EEOICPA BULLETIN NO.06-04
Issue
Date:
________________________________________________________________
Effective
Date:
________________________________________________________________
Expiration
Date:
________________________________________________________________
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
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
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
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,
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
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