Issue Date: December 27, 2005
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Effective Date: November 13, 2005
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Expiration Date: November 13, 2006
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Subject: Processing Claims for Mallinckrodt Chemical Works, Destrehan Street Facility SEC Class, 1949 - 1957
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 those workers 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. § 83.13. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On September 16, 2005, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add workers during the later years at the Mallinckrodt Chemical Works as a SEC class. The Director of NIOSH also submitted a proposed decision on this petition.
On October 14, 2005, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:
Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked in the Uranium Division of the Destrehan Street Facility of Mallinckrodt Chemical Works from 1949 to 1957 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 “… there is insufficient information either to 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.”
The evaluation concludes, “It should be noted that the Board believes, and NIOSH concurs, that the available external dose monitoring information is adequate for the reconstruction of individual external exposures; where appropriate, individual external doses can be reconstructed for specific types of cancer (e.g., skin).”
The designation became effective on November 13, 2005, as provided for under 42 U.S.C § 7384(14)(C)
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 October 14, 2005 report to Congress from the Secretary of HHS, entitled, “HHS Designation of Additional Members of the Special Exposure Cohort,” provided the supporting rationale for designating a class of employees from the Uranium Division of the Mallinckrodt Chemical Works, Destrehan Street Facility, St. Louis, Missouri, for the years 1949 through 1957.”
Purpose: To provide procedures for processing claims for the SEC class covering the later years at the Mallinckrodt Chemical Works, Destrehan Street Facility. The new SEC class applies to DOE employees, DOE contractor employees and subcontractor employees employed in the Uranium Division of the Destrehan Street Facility of Mallinckrodt Chemical Works during the period from 1949 through 1957 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. This new addition to the SEC affects the consideration of DOE employees and DOE contractor and subcontractor employees in the Uranium Division of the Mallinckrodt Chemical Works, Destrehan Street Facility, St. Louis, Missouri, for the years 1949 through 1957. It encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) is to produce pertinent reference lists identifying all Part B claims that were denied or at NIOSH for dose reconstruction and are not likely included in the new SEC class. These lists will be submitted to the appropriate district office(s) for processing in accordance with the instructions provided herein.
3. A formal request for data has also been submitted from the DEEOIC to NIOSH requesting two lists of case files where employment is claimed at the Mallinckrodt Chemical Works, Destrehan Street Facility, during the SEC class (Attachment 1). The request pertains to those employee case files pending a NIOSH dose reconstruction. One list will identify employee case files with at least one specified cancer claimed and the other list will address files with non-specified cancers.
4. NIOSH will return dose reconstruction analysis records for those cases with a specified cancer to the appropriate district office along with a CD for each case. The CD contains all of the NIOSH documentation 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 Attachment 2 for the Mallinckrodt Chemical Works, Destrehan Street Facility. The claims examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file. Employee case files returned from NIOSH to the district office for potential inclusion in the SEC class must be coded as “NW” in ECMS. The effective date for the code entry is November 13, 2005.
5. For any cases identified (either by NIOSH or DEEOIC) as having a potential for compensability based on the new SEC class, the responsible CE is to undertake appropriate action to ascertain whether the evidence of file meets the criteria delineated in the designation. The CE is to review all relevant documentation contained in the case file, including any documentation that NIOSH may have acquired or generated during the dose reconstruction process. If the evidence is unclear as to whether the employment or medical documentation satisfies the SEC class requirements, the claimant should be asked to provide clarifying evidence.
6. After appropriate development has occurred, the CE is to ascertain whether the employee 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 #9.
7. The CE must verify the employee worked for the DOE or a DOE contractor or subcontractor in 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 1949 through 1957 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 can 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 Uranium Division of the Destrehan Street Facility of Mallinckrodt Chemical Works for 1942 through 1948. If the employee does not meet the employment criteria, proceed to Action #9.
8. 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.
9. As discussed earlier, the Secretary of Health and Human Services determined that it is not feasible for NIOSH to perform dose reconstructions for employees who worked in the Uranium Division of the Destrehan Street Facility of Mallinckrodt Chemical Works from 1949 to 1957 with one exception. NIOSH has determined that the available external dose monitoring information is adequate for the reconstruction of individual external exposures, i.e., where appropriate, individual external doses can be reconstructed for specific types of cancer (e.g., skin).
For those cases NIOSH has identified as having a “non-specified” cancer and are already at NIOSH for dose reconstruction, NIOSH will retain the case for processing unless otherwise advised by the district office. As noted previously, the district office will receive a listing of all cases with non-specified cancer claims for Mallinckrodt Chemical Works. The District Office is to review the identified cases to ensure that there is no possibility of inclusion in the SEC class. Should the CE find a case that may qualify for the SEC class, an electronic notification should be made to the appropriate NIOSH point of contact to have the case returned to the district office. The “NW” code will be input for this type of case with an effective date of November 13, 2005.
10. For those cases that were identified by NIOSH as having a “specified cancer” and therefore returned to the district office, if it is determined that the case does not qualify for the SEC class, the CE notifies the appropriate point of contact at NIOSH via E-mail to proceed with the dose reconstruction. The E-mail should include a brief statement why the case should proceed with dose reconstruction, e.g., insufficient latency period, does not meet the 250 work day requirement, or not a specified cancer. The ECMS status code “NI” will be input effective the date of E-mail requesting NIOSH to proceed with dose reconstruction. A hard copy printout of the E-mail is to be inserted in the case file.
11. For any claim that is not already at NIOSH effective November 13, 2005 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process will apply.
12. Upon receipt of a dose reconstruction report on cases deemed by the district office to be excluded from the new SEC class, the CE proceeds in the usual manner and prepares a recommended decision. It should be noted that in any instance where a dose reconstruction is not possible based on the information available, NIOSH will so advise in their correspondence back to the district office. Upon receipt of either a dose reconstruction report or a notice that a dose reconstruction is not possible (on a confirmed non-SEC employee cases), the “NR” code is input into ECMS and the district office proceeds with the issuance of a recommended decision.
13. As noted previously, the district office is provided a listing of all denied claims that may now satisfy the criteria for inclusion in the SEC class. Upon review by the CE, 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. § 30.320.
14. FAB personnel must be vigilant for any Mallinckrodt Chemical Works cases that have a recommended decision to deny. If the employee worked at the Destrehan Street Facility of Mallinckrodt Chemical Works for the specified period, has a specified cancer, and meets the 250 work day requirement, the recommended decision must remanded to the district office in the usual manner.
15. A period of 60 calendar days, effective the issuance date of this directive, is granted for case files affected by this SEC that are returned from NIOSH for evaluation by the DEEOIC are to either receive a recommended decision for inclusion in the SEC or referral back to NIOSH for dose reconstruction.
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