EEOICPA BULLETIN NO. 06-07
Issue Date: May 18, 2006
Effective Date: May 18, 2006
Expiration Date: May 18, 2007
Subject: Potential Eligibility of Radiation Exposure Compensation Act section 4 (RECA-4) awardees under Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA, or the Act).
Background: The statutory language in 42 U.S.C. § 7385j acts as a bar to any EEOICPA claim for cancer filed by employees who had received compensation under RECA section 4. It states:
Except in accordance with section 7384u of this title, an individual may not receive compensation or benefits under the compensation program for cancer and also receive compensation under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or section 1112(c) of Title 38.
Section 7384u refers to the $50,000 lump sum benefits available under the EEOICPA to RECA section 5 awardees, and was the only exception for benefits payable concurrently for cancer under both statutes. Section 4 is a separate provision within the RECA which provides benefits for individuals with cancer who were either proximate to atomic tests at the Nevada Test Site (downwinder) or participated at the site of an atmospheric atomic weapon test (onsite participant). Given that coverage under section 4 is limited to individuals diagnosed with cancer, U.S.C. § 7385j prevented those awardees from receiving compensation under Part B of the EEOICPA, except for chronic silicosis and beryllium disease. With the passage of Part E, the scope of potential illnesses covered under the EEOICPA has expanded. An individual with a covered RECA section 4 cancer may have a non-cancer condition under Part E of the EEOICPA, in addition to chronic silicosis and beryllium disease.
This bulletin provides procedural guidance for handling EEOICPA claims where a RECA section 4 award has been granted or is pending.
Reference: Energy Employees Occupational Illness Compensation Program Act of 2000, As Amended, 42 U.S.C. § 7384 et seq; Radiation Exposure Compensation Act (RECA), 42 U.S.C. § 2210 note; Federal (EEOICPA) Procedure Manual, Chapter 2-900.
Purpose: To provide procedures for handling claims under Part E of the EEOICPA for individuals who have either received an award, or have a pending claim under RECA section 4.
1. Upon receipt of an EEOICPA claim for benefits, the Claims Examiner (CE) must determine if there is evidence that the employee has filed a claim with the Department of Justice (DOJ), under RECA-4. This can usually be accomplished by reviewing the information provided by the claimant(s) in the, “Awards and Other Information” section of the EE-1 or EE-2 claim form. There may also be relevant information in the case record indicative of a RECA-4 claim, such as an award letter or other RECA-related documentation.
2. If the evidence suggests that a RECA-4 claim has been filed, the CE must determine the status of the claim by contacting DOJ, the federal agency that administers benefits under RECA. Attached to this bulletin is a letter that may be utilized by the CE when seeking information from DOJ on the status of a RECA claim (Attachment 1).
3. Upon receipt of the DOJ’s response, the CE must then proceed with development of the claim for compensation. If there is confirmation of an award under RECA-4, then development should proceed with respect to any claimed medical condition(s), other than cancer, to determine if there is evidence of a compensable Part E covered illness. The CE should follow the standard procedures for development of covered employment in a Part E claim in accordance with the EEOICPA Procedure Manual (PM) Chapters 2-400, E-400, and E-500,as well as any other medical or factual development needed.
4. Should cancer be the only claimed illness, and an award under RECA-4 is confirmed, the CE may proceed with a recommended denial of compensation under Part E. The denial of compensation should specifically reference the exclusion to benefits for cancer under both EEOICPA and RECA contained in 42 U.S.C. § 7385j.
5. If the response from DOJ indicates that a RECA-4 decision is pending determination, the CE must prepare a letter to the claimant(s), explaining that an EEOICPA and a RECA-4 cancer claim cannot be adjudicated concurrently. The claimant(s) must be asked to select which program they wish to pursue benefits under, for the claimed cancer(s). The claimant(s) should be notified that if they either fail to respond within 30 days, or if they elect to pursue their claim under RECA, their EEOICPA cancer claim will be denied. Development of any non-cancer condition will be pursued in accordance with the EEOICPA. The claimant(s) should also be advised that if they wish to pursue their cancer claim under EEOICPA, they must formally withdraw their claim from RECA, and confirmation of such withdrawal must be obtained from DOJ. The letter should further state that if their RECA claim ultimately ends in a denial, then they may seek to have their EEOICPA cancer claim reopened.
6. Depending upon the response from the claimant(s), the CE will either proceed with the adjudication of the claimed cancer (upon confirmation of RECA-4 withdrawal) or will proceed with development of the case for non-cancer conditions, and will issue a recommended decision that includes a denial for the claimed cancer. Any recommended decision that includes a denial of a claimed cancer, on the grounds that compensation cannot be awarded under both RECA-4 and EEOICPA, must reference 42 U.S.C. § 7385j.
7. If DOJ reports that a RECA-4 award has been granted, but the claimant has elected to reject the settlement, and if a copy of the Acceptance of Payment form confirms this, the CE can proceed with the adjudication of the cancer claim under the EEOICPA.
Applicability: All personnel.
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, Resource Center Managers, Operation Chiefs, Hearing Representatives, and District Office Mail & File Sections.