longshore and Harbor Workers' Compensation Act and its extensions are
set forth in subchapter A of chapter VI of this title.
(b) The rules of the OWCP governing its functions under the Black
Lung Benefits Act program are set forth in subchapter B of chapter VI
of this title.
(c) The rules and regulations of the Employees' Compensation
Appeals Board are set forth in chapter IV of this title.
(d) The rules and regulations of the Benefits Review Board are set
forth in Chapter VII of this title.
Sec. 1.5 When was the former Bureau of Employees' Compensation
abolished?
By Secretary of Labor's Order issued September 23, 1974 (39 FR
34723), issued concurrently with Employment Standards Order 2-74 (39 FR
34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32
FR 12979), which had delegated authority and assigned responsibility
for the various workers' compensation programs enumerated in Sec. 1.2,
except the Black Lung Benefits Program and the Energy Employees
Occupational Illness Compensation Program not then in existence, to the
Director of the former Bureau of Employees' Compensation.
Sec. 1.6 How were many of OWCP's current functions administered in
the past?
(a) Administration of the Federal Employees' Compensation Act and
the Longshore and Harbor Workers' Compensation Act was initially vested
in an independent establishment known as the U.S. Employees'
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR,
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the
Commission was abolished and its functions were transferred to the
Federal Security Agency to be performed by a newly created Bureau of
Employees' Compensation within such Agency. By Reorganization Plan No.
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat.
1271), said Bureau was transferred to the Department of Labor (DOL),
and the authority formerly vested in the Administrator, Federal
Security Agency, was vested in the Secretary of Labor. By
Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp.,
page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to
make from time to time such provisions as he shall deem appropriate,
authorizing the performance of any of his functions by any other
officer, agency, or employee of the DOL.
(b) In 1972, two separate organizational units were established
within the Bureau: an Office of Workmen's Compensation Programs (37 FR
20533) and an Office of Federal Employees' Compensation (37 FR 22979).
In 1974, these two units were
[[Page 78534]]
abolished and one organizational unit, the Office of Workers'
Compensation Programs, was established in lieu of the Bureau of
Employees' Compensation (39 FR 34722).
0
2. Subchapter C consisting of part 30 is revised to read as follows:
Subchapter C--Energy Employees Occupational Illness Compensation
Program Act of 2000
PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED
Subpart A--General Provisions
Introduction
Sec.
30.0 What are the provisions of EEOICPA, in general?
30.1 What rules govern the administration of EEOICPA and this
chapter?
30.2 In general, how have the tasks associated with the
administration of the EEOICPA claims process been assigned?
30.3 What do these regulations contain?
Definitions
30.5 What are the definitions used in this part?
Information in Program Records
30.10 Are all OWCP records relating to claims filed under EEOICPA
considered confidential?
30.11 Who maintains custody and control of claim records?
30.12 What process is used by a person who wants to obtain copies of
or amend EEOICPA claim records?
Rights and Penalties
30.15 May EEOICPA benefits be assigned, transferred or garnished?
30.16 What penalties may be imposed in connection with a claim under
the Act?
30.17 Is a beneficiary who defrauds the government in connection
with a claim for EEOICPA benefits still entitled to those benefits?
Subpart B--Filing Claims; Evidence and Burden of Proof; Special
Procedures for Certain Cancer Claims
Filing Claims for Benefits Under EEOICPA
30.100 In general, how does an employee file an initial claim for
benefits?
30.101 In general, how is a survivor's claim filed?
30.102 In general, how does an employee file a claim for additional
impairment or wage-loss under Part E of EEOICPA?
30.103 How does a claimant make sure that OWCP has the evidence
necessary to process the claim?
Verification of Alleged Employment
30.105 What must DOE do after an employee or survivor files a claim?
30.106 Can OWCP request employment verification from other sources?
Evidence and Burden of Proof
30.110 Who is entitled to compensation under the Act?
30.111 What is the claimant's responsibility with respect to burden
of proof, production of documents, presumptions, and affidavits?
30.112 What kind of evidence is needed to establish covered
employment and how will that evidence be evaluated?
30.113 What are the requirements for written medical documentation,
contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish a compensable
medical condition and how will that evidence be evaluated?
Special Procedures for Certain Radiogenic Cancer Claims
30.115 For those radiogenic cancer claims that do not seek benefits
under Part B of the Act pursuant to the Special Exposure Cohort
provisions, what will OWCP do once it determines that an employee
contracted cancer?
Subpart C--Eligibility Criteria
General Provisions
30.200 What is the scope of this subpart?
Eligibility Criteria for Claims Relating to Covered Beryllium Illness
Under Part B of EEOICPA
30.205 What are the criteria for eligibility for benefits relating
to beryllium illnesses covered under Part B?
30.206 How does a claimant prove that the employee was a ``covered
beryllium employee'' exposed to beryllium dust, particles or vapor
in the performance of duty?
30.207 How does a claimant prove a diagnosis of a beryllium disease
covered under Part B?
Eligibility Criteria for Claims Relating to Radiogenic Cancer Under
Parts B and E of EEOICPA
30.210 What are the criteria for eligibility for benefits relating
to radiogenic cancer?
30.211 How does a claimant establish that the employee has or had
contracted cancer?
30.212 How does a claimant establish that the employee contracted
cancer after beginning employment at a DOE facility, an atomic
weapons employer facility or a RECA section 5 facility?
30.213 How does a claimant establish that the radiogenic cancer was
at least as likely as not related to employment at the DOE facility,
the atomic weapons employer facility, or the RECA section 5
facility?
30.214 How does a claimant establish that the employee is a member
of the Special Exposure Cohort?
30.215 How does a claimant establish that the employee has sustained
an injury, illness, impairment or disease as a consequence of a
diagnosed cancer?
Eligibility Criteria for Claims Relating to Chronic Silicosis Under
Part B of EEOICPA
30.220 What are the criteria for eligibility for benefits relating
to chronic silicosis?
30.221 How does a claimant prove exposure to silica in the
performance of duty?
30.222 How does a claimant establish that the employee has been
diagnosed with chronic silicosis or has sustained a consequential
injury, illness, impairment or disease?
Eligibility Criteria for Certain Uranium Employees Under Part B of
EEOICPA
30.225 What are the criteria for eligibility for benefits under Part
B of EEOICPA for certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee
has sustained a consequential injury, illness, impairment or
disease?
Eligibility Criteria for Other Claims Under Part E of EEOICPA
30.230 What are the criteria necessary to establish that an employee
contracted a covered illness under Part E of EEOICPA?
30.231 How does a claimant prove employment-related exposure to a
toxic substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that the employee has been
diagnosed with a covered illness, or sustained an injury, illness,
impairment or disease as a consequence of a covered illness?
Subpart D--Adjudicatory Process
30.300 What process will OWCP use to decide claims for entitlement
and to provide for administrative review of those decisions?
30.301 May subpoenas be issued for witnesses and documents in
connection with a claim under Part B of EEOICPA?
30.302 Who pays the costs associated with subpoenas?
30.303 What information may OWCP request in connection with a claim
under Part E of EEOICPA?
Recommended Decisions on Claims
30.305 How does OWCP determine entitlement to EEOICPA compensation?
30.306 What does the recommended decision contain?
30.307 To whom is the recommended decision sent?
Hearings and Final Decisions on Claims
30.310 What must the claimant do if he or she objects to the
recommended decision or wants to request a hearing?
30.311 What happens if the claimant does not object to the
recommended decision or request a hearing within 60 days?
30.312 What will the FAB do if the claimant objects to the
recommended decision but does not request a hearing?
30.313 How is a review of the written record conducted?
30.314 How is a hearing conducted?
30.315 May a claimant postpone a hearing?
30.316 How does the FAB issue a final decision on a claim?
[[Page 78535]]
30.317 Can the FAB request a further response from the claimant or
return a claim to the district office?
30.318 Can the FAB consider objections to HHS's reconstruction of a
radiation dose or to the guidelines OWCP uses to determine if a
claimed cancer was at least as likely as not related to employment?
30.319 May a claimant request reconsideration of a final decision of
the FAB?
Reopening Claims
30.320 Can a claim be reopened after the FAB has issued a final
decision?
Subpart E--Medical and Related Benefits
Medical Treatment and Related Issues
30.400 What are the basic rules for obtaining medical treatment?
30.401 What are the special rules for the services of chiropractors?
30.402 What are the special rules for the services of clinical
psychologists?
30.403 Will OWCP pay for the services of an attendant?
30.404 Will OWCP pay for transportation to obtain medical treatment?
30.405 After selecting a treating physician, may an employee choose
to be treated by another physician instead?
30.406 Are there any exceptions to these procedures for obtaining
medical care?
Directed Medical Examinations
30.410 Can OWCP require an employee to be examined by another
physician?
30.411 What happens if the opinion of the physician selected by OWCP
differs from the opinion of the physician selected by the employee?
30.412 Who pays for second opinion and referee examinations?
Medical Reports
30.415 What are the requirements for medical reports?
30.416 How and when should medical reports be submitted?
30.417 What additional medical information may OWCP require to
support continuing payment of benefits?
Medical Bills
30.420 How should medical bills and reimbursement requests be
submitted?
30.421 What are the time frames for submitting bills and
reimbursement requests?
30.422 If an employee is only partially reimbursed for a medical
expense, must the provider refund the balance of the amount paid to
the employee?
Subpart F--Survivors; Payments and Offsets; Overpayments
Survivors
30.500 What special statutory definitions apply to survivors under
EEOICPA?
30.501 What order of precedence will OWCP use to determine which
survivors are entitled to receive compensation under EEOICPA?
30.502 When is entitlement for survivors determined for purposes of
EEOICPA?
Payment of Claims and Offset for Certain Payments
30.505 What procedures will OWCP follow before it pays any
compensation?
30.506 To whom and in what manner will OWCP pay compensation?
30.507 What compensation will be provided to covered Part B
employees who only establish beryllium sensitivity under Part B of
EEOICPA?
30.508 What is beryllium sensitivity monitoring?
30.509 Under what circumstances may a survivor claiming under Part E
of the Act choose to receive the benefits that would otherwise be
payable to a covered Part E employee who is deceased?
Overpayments
30.510 How does OWCP notify an individual of a payment made on a
claim?
30.511 What is an ``overpayment'' for purposes of EEOICPA?
30.512 What does OWCP do when an overpayment is identified?
30.513 Under what circumstances may OWCP waive recovery of an
overpayment?
30.514 If OWCP finds that the recipient of an overpayment was not at
fault, what criteria are used to decide whether to waive recovery of
it?
30.515 Is a recipient responsible for an overpayment that resulted
from an error made by OWCP?
30.516 Under what circumstances would recovery of an overpayment
defeat the purpose of the Act?
30.517 Under what circumstances would recovery of an overpayment be
against equity and good conscience?
30.518 Can OWCP require the recipient of the overpayment to submit
additional financial information?
30.519 How does OWCP communicate its final decision concerning
recovery of an overpayment?
30.520 How are overpayments collected?
Subpart G--Special Provisions
Representation
30.600 May a claimant designate a representative?
30.601 Who may serve as a representative?
30.602 Who is responsible for paying the representative's fee?
30.603 Are there any limitations on what the representative may
charge the claimant for his or her services?
Third Party Liability
30.605 What rights does the United States have upon payment of
compensation under EEOICPA?
30.606 Under what circumstances must a recovery of money or other
property in connection with an illness for which benefits are
payable under EEOICPA be reported to OWCP?
30.607 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time)
treated for purposes of reporting the recovery?
30.608 How does the United States calculate the amount to which it
is subrogated?
30.609 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an illness covered by
EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to a covered Part B employee, a covered Part E
employee or an eligible surviving beneficiary as a result of an
insurance policy which the employee or eligible surviving
beneficiary has purchased a recovery that must be reported to OWCP?
30.611 If a settlement or judgment is received for more than one
medical condition, can the amount paid on a single EEOICPA claim be
attributed to different conditions for purposes of calculating the
amount to which the United States is subrogated?
Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons
Employers
30.615 What type of tort suits filed against beryllium vendors or
atomic weapons employers may disqualify certain claimants from
receiving benefits under Part B of EEOICPA?
30.616 What happens if this type of tort suit was filed prior to
October 30, 2000?
30.617 What happens if this type of tort suit was filed during the
period from October 30, 2000 through December 28, 2001?
30.618 What happens if this type of tort suit was filed after
December 28, 2001?
30.619 Do all the parties to this type of tort suit have to take
these actions?
30.620 How will OWCP ascertain whether a claimant filed this type of
tort suit and if he or she has been disqualified from receiving any
benefits under Part B of EEOICPA?
Coordination of Part E Benefits With State Workers' Compensation
Benefits
30.625 What does ``coordination of benefits'' mean under Part E of
EEOICPA?
30.626 How will OWCP coordinate compensation payable under Part E of
EEOICPA with benefits from state workers' compensation programs?
30.627 Under what circumstances will OWCP waive the statutory
requirement to coordinate these benefits?
Subpart H--Information for Medical Providers
Medical Records and Bills
30.700 What kind of medical records must providers keep?
30.701 How are medical bills to be submitted?
30.702 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
30.703 What are the time limitations on OWCP's payment of bills?
Medical Fee Schedule
30.705 What services are covered by the OWCP fee schedule?
[[Page 78536]]
30.706 How are the maximum fees defined?
30.707 How are payments for particular services calculated?
30.708 Does the fee schedule apply to every kind of procedure?
30.709 How are payments for medicinal drugs determined?
30.710 How are payments for inpatient medical services determined?
30.711 When and how are fees reduced?
30.712 If OWCP reduces a fee, may a provider request reconsideration
of the reduction?
30.713 If OWCP reduces a fee, may a provider bill the employee for
the balance?
Exclusion of Providers
30.715 What are the grounds for excluding a provider for payment
under this part?
30.716 What will cause OWCP to automatically exclude a physician or
other provider of medical services and supplies?
30.717 When are OWCP's exclusion procedures initiated?
30.718 How is a provider notified of OWCP's intent to exclude him or
her?
30.719 What requirements must the provider's reply and OWCP's
decision meet?
30.720 How can an excluded provider request a hearing?
30.721 How are hearings assigned and scheduled?
30.722 How are subpoenas or advisory opinions obtained?
30.723 How will the administrative law judge conduct the hearing and
issue the recommended decision?
30.724 How can a party request review by OWCP of the administrative
law judge's recommended decision?
30.725 What are the effects of non-automatic exclusion?
30.726 How can an excluded provider be reinstated?
Subpart I--Wage-Loss Determinations Under Part E of EEOICPA
General Provisions
30.800 What types of wage-loss are compensable under Part E of
EEOICPA?
30.801 What special definitions does OWCP use in connection with
Part E wage-loss determinations?
Evidence of Wage-Loss
30.805 What evidence does OWCP use to determine a covered Part E
employee's average annual wage and whether he or she experienced
compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence in support of a
different determination of average annual wage and/or wage-loss than
that found by OWCP?
Determinations of Average Annual Wage and Percentages of Loss
30.810 How will OWCP calculate the average annual wage of a covered
Part E employee?
30.811 How will OWCP calculate the duration and extent of a covered
Part E employee's initial period of compensable wage-loss?
30.812 May a covered Part E employee claim for subsequent periods of
compensable wage-loss?
Special Rules for Certain Survivor Claims Under Part E of EEOICPA
30.815 Are there special rules that OWCP will use to determine the
extent of a deceased covered Part E employee's compensable wage-
loss?
Subpart J--Impairment Benefits Under Part E of EEOICPA
General Provisions
30.900 Who can receive impairment benefits under Part E?
30.901 How does OWCP determine the extent of an employee's
impairment that is due to a covered illness contracted through
exposure to a toxic substance at a DOE facility or a RECA section 5
facility, as appropriate?
30.902 How will OWCP calculate the amount of the award of impairment
benefits that is payable under Part E?
Medical Evidence of Impairment
30.905 How may an impairment evaluation be obtained?
30.906 Who will pay for an impairment evaluation?
30.907 Can an impairment evaluation obtained by OWCP be challenged
prior to issuance of the recommended decision?
30.908 How will the FAB evaluate new medical evidence submitted to
challenge the impairment determination in the recommended decision?
Ratable Impairments
30.910 Will an impairment that cannot be assigned a numerical
percentage using the AMA's Guides be included in the impairment
rating?
30.911 Does maximum medical improvement always have to be reached
for an impairment to be included in the impairment rating?
30.912 Can a covered Part E employee receive benefits for additional
impairment following an award of such benefits by OWCP?
Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C.
7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labo |
