EEOICPA BULLETIN NO.06-04                      

 

Issue Date: November 21, 2005

________________________________________________________________

 

Effective Date: November 21, 2005

________________________________________________________________

 

Expiration Date: November 21, 2006

________________________________________________________________

 

Subject:  Processing Claims for SEC Classes for Y-12 Plant, 1943 – 1947, and IAAP Radiographers, 1948 - 1949

 

Background:  Pursuant to the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) and 42 C.F.R. Part 83, petitions were filed on behalf of classes of workers from the Y-12 Plant in Oak Ridge, Tennessee, and the Iowa Army Ammunition Plant (IAAP), in Burlington, Iowa, to have these facilities added to the Special Exposure Cohort (SEC).

 

The National Institute for Occupational Safety and Health (NIOSH) reviewed the petitions and decided that both 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 July 26, 2005, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add the Y-12 Plant for the period 1943 to 1947 and the IAAP radiographers for the period 1948 to 1949 as new SEC classes. The Director of NIOSH also submitted proposed decisions on these petitions. 

 

On August 25, 2005, the Secretary of HHS designated the following classes for addition to the SEC in two separate reports to Congress.

 

Y-12 Plant, 1943 - 1947:

 

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked in uranium enrichment operations or other radiological activities at the Y-12 facility in Oak Ridge, Tennessee from March 1943 through December 1947 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 its 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.”

 

Also, NIOSH provided some information as to what constituted other radiological activities during this time period.  These activities included the development of beneficial radiological isotopes, development and testing of a neutron monitor, maintenance and use of a large Radium-226 sealed source, and thorium extraction. 

 

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 the Y-12 Plant from March 1943 through December 1947.  However, NIOSH has determined that it is possible to estimate the exposure that resulted from occupational medical X-ray doses alone to complete sufficiently accurate dose reconstruction for this class.  The DOL letter to NIOSH is included as Attachment 1.

 

IAAP Radiographers, 1948 - 1949:

 

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked as radiographers from May 1948 to March 1949 in support of Line 1 operations at the Iowa Army Ammunition Plant and who were employed for a number of work days aggregating at least 250 work days, occurring 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 its 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 radiographers who supported Line 1 operations at the Iowa Army Ammunition Plant from May 1948 through March 1949.  The DOL letter to NIOSH is included as Attachment 1.

 

The SEC designation for both of these classes became effective as of September 24, 2005, which was 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 the 30-day time frame, no action was taken to contradict the addition of the Y-12 Plant and the IAAP radiographers as new SEC classes.

 

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; the August 25, 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 Y-12 Plant, Oak Ridge, Tennessee;” and the August 25, 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 (IAAP), Burlington, Iowa.”

 

Purpose: To provide procedures for processing claims for the new SEC classes for the Y-12 Plant and IAAP radiographers.  The new SEC classes apply to DOE employees, DOE contractors or subcontractors employed at each of these facilities 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.  For the Y-12 Plant, workers must have been involved in uranium enrichment operations or other radiological activities during the period from March 1943 through December 1947.  For the IAAP radiographers, workers must have supported Line 1 operations from May 1948 to March 1949. 

 

Applicability: All staff. 

 

Actions:

 

1. These new additions to the SEC affect the consideration of DOE employees and DOE contractors or subcontractors employed at the Y-12 Plant from March 1943 through December 1947 and at IAAP (radiographers) from May 1948 to March 1949. 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 lists of cases to the appropriate district offices.  All Y-12 Plant and IAAP radiographer cases that were with NIOSH for dose reconstruction as of September 24, 2005 must be coded as “NW” in ECMS.  

 

NIOSH will provide two lists of employees at the Y-12 Plant during the SEC class period.  One list will cover employees with specified cancers and the other list will address employees with non-specified cancers.  NIOSH will return analysis records for all cases to the Jacksonville District Office along with a CD for each case.  Since there are only a few IAAP radiographer cases, these cases will be returned to the Denver District Office along with a CD for each case.  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 the claimant of the new SEC class and that his or her case is being returned to DOL for adjudication.  A copy of the NIOSH letter to a claimant is included as Attachments 2 and 3 for the Y-12 Plant and IAAP radiographers, respectively.  The claims examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file.

 

3.  For cases on both of NIOSH’s Y-12 Plant lists and the IAAP radiographer list, the CE must verify that the employee worked for the DOE or a DOE contractor or subcontractor employed by the Y-12 Plant or IAAP.  For the Y-12 Plant, the worker must have been involved in uranium enrichment operations or other radiological activities.  For the IAAP radiographers, they must have supported Line 1 operations.  For cases that had been referred to NIOSH prior to the date these SEC classes became effective, September 24, 2005, the CE should assume that the employee was involved in the specified activities, unless specific evidence exists to the contrary.  For cases received by DOL after September 24, 2005, when the EE-5 Form is sent to DOE the CE must specifically ask if the employee was involved in uranium enrichment operations or other radiological activities at the Y-12 Plant or radiography in support of Line 1 operations at IAAP. 

 

HHS defined “other radiological activities” at the Y-12 Plant as including the development of beneficial radiological isotopes, development and testing of a neutron monitor, maintenance and use of a large Radium 226 sealed source, and thorium extraction.  If the returned EE-5 Form does not specifically affirm that the employee was involved in uranium enrichment operations or other radiological activities at the Y-12 Plant or radiography in support of Line 1 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 the specified activities. Lack of positive affirmation by DOE that an employee was involved in the specified activities 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 listed periods for these two SEC classes.  For the Y-12 Plant that period is March 1943 through December 1947.  For IAAP radiographers that period is May 1948 to March 1949.  Please note that for the IAAP radiographers, the period most likely does not meet the 250 work day criterion.  Also, remember that an SEC class for IAAP exists for March 1949 to 1974.  In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at the Y-12 Plant or 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 classes, 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 Y-12 Plant or IAAP cases, information is found that specifically indicates that the employee was not involved in the specified activities, the district office should investigate further and take appropriate action, as necessary, including a determination if an overpayment was made.

 

7. As discussed earlier for the Y-12 Plant, 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 uranium enrichment operations or other radiological activities at the Y-12 Plant for the period from March 1943 through December 1947 with one exception.  NIOSH has determined that it is possible to estimate the exposure that resulted from occupational medical X-ray doses alone.  Accordingly, for cases with a non-specified cancer and/or that do not meet the employment criteria of the SEC class, the CE must refer these cases back to NIOSH to perform dose reconstructions using only the exposure that resulted from occupational annual medical X-ray doses. The CE should code these cases as “NI”.

 

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 “NR,” but should not delete the “NW” or “NI” code already present in ECMS. 

 

As discussed earlier for the IAAP radiographers, HHS has determined that NIOSH cannot perform dose reconstructions for any cases.  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 and have no other covered employment, the CE should proceed in the usual manner for a denied claim and prepare a recommended decision.  

 

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 Y-12 Plant or IAAP radiographer cases that have a recommended decision to deny.  If the employee worked at the Y-12 Plant or IAAP and was involved in specified activities for the specified periods, 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 

 

Attachment