EEOICPA BULLETIN NO.06-03                      

 

Issue Date: November 8, 2005

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Effective Date: November 8, 2005

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Expiration Date: November 8, 2006

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NOTE: This bulletin replaces Bulletin 05-03, Processing Claims for Mallinckrodt Chemical Works, Destrehan Street Facility SEC Class, 1942 - 1948. The meaning of the term “Uranium Division” is clarified. It also corrects the description of the role the Department of Health and Human Services has in Special Exposure Cohort designations.

 

Subject:  Processing Claims for Mallinckrodt Chemical Works, Destrehan Street Facility SEC Class, 1942 - 1948

 

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 Uranium Division of Mallinckrodt Chemical Works, Destrehan Street Facility, St. Louis, Missouri, to have the Mallinckrodt Chemical Works 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 March 14, 2005, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add the Mallinckrodt Chemical Works as a SEC class. The Director of NIOSH also submitted a proposed decision on this petition. 

 

On April 11, 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 Uranium Division of Mallinckrodt Chemical Works, Destrehan Street Facility, during the period from 1942 through 1948 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.”   In other words, NIOSH has indicated that it is not feasible to undertake dose reconstructions for the class of employees employed at the Mallinckrodt Chemical Works for the period from 1942 through 1948.  In view of HHS’ explanation of the rationale for designating this class of employees as members of the SEC, HHS has determined that NIOSH cannot perform dose reconstructions for any cases, i.e., cases with either specified or non-specified cancers. 

 

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 April 11, 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 Uranium Division of Mallinckrodt Chemical Works, Destrehan Street Facility, St. Louis, Missouri.”

 

Purpose: To provide procedures for processing claims for the new SEC class at the Mallinckrodt Chemical Works, Destrehan Street Facility.  The new SEC class applies to DOE employees, DOE contractors or subcontractors employed by Mallinckrodt Chemical, during the period from 1942 through 1948 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. 

 

Actions:

 

1. The consideration of DOE employees, DOE contractors or subcontractors employed by the Mallinckrodt Chemical Works, Destrehan Street Facility, during the period from 1942 through 1948 encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.  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.  NIOSH will send a CD for each case with all 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.  The claims examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file. 

 

2.  When a case on the list is returned from NIOSH, a previously denied claim is reopened, a claim is remanded by FAB, or a new claim for compensation is submitted, the CE reviews the documentation submitted with the EE-1 or EE-2 and EE-3 forms.   Development of medical and employment information should proceed in the usual manner.  If the evidence is unclear as to whether employment falls within the new SEC class time period, the claimant should be asked to provide clarification.  The CE must review any documentation submitted by the claimant and undertake any additional development necessary to clarify the individual’s medical and employment status. 

 

3.  Based on this review, the CE 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 step #6. 

 

4.  The CE must verify that the employee worked for the DOE or a DOE contractor or subcontractor employed by the Uranium Division of Mallinckrodt Chemical Works at the Destrehan Street facility. The term “Uranium Division” includes work performed at any building, structure, or premise that is owned by the Mallinckrodt Chemical Company located within the area bounded in part by North Broadway, Angelroot Street, and Salisbury Street.  If the employee meets this criterion, the CE must determine whether the worker was employed at least 250 work days within the 1942 through 1948 period listed for the SEC class for the Mallinckrodt Chemical Works.  In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at Mallinckrodt Chemical Works Destrehan Street facility or in combination with work days for other SEC classes, e.g., the three gaseous diffusion plants and the Iowa Army Ammunition Plant (March 1949 - 1974).  If the employee does not meet any of the employment criteria, proceed to step #6. 

 

5.  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 claim and prepare a recommended decision.

 

6. As discussed earlier, HHS has determined that NIOSH cannot perform dose reconstructions for any cases, i.e., cases with either specified or non-specified cancers.  If the CE has determined that the person named in the claim has a non-specified cancer or does not meet the employment criteria of the SEC class, the CE should proceed in the usual manner for a denied claim and prepare a recommended decision.  However, HHS is considering the SEC petition for the period of 1949 to 1957 for the Mallinckrodt Chemical Works.  If any employment is present for this period, the CE must delay the decision to deny pending the HHS’ decision. 

 

7. If the claim includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s) and any secondary cancers that are metastases of the specified cancer(s).  Again, this is based on the HHS determination that NIOSH cannot perform dose reconstructions for any cases.

 

8. If a case on the list meets the SEC class criteria, but has a denied final decision, 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. § 30.320.

 

9. FAB personnel must be vigilant for any cases from the Mallinckrodt Chemical Works at the Destrehan Street facility that have a recommended decision to deny.  If the employee worked at the Mallinckrodt Chemical Works during the period from 1942 through 1948, has specified cancer, and meets the 250 work day requirement, the final decision must be reversed to accept 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