EEOICPA BULLETIN NO.06-06                      

 

Issue Date: April 4, 2006

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Effective Date: January 7, 2006

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Expiration Date: January 7, 2006

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Subject:  Processing Claims for the Linde Ceramics Plant SEC Class, October 1, 1942 through October 31, 1947

 

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 to add a class of certain workers of the Linde Ceramics Plant in Niagara Falls, New York, to the Special Exposure Cohort (SEC).  Linde Ceramics Plant is currently recognized as having been an Atomic Weapons Employer (AWE) from 1940 to 1953 with related residual radiation until 1995, and a Department of Energy facility from 1988 to 1992, as well as for purposes of remediation in 1996. The plant is also known as Tonawanda Laboratory; Linde Air; and Praxair.  

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 November 8, 2005, the Board submitted recommendations in a report to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked at the Linde Ceramics Plant during the time period October 1, 1942 to October 31, 1947. 

 

On December 8, 2005, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:

 

Atomic weapons employees who worked at the Linde Ceramics Plant from October 1, 1942 through October 31, 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.

 

A copy of the Secretary’s letter to Congress recommending this designation is included as Attachment 1. This designation became effective on January 7, 2006, in the absence of Congressional action as provided for under 42 U.S.C. 7384l(14)(C).

 

A report attached to the Secretary of HHS’s letter, entitled “HHS Designation of Additional Members of the Special Exposure Cohort,” provided the supporting rationale for designating a class of employees of the Linde Ceramics Plant in Niagara Falls, New York, from October 1, 1942 through October 31, 1947.

 

Section IV, “Designation Findings,” summarized NIOSH’s finding that “… there is insufficient information 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.”  The designation found that “Radiation survey and film badge data provide means for reconstructing external doses and it is possible to estimate the exposure that resulted from occupational medical x-rays.”  It went on to find, however, that “Data from October 1942 to October 1947 is insufficient to support reconstruction of internal exposures and resulting doses.  Urinalysis for internal dosimetry was implemented in November 1947.  The air monitoring program, including task analysis with air concentrations measured in breathing zone, general area, and process area, began in 1947.”

 

Thus, the Secretary of Health and Human Services determined that it is not feasible to undertake dose reconstructions for individuals employed at the Linde Ceramics Plant from October 1, 1942 through October 31, 1947. 

 

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 December 8, 2005 report to Congress from the Secretary of HHS, entitled, “HHS Designation of Additional Members of the Special Exposure Cohort.”

 

Purpose: To provide procedures for processing claims for the SEC class atomic weapons employees who worked at the Linde Ceramics Plant from October 1, 1942 through October 31, 1947.

 

Applicability: All staff. 

 

Actions:

 

1. This new addition to the SEC affects the consideration of all atomic weapons employees who worked at any location within the site boundaries of the Linde Ceramics Plant, Tonawanda, NY, during the period October 1, 1942 through October 31, 1947. In a letter to DOL, dated February 23, 2006, NIOSH clarified its interpretation of the SEC class to comprise all atomic weapons employees who worked at any location within the Linde Ceramics site boundaries during the designated time period.  A copy of this letter is included as Attachment 2. For the purposes of processing claims, the term “Linde Ceramics Plant” is not limited to employees who worked in certain buildings at the site, but is inclusive of employment at any combination of employment at building 14 (Tonawanda Laboratory), 30, 31, 37, 38, 39, A and B. It is also noted that the Board’s recommendation report to the HHS secretary, and the Secretary’s letter to Congress cite the Linde Ceramics Plant facility location as “Niagara Falls, NY.” However, this location is synonymous with “Tonawanda, NY.” 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 Linde Ceramics Plant claims that are potentially included in the SEC class. The lists will identify those cases that must be reviewed by the district office(s) to determine whether SEC class criteria are satisfied including pending cases with employment during the SEC period with either a specified, non-specified cancer, or previous denial for POC less that 50%. 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 Linde Ceramics Plant during the SEC period. 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 affected Linde Ceramics Plant claimants 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. 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 January 7, 2006.

 

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 that the employee was an atomic weapons employee who worked at the Linde Ceramics Plant.  If the employee meets this criterion, the CE then determines whether the worker was employed at the Linde Ceramics Plant for at least 250 work days the October 1, 1942 through October 31, 1947.  In determining whether the employment history meets the 250 work day requirement, the CE can consider employment either solely at the Linde Ceramics Plant or in combination with work days for other SEC classes.

 

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 atomic weapons employees who worked at the Linde Ceramics Plant from October 1, 1942 through October 31, 1947. However, NIOSH has indicated that external dose reconstructions for non-specified cancers may be possible. For those Linde Ceramics Plant 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 Linde Ceramics Plant.  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 January 7, 2006.

 

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, through the Senior CE (SrCe), notifies the appropriate point of contact at NIOSH via E-mail to proceed with the dose reconstruction. The SrCE would then print a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) and inputs the NI code to ECMS. The E-mail should include a brief statement of why the case should proceed with dose reconstruction, e.g., non-qualifying employment at the Linde Ceramics Plant, 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 January 7, 2006 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 case), 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 Linde Ceramics Plant cases that have a recommended decision to deny.  If the employee worked at the Linde Ceramics Plant 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 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 

 

Attachment 1

Attachment 2

Attachment 3