EEOICPA BULLETIN NO.05-06
Issue Date: September 6, 2005
Effective Date: September 6, 2005
Expiration Date: September 6, 2006
Subject: Processing Claims for Iowa Army Ammunition Plant SEC Class, 1949 - 1974
Background: Pursuant to the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) and 42 C.F.R. Part 83, a petition was filed on behalf of a class of workers from the Iowa Army Ammunition Plant (IAAP) in Burlington, Iowa, to have IAAP added to the Special Exposure Cohort (SEC).
The National Institute for Occupational Safety and Health (NIOSH) reviewed the petition and decided it qualified for evaluation under 42 C.F.R. Part § 83.13. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On May 18, 2005, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add the IAAP as a SEC class. The Director of NIOSH also submitted a proposed decision on this petition.
On May 20, 2005, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:
Employees of the Department of Energy (DOE) or DOE contractors or subcontractors employed by the Iowa Army Ammunition Plant, Line 1, during the period from March 1949 through 1974 and who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.
In their evaluation, NIOSH determined that, “… it lacks access to sufficient information to either estimate the maximum radiation dose for every type of cancer for which radiation doses are reconstructed that could have been incurred under plausible circumstances by any member of the class, or to estimate the radiation doses of members of the class more precisely than a maximum dose estimate with sufficient accuracy.”
In that report, the Secretary of Health and Human Services determined that it is not feasible to undertake dose reconstructions for the class of employees employed at Iowa Army Ammunition Plant, Line 1, for the period from March 1949 through 1974 based upon the site profile prepared by the NIOSH. Thus, it appears that the only dose reconstructions that can be completed for members of the designated class are dose reconstructions based upon actual measured exposure of the individual worker whose dose is being reconstructed. The DOL letter to NIOSH is included as Attachment 1.
A letter from NIOSH, dated July 19, 2005, further clarified the designation of Line 1 used in the SEC class definition. The letter stated, “The designation of ‘Line 1’ in this class definition should be considered inclusive of all workers and activities involved in AEC operations at IAAP and not limiting or excluding workers, activities, or site locations that may have been involved in those operations.” The NIOSH letter to DOL is included as Attachment 2.
The SEC designation is effective as of June 20, 2005, which is 30 days after the Secretary of the Department of HHS designated the class for addition to the SEC in a report to Congress. While Congress has the authority to reject the recommendation within 30 day time frame, no action was taken to contradict the addition of IAAP as a SEC class.
References: Energy Employees Occupational Illness Compensation Act of 2000, 42 U.S.C. § 7384 et seq.; 42 C.F.R. Part 83, Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort Under EEOICPA; and the May 20, 2005 report to Congress from the Secretary of HHS, entitled, “HHS Designation of Additional Members of the Special Exposure Cohort, Designating a Class of Employees from Iowa Army Ammunition Plant, Burlington, Iowa.”
Purpose: To provide procedures for processing claims for the new SEC class at the Iowa Army Ammunition Plant (IAAP). The new SEC class applies to DOE employees, DOE contractors or subcontractors employed by the IAAP and involved in AEC operations during the period from March 1949 through 1974 and who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters established for other classes of employees included in the SEC.
Applicability: All staff.
1. This new addition to the SEC affects the consideration of DOE employees, DOE contractors or subcontractors employed by the Iowa Army Ammunition Plant (IAAP), involved in AEC operations, during the period from March 1949 through 1974. It encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. The DEEOIC has identified all Part B claims that were denied or are at NIOSH for dose reconstruction and submitted a list of cases to the appropriate district office. All IAAP cases that were with NIOSH for dose reconstruction as of June 20, 2005 have been coded as “NW” in ECMS. NIOSH has sent a CD for each of those cases. The CD contains all of the information generated to date, e.g., CATI report, correspondence, and dose information. Also, included on the CD in the Correspondence Folder should be a copy of the NIOSH letter sent to each claimant informing them of the new SEC class and that their case is being returned to DOL for adjudication. A copy of the NIOSH letter to a claimant is included as Attachment 3. The claims examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file.
3. The CE must verify that the employee worked for the DOE or a DOE contractor or subcontractor employed by the IAAP and was involved in AEC operations. For cases that had been referred to NIOSH prior to the date the IAAP SEC class became effective, June 20, 2005, the CE should assume that the employee was involved in AEC operations, unless specific evidence exists to the contrary. For cases received by DOL after June 20, 2005, when the EE-5 Form is sent to DOE, the CE must specifically ask if the employee was involved in AEC operations at IAAP. If the returned EE-5 Form does not specifically affirm that the employee was involved in AEC operations at IAAP, the CE must ask the employee or survivor(s) to submit appropriate evidence, including an affidavit attesting to the employee’s involvement in AEC operations at IAAP. Lack of positive affirmation by DOE that an employee was involved in AEC operations is not sufficient basis to deny a claim. If a determination cannot be made, the claimant is to be given the benefit of the doubt.
4. Based on this review, the CE then determines whether the claimant has a specified cancer, as listed in DEEOIC Procedure Manual Chapter 2-600.5. If the employee has a specified cancer, proceed to the next step. If the employee does not have a specified cancer, proceed to Action #7.
5. If the employee meets this criterion, the CE must determine that the worker was employed at least 250 work days within the March 1949 through 1974 period listed for the SEC class for IAAP. In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at IAAP or in combination with work days for other SEC classes, e.g., the three gaseous diffusion plants and the Mallinckrodt Chemical Works in St. Louis (1942 -1948). If the employee does not meet any of the employment criteria, proceed to Action #7.
6. Once the CE has determined that the person named in the claim has a diagnosed specified cancer and meets the employment criteria of the SEC class, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision. Please note that if during the Part E claim review process for IAAP cases, information is found that specifically indicates that the employee was not involved in AEC operations, the district office should investigate further and take appropriate action, as necessary, including a determination if an overpayment was made.
7. As discussed earlier, the Secretary of Health and Human Services determined that it is not feasible for NIOSH to perform dose reconstructions for the class of employees involved in AEC operations at IAAP for the period from March 1949 through 1974. However, for cases with a non-specified cancer and/or that do not meet the employment criteria of the SEC class, NIOSH will attempt to perform dose reconstructions for members of the designated class, based upon actual measured exposure data for the individual workers.
For cases with specified cancer where the 250 work day requirement is not met, or cases with non-specified cancer, the case should be returned to NIOSH for a dose reconstruction based on personal exposure data. If dosimetry data are available, NIOSH will proceed with a dose reconstruction. Upon receipt of the dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision. The CE should code the case as “NI,” but should not delete the “NW” code already present in ECMS. If no dosimetry data are available, NIOSH will be unable to perform a dose reconstruction. NIOSH will send the claimant a letter stating that it was unable to perform a dose reconstruction (a copy is attached as Attachment 4). This letter will be included on the NIOSH CD in the Correspondence Folder and the CE must print out a hardcopy for inclusion in the case file. The CE proceeds in the usual manner and prepares a recommended decision to deny the claim.
8. If the claim includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any secondary cancers that are metastases of the specified cancer(s), and any non-specified cancers that have a dose reconstruction that resulted in a probability of causation of 50 percent or greater.
9. If a case with a denied final decision now meets the SEC class criteria, the CE must submit the case for reopening through the appropriate process in the district office. The case must be forwarded to the DEEOIC Director to reopen the claim per 20 C.F.R. Part § 30.320.
10. FAB personnel must be vigilant for any IAAP cases that have a recommended decision to deny. If the employee worked at IAAP and was involved in AEC operations during the period from March 1949 through 1974, has a specified cancer, and meets the 250 work day requirement, the recommended decision must be reversed and the case remanded in the usual manner.
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, Hearing Representatives, and District Office Mail & File Sections