Attention: This bulletin has been superseded and is inactive.

EEOICPA BULLETIN NO.03-27

Issue Date: May 28, 2003

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Effective Date: May 28, 2003

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Expiration Date: May 29, 2004

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Subject: Establishing covered subcontractor employment.

Background: The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) extends coverage to subcontractors who have been employed by the Department of Energy (DOE) or a beryllium vendor to perform services at certain covered facilities. Subcontractors of Atomic Weapons Employers are not eligible per 42 U.S.C. §7384l (3). In addition, subcontractor employees who were employed by a DOE facility or beryllium vendor performing activities related to construction and or maintenance are covered employees as defined by section 7384l (B)(11) of EEOICPA and are not limited to the criteria defined under duty station.

For the purposes of this program, the following definitions will apply:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.

Service – In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing such services would be janitors, construction and maintenance workers.

Delivery of Goods- The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including workers involved in the delivery and loading or unloading of goods for construction and or maintenance activities.

Duty Station – The physical site where a subcontractor employee reports or reported to work at a DOE or beryllium vendor facility. Construction and maintenance workers are deemed to report directly to a DOE facility or Beryllium vendor in instances where they reported to a union hall or a construction or maintenance contracting site and were “dispatched” to a DOE or beryllium vendor facility. Other service contract employees are required to have reported to work at a DOE facility or beryllium vendor.

Contract – An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”

Establishing covered employment for subcontractor employees under the EEOICPA may be complex. The potential exists for hundreds of subcontractor employees to have been engaged, at various times, in employment related activities at DOE and beryllium vendor facilities. In most instances, personnel records pertaining to subcontractors are difficult to locate. Records that do exist, such as security logs or health records are often insufficient to reliably verify employment for a particular employee. As a consequence, the CE must sometimes use affidavits and other types of evidence that have varying degrees of probative value in determining the factual basis of a claim. Given the complexity of establishing covered employment for subcontractor employment, detailed procedural guidance is required.

Reference: 42 U.S.C. § 7384l(7), 42 U.S.C. § 7384l(11)

Purpose: To provide guidance on establishing covered employment for subcontractor employees.

Applicability: All staff.

Actions:

1. Upon the initial review of a non-RECA primary claim, the CE must ensure two criteria are met. First, the CE is to decide whether the claimed condition on the EE-1 or EE-2, is appropriate for the type of employment facility where employment is alleged to have occurred. For example, a claim for beryllium sensitivity or chronic beryllium disease must indicate employment for a beryllium vendor or a DOE facility where beryllium was present; chronic silicosis must indicate employment mining tunnels at DOE facilities in Nevada or Alaska; or cancer must indicate employment at a DOE facility or atomic weapons employer. Second, if a covered condition has been claimed, the medical documentation must substantiate the presence of cancer, beryllium illness, or silicosis (EEOICPA PM 2-400). If the evidence of record does not satisfy either of these initial elements, the CE must request such evidence from the claimant. After appropriate development, the CE is to determine whether or not the evidence is sufficient to proceed with additional development or that the claim is to be denied for failure to establish a covered condition.

2. After it is determined that a covered medical condition has been claimed, the CE is to review the employment history provided on the EE-3(Employment History Form)or other pertinent employment documentation provided by the claimant. The first item that the CE must discern is the name of the employer. An employer can be an individual or a private business that hired the employee to perform a service in exchange for a wage. In order for a subcontractor employee to be determined to have performed work or labor for DOE or a beryllium vendor, the individual must have performed a “service” for the benefit of the DOE or beryllium vendor within the boundaries of the facility. For all such employees, mere delivery of goods alone, including the loading or unloading of goods, is insufficient to establish that a service was performed for the benefit of DOE or beryllium vendor. For all such employees, the employee must establish that his/her duty station is/was on the premise of the DOE or beryllium vendor facility. Construction or maintenance workers who initially report to a union hall or construction or maintenance facility but are then “dispatched” to a DOE or beryllium vendor facility to perform these types of services are deemed to have a duty station at the DOE or beryllium vendor facility. Examples of jobs associated with construction and maintenance include: asbestos workers, boiler workers, bricklayers, carpenters, electrical workers, elevator constructors, iron workers, laborers, operating engineers, plasterers and cement masons, painters, roofers, sheet metal workers, plumbers, construction workers, and pipe fitters.

3. Once the CE has reviewed all employment documentation initially submitted by the claimant, he or she must compare the claimed work history against the web-based list of covered facilities provided by the Department of Energy as per established procedures.

Subcontractors will not appear on the web based DOE list of covered facilities. Only major contractors are listed under each facility. The web based list contains the name of the facility, the facility type, dates and a brief historical summary of the facility which should be utilized by the CE throughout the development of employment.

4. If the CE compares the work history provided by the claimant with the list of covered facilities and is unable to locate the claimed facility, the CE prepares a letter to the claimant. The letter advises the claimant that he/she has not identified employment that would qualify for coverage under the EEOICPA. The letter instructs the claimant to provide clarification or evidence within 30 days as to whether or not employment occurred at one of the covered facilities. If after thirty days no response or evidence is received to identify employment at a covered facility, the CE may prepare a recommended decision denying coverage due to the fact that employment at a covered facility has not been identified.

5. Once the CE has determined that the claimant identified employment with a subcontractor performing covered services at a DOE or beryllium vendor facility during a covered time period, the CE must determine the relationship between the employer and the facility where the employment was claimed. The CE reviews the name of the DOE facility claimed; the city, state or any other description of where the employment activities took place (duty station); the name of the company the employee worked for; and the type of services performed. The CE will also consider the employee’s position title to determine the type of services performed. Based on this information, the CE will often be able to infer the relationship.

An example of direct employment for a Be vendor (a DOE contractor) is employment for Brush Wellman in Elmore, Ohio. Alternatively, if a claimant states that he/she worked for ABC Electric Company at the Brush Wellman facility in Elmore, Ohio, the CE is to proceed with an initial finding that the claimant is identifying subcontractor employment, hired by ABC Electric Company to perform work or labor at a covered Be vendor facility. An example of direct DOE employment would be if the claimant identified employment at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH, working for Goodyear Atomic Corporation, an established contractor at the Portsmouth GDP. However, if the claimant stated he/she was hired by Grinnel Corporation to perform work for the Goodyear Atomic Corporation, the CE would find that the claimant is identifying subcontractor employment by an independent contractor (Grinnel Corporation) hired to perform work or labor at a covered facility.

Caution: The CE must be careful to note that in some instances, a specific employer may serve as a contractor at one facility, and a subcontractor at another. Moreover, the CE should be aware that different names can sometimes refer to the same facility e.g. Berylco-Beryllium Corporation of America. Therefore, evidence must be thoroughly evaluated to determine whether the employee may have worked as a subcontractor at a DOE or beryllium vendor facility.

If the employee claims employment for a subcontractor, including construction and or maintenance, at a DOE facility or beryllium vendor and the CE identifies the contractor as a possible subcontractor, the code “S” (subcontractor) must be entered in the “Employment Classification” screen in ECMS indicating a subcontractor has been potentially identified per EEOICPA Bulletin 03-05. If the relationship is unclear to the CE further development of the situation is necessary.

If the employee has claimed subcontractor employment during a

period that the facility was designated an AWE, the CE is to prepare a letter to the claimant advising him or her that such employment is not covered under the Act. The CE is to reference 42 U.S.C. §7384l (3) and state that this section of the EEOICPA only extends coverage to direct employees of an AWE. For example, if a claimant states that the employee worked for XYZ Company at Simonds Saw & Steel, in Lockport, NY, the CE must make an initial finding the claimant is identifying employment that is not covered under the EEOICPA.

The claimant must be granted 30 days to either demonstrate direct employment for the AWE or other employment that would qualify him/her for consideration under the EEOICPA. If after thirty days the claimant has not provided a response, or produced a response that does not qualify him/her for further consideration, and has no other period of claimed employment that may qualify for benefits, the CE can proceed with a recommended denial of benefits on the grounds that there is no evidence of covered employment.

6. If the CE determines that the claimant is alleging employment at a covered facility but determines that the claimant was not performing a “service” as defined above, the CE prepares a letter to the claimant. The letter advises the claimant that he/she has not identified or submitted evidence that he/she performed a “service” for the benefit of the DOE as defined above. An example of a service is the installation or maintenance of electrical lines. However, the mere delivery of the material used to install the lines would not be a service. The claimant is to be provided 30 days to submit evidence that during his/her employment he/she performed a “service” for the benefit of the DOE. If after 30 days no response or evidence is submitted to establish that the claimant performed a service, the CE prepares a recommended decision denying coverage due to the fact that the evidence did not establish that the employee performed a service under the EEOICPA.

7. There are three developmental components that must be met before a decision of covered employment can be reached. The CE must determine whether 1) the claimed period of employment occurred during a covered time frame as alleged, 2) a contract to provide “covered services” existed between the claimed subcontractor and the DOE employer or Be vendor at a covered facility (during a covered time frame), and 3) whether employment activities (work or labor) took place on the premises of the covered facility.

8. The first developmental component in establishing covered subcontractor employment is to verify the claimed period of employment. The CE is to verify employment with the DOE as outlined in EEOICPA PM 2-400. The CE is to refer to EEOICPA Bulletin 02-34, “Procedures for using the on-line ORISE database,” for any facility that is included in the ORISE database.

9. The CE is to complete the Employee Information section on Form EE-5, Employment Verification Sheet, with the employee name, SSN, employer name and DOE facility where the employment is alleged to have occurred. The CE forwards Form EE-5, the DOE cover letter and copies of Forms EE-1 or EE-2 and Form EE-3 (or other employment evidence) to the appropriate DOE point of contact (POC) or the appropriate corporate verifier.

The DOE should complete Form EE-5 by verifying the claimed employment, to include the dates and location of employment activities and whether the employee was a DOE employee, contractor or subcontractor. The DOE should supply copies of any records pertaining to the employee such as, a security clearance record, security logs, health records or dose records that would assist the DOL in verifying employment, verifying a contractual relationship, or respond that no evidence exists. Any primary records connected to radiation dose monitoring should not be submitted (these will be requested by NIOSH at a later date if a non-SEC cancer is established), but the DOE should be asked to summarize the information reported in such records, i.e., the complete monitoring history dates will assist in determining covered SEC employment for 250 days and whether a contract existed between the employer and the DOE.

10. At the same time as the development of employment with the DOE, the CE will prepare an initial development letter to the claimant and request a signed Form SSA-581 and any other employment information that would establish covered subcontractor employment.

The letter outlines the types of evidence that could establish covered employment including affidavits, pay stubs, tax records, union documentation, pension records and copies of contracts if available. The CE will not ask the claimant to provide a copy of the original contract. The CE will provide the claimant with Form SSA-581 and instructions for its completion. The CE advises the claimant that in the absence of alternative employment evidence, the DOL will request SSA records on receipt of the signed form. The CE provides the claimant with 30 days to provide a response and a signed Form SSA-581.

11. Once a response is received from the DOE, the CE is to review the evidence to determine if it is sufficient to establish the components of covered employment. If the DOE or corporate verifier has reported on the EE-5 that the claimed period of employment is completely accurate, the CE can find that 1) employment has been verified, 2) that a contract existed between the subcontractor and the DOE employer and 3) that the employment activities took place on the premises of the covered facility. If the DOE was unable to verify employment as alleged, the CE will need to review Form EE-5 and any other information provided by the DOE. It may be that the DOE is able to provide evidence substantiating one or two of the required covered employment components, but not all. For example, the DOE may not have sufficient evidence to verify the claimed dates of employment, but they do know that the claimed employer (subcontractor) did have a contract to provide services at a covered facility during a specified time frame. In any event, if the DOE is unable to verify employment, the CE is to continue to develop employment to meet the three requirements of covered subcontractor employment as indicated. The CE must enter Code ER or CR as appropriate in the claims status history screen in ECMS with the effective date as the date received in the DO for any claim in which the DOE provided a complete response, a response in which they provided all available information, or when they have no employment records (EEOICPA Bulletin 03-07).

12. On receipt of a claimant’s response to the initial development letter, which should include a signed SSA-581, the CE is to review any documentation submitted to determine if the evidence submitted proves that the employee worked for the claimed employer. The CE has the discretion to determine whether the evidence is sufficient to prove employment without information from the SSA (the claimant may have submitted Forms W-2 or other tax related documents). However, the existing evidence must be of sufficient quality to convince the CE that the claim of the employee is accurate. In the recommended decision, the CE must include a complete and thorough discussion of the rationale and evidence upon which the conclusions are based. Outside of verification by the DOE or a corporate verifier, a single source of evidence affirming the period of claimed employment is generally not sufficient. It will take multiple pieces of collaborative documentation to reliably establish the accuracy of claimed employment. Moreover, should the CE decide that the SSA employment verification is unnecessary to prove the employment occurred as alleged, he or she must continue to develop the two remaining components of covered subcontractor employment, i.e., evidence of a contractual relationship and that the employee worked on the premises of a covered facility.

If the CE decides that the evidence proves the claim of employment without the SSA records, it must also be true that the SSA records will not assist in a determination concerning the existence of a contract or the presence of the employee on the premises of the covered facility.

However, if the CE reviews the information from the claimant and is not convinced that it is sufficient to verify employment, the SSA-581 claims package should immediately be referred to the National Office.

13. After the SSA responds to the request for employment evidence, the CE will need to review the information in conjunction with the other evidence in the case. The CE must determine whether the first component of covered employment, proving that the employee worked for the employer as alleged, is substantiated. On receipt of SSA records requested by the NO the CE enters the SR code with the effective date the response is received in the office regardless of whether the information addresses all, part, or one of the employment periods (EEOICPA Bulletin 02-14).

14. For more detailed specifics regarding the verification of employment for a DOE facility and or beryllium vendor, the CE should refer to EEOICPA Bulletin 02-02.

15. It is not necessary to prove beyond a reasonable doubt the accuracy of the alleged period of employment. Rather, the evidence must be of such a convincing quality to assure the adjudicator of the reasonableness of the claim. The CE has the discretion to assign probative value to certain forms of evidence. For example, the CE may find that an affidavit from a former CEO of the employer has significantly more probative value than that of one from a relative who may benefit from any award granted. The CE must use his or her own judgment to ascertain whether the evidence taken as a whole is sufficient to verify employment. In most instances, it will be the totality of multiple separate pieces of different evidence that prove that the employee worked for the employer as alleged. A single affidavit affirming the claimed period of employment at a covered facility will generally not suffice. On the other hand, for example, if the CE obtains an affidavit from a co-worker in conjunction with notes from the work site nurse indicating visits for check-ups, a stronger case can be made affirming the claim of employment.

16. If the CE determines that the evidence does not establish the claimed period of employment, the CE is to issue a recommended decision to deny based on lack of evidence to establish covered employment at a DOE facility.

17. If the CE concludes that the evidence is sufficient to verify the claimed dates of covered employment, it is then necessary to determine the existence of a contractual connection between the employee’s primary employer and the covered beryllium vendor or DOE facility. This is the second component of covered contractual employment. The evidence must establish that a contractual relationship existed, that it existed during a covered time frame for the facility, and that the contract was for services that constitute covered services.

To establish this component of covered employment, it is not necessary for the claimant, the Department of Energy or another entity to provide the actual contract or subcontract for the CE to affirm the existence of covered employment (although if available it would assist in establishing a contractual relationship). It is the totality of all the evidence received that will determine whether a contract or subcontract did exist.

For example, if the claimant is alleging that he/she worked as an electrician installing and/or repairing electrical lines for ABC Electric at the Medina Facility in Texas during a covered time frame, the SSA has confirmed employment for that same period, and the Electrician Local Union provided a statement on union letterhead that states they contracted with ABC Electric Co. to perform work at the Medina Facility during the covered time period, the CE can proceed with a finding that the employee performed a covered service at a covered facility during a covered time period for a DOE subcontractor employer.

Another example would be if the claimant is alleging he/she worked as a construction laborer for Grinnel at the Portsmouth GDP in Piketon, OH and the DOE provided a Personnel Clearance Master Card (security clearance record) indicating the employee’s name and job title, the name of the DOE facility, the company requesting security clearance (Grinnel), and the dates clearance was requested and/or granted, the CE can proceed with a finding that the Grinnel had a contract with Portsmouth GDP as a subcontractor. A Personnel Clearance Master Card is evidence that security clearance was requested by the subcontractor for the employee to perform work at the DOE facility and is sufficient to establish evidence of a contractual relationship (20 CFR 30.206(d)(1)). However, it is not sufficient, in and of itself, to establish that the individual employee was present on site at the facility.

18. If the CE determines that the evidence does not establish that a contractual relationship existed between the claimed employer and the DOE facility, the CE issues a recommended decision to deny based on lack of evidence to establish a contractual relationship (component 2).

19. Should the evidence substantiate that a contract or subcontract existed during a covered time period, the CE must then make a finding concerning the employee’s duty station and the type of work performed. The employee must have performed a service on the premise of the facility. With the exception of construction and maintenance workers, the employee must also have reported to work at the facility (duty station must have been at the facility).

Construction and maintenance workers are determined to have a duty station at the covered facility if they performed construction or maintenance on the premise.

20. The premise of a covered facility is defined differently according to its classification under the statute.

42 U.S.C. 7384l (12) defines a DOE facility as any building, structure, or premise, including the grounds upon which such building structure, or premise is located (A) in which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds or operations covered by Executive Order No. 12344, dated 2/1/82 pertaining to the Naval Nuclear Propulsion Program); and (B) with regard to which the DOE has or had (i) a proprietary interest; or(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

42 U.S.C. 7384n(a) provides that a covered beryllium employee shall, in the absence of substantial evidence to the contrary, be determined to have been exposed to beryllium in the performance of duty for the purpose of the compensation program if, and only if, the covered beryllium employee was 1) employed at a DOE facility; or 2) present at a DOE facility or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the DOE; during a period when beryllium dust, particles, or vapor may have been present at such facility.

In making a finding regarding the presence of the employee on the premise of the covered facility, the ideal form of the evidence will be security logs, health records or a summary of the radiation dose monitoring. Security logs are defined as signature logs that provide the employees name and dates of entry or exit at the DOE facility. They are different from security clearance records in that they provide evidence of entry onto the premises of the facility, whereas the security clearance documents just provide evidence that security clearance was requested but does not establish presence on the facility.

In many instances the CE will be required to utilize affidavits (Form EE-4 or other form of affidavit). It will be left to the judgment of the CE to determine whether the evidence of file is sufficient to establish the presence of the employee on the premises of the covered facility. As a general rule, a single affidavit from a spouse or family member without other collaborative documentation is insufficient to make a reasonable finding of fact. However, an affidavit from a co-worker is of much greater value. Other examples of documentation are punch cards, time and attendance forms, minutes from employment related meeting(s) that list the claimant in attendance and written correspondence from the employer.

21. If the CE can verify that the employee worked for a subcontractor during a covered time frame on the premises of a designated DOE or beryllium vendor facility, a finding can be made for covered employment. In the case of a subcontractor employee not involved with construction or maintenance, the CE must also find that the employee’s duty station was at the facility. The CE may then proceed with the normal adjudication of any outstanding issues regarding the claim.

22. If the CE cannot verify the employee’s presence on the premises of a designated DOE or beryllium vendor facility, and cannot verify the duty station if necessary, the CE issues a recommended decision to deny based on lack of evidence to place the claimant on site at the covered facility.

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, District Directors, Hearing Representatives, District Office Mail & File Sections