EEOICPA BULLETIN NO.07-04
Issue Date: December 22, 2006
Effective Date: September 7, 2006___________________________________________________________
Expiration Date: December 22, 2007
Subject: Processing Claims for a new Special Exposure Cohort (SEC) Class for covered employees in work locations within certain buildings at the Y-12 Plant, January 1948 through December 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 Y-12 Plant(Y-12) in Oak Ridge, Tennessee to have this class 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 July 5, 2006, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked in certain buildings with exposures to certain nuclides at the Y-12 Plant, January 1948 through December 1957.
On August 8, 2006, 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 were monitored or should have been monitored for
1) thorium exposures while working in Building 9201-3, 9202, 9204-1, 9204-3, 9206, or 9212 at Y-12 for a number of work days aggregating at least 250 days during the period from January 1948 through December 1957 or in combination with work days within the parameters (excluding aggregate work date requirements) established for one or more other classes of employees in the SEC; or
2) radionuclide exposures associated with cyclotron operations in Building 9201-2 at Y-12 for a number of work days aggregating at least 250 work days during the period from January 1948 through December 1957 or in combination with work days within the parameters (excluding aggregate work date requirements) established for one or more other classes of employees in the SEC.
A copy of the Secretary’s letter to Congress recommending the designation is included as Attachment 1. The SEC designation for this class became effective as of
September 7, 2006, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the 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 this new SEC class.
NIOSH has determined it is possible to estimate the radiation exposure that resulted from medical doses; external gamma, beta, and neutron doses; internal doses for workers with potential exposure to uranium or recycled uranium contaminants (NIOSH has sufficient bioassay data to estimate doses); and internal doses for workers involved in plutonium operations when plutonium was enriched with the calutrons.
A previous SEC class pertaining to Y-12 was added on August 25, 2005, which was the subject of two prior bulletins, No. 06-04 and 06-11. The guidance provided here is to be used in addition to the two prior bulletins, as it pertains to an entirely new SEC class.
References: Energy Employees Occupational Illness Compensation Program 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 8, 2006 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Applicability: All staff.
1. This new addition to the SEC affects DOE employees and DOE contractor employees or subcontractor employees employed in certain locations at Y-12 from January 1948 through December 1957 for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days established for other classes of employees included in the SEC. This new SEC designation is established for workers who were “monitored or should have been monitored” for thorium exposures while working in Building 9201-3, 9202, 9204-1, 9204-3, 9206, or 9212 or were “monitored or should have been monitored” for radionuclide exposures associated with cyclotron operations in Building 9201-2 at Y-12. This additional class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
NIOSH has additionally stated that:
The Building 9206 Complex includes: 9768, 9720-17, 9409-17, 9510-2, 9767-2, and the east and west tank farm pits.
The Building 9212 Complex includes buildings 9809, 9812, 9818, 9815, and 9980.
To assist claims examiners with conceptualizing these buildings and their locations in the context of the entire Y-12 site, a map of Y-12 with building numbers has been included as Attachment 2. This map shows the buildings in the 9206 and 9212 complex are generally contiguous, with the exception of 9809 which is a small building in a remote Southwest portion of the Y-12 complex which was also known as the Critical Experiments Facility. This building was constructed in 1950, and access was restricted by means of a chain link fence. Additionally, the building numbers are quite specific, so if a dash is indicated, the use of a more generalized number (lacking the dash) is inappropriate.
2. NIOSH has provided two lists of employees who claimed employment at the Y-12 Plant during its SEC class period. One list covers employees with specified cancers and the other list addresses employees with non-specified cancers. NIOSH will return dose reconstruction analysis records for cases with specified cancers to the appropriate 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 affected Y-12 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. 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 September 7, 2006.
Since the NIOSH lists contain only cases that were with NIOSH for dose reconstruction at the time this SEC designation became effective, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has also produced a list identifying all Y-12 cases that are potentially included in the SEC class including cases that were previously denied. The list identifies 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 than 50%. The NIOSH and DEEOIC lists will be compared to ensure all potential SEC cases are identified by the district offices. The lists will be provided to the appropriate district offices under separate cover.
3. 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: review all relevant documentation contained in the case file, including any documentation that NIOSH may have acquired or generated during the dose reconstruction process. Action #5 provides additional guidance on making the determination of whether the employee worked in one of the buildings that is part of this SEC. 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.
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 Action #5. If the employee does not have a specified cancer, proceed to Action #7.
5. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 work days in an appropriately numbered building at the Y-12 Plant from January 1948 through December 1957. In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at Y-12 or in combination with work days for other SEC classes.
To assist the CE in making these determinations, Attachment 4, “Y-12 Plant and Process Descriptions excerpt from the NIOSH Evaluation Report Summary: SEC-00028, Y-12 Plant” is provided. This portion of the report, which is available in its entirety on the NIOSH website at http://www.cdc.gov/niosh/ocas/y12.html#sec provides detailed information as to what activities went on in each of the buildings that is part of the SEC. (The report also provides some information on processes in buildings not part of the SEC which is included in the Attachment for completeness sake)
As Section 5.2.5 of the attachment makes clear, some employees for this new SEC class at Y-12 will actually have confirmed employment with the Oak Ridge National Laboratory (ORNL), but have a work location which was within the SEC buildings on the Y-12 campus. This means that if the employee is from ORNL and worked at a Y-12 SEC building, they are covered under the SEC. However, it is not enough that an employee be an ORNL employee at Y-12, since the buildings designated as part of this SEC do not include all ORNL work locations at Y-12.
In terms of the evidence needed to place people in buildings, there are three categories.
A) Those claimants for which there is strong evidence that shows the employee worked in one of the numbered buildings and/or worked on a process that is clearly indicated in Attachment 4 as having taken place in one of those buildings. Work locations at Y-12 can often be found on copies of the old medical dispensary records, in personnel records and some other Y-12 originated records. If the evidence clearly places the employee in one of the buildings in the designation, proceed to step #6.
B) Those claimants that worked in jobs which required them to move around the site because their job was such that they supported activities site-wide (ie, an operational support role). The types of jobs in this category would include pipefitters, plumbers, steamfitters, carpenters and sheetmetal workers, to name a few. For these workers, the CE is to assume that the worker entered the buildings that are part of the SEC, but must consider evidence that would place these employees elsewhere on the site. If there is affirmative evidence that an employee in this category was not in one of the SEC buildings for some of their confirmed employment period, the CE is to make sure the days in non-SEC buildings does not count towards the 250 days. The CE then must balance the evidence and make a determination on whether the employee meets the 250 day requirement or not. If the CE determines that the evidence is sufficient to place the employee in the SEC, then proceed to step #6.
Additionally, if there is specific evidence that the employee worked in an operational support position, but did not have employment activities that brought him into one of the recognized building locations affiliated with this SEC, the benefit of the doubt cannot be extended to the employee. Under circumstances where specific and contradictory information exists to exclude an “operational support” employee from the SEC class, the CE must undertake additional development of the claim.
C) Those claimants for which their job category and/or building location clearly places them outside one of the buildings that is part of the SEC. Examples of these types of job descriptions includes cafeteria workers, auto mechanics and employees of the Oak Ridge National Laboratory’s Biology Division which was located at Y-12 Building 9207, also known as the “Mouse House.” These employees would not be covered as part of the SEC, unless there is probative evidence to suggest alternate, covered work locations. In terms of suggesting to claimants what type of additional evidence could be persuasive, they can be encouraged to submit affidavits from co-workers regarding work location.
6. Once the CE has determined 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.
7. As discussed earlier, the Secretary of Health and Human Services determined that it is not feasible for NIOSH to perform complete dose reconstructions for the class of employees who worked in these buildings at Y-12 from January 1948 through December 1957. However, NIOSH has indicated that partial dose reconstructions may be possible based on medical doses; external gamma, beta, and neutron doses; internal doses for workers with potential exposure to uranium or recycled uranium contaminants (NIOSH has sufficient bioassay data to estimate doses); and internal doses for workers involved in plutonium operations when plutonium was enriched with the calutrons. 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. 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” and select the appropriate reason code. The CE should not delete the “NW” or “NI” code already present in ECMS.
8. 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 then prints 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, effective the date of the E-mail requesting NIOSH to proceed with dose reconstruction. The E-mail should include a brief statement of why the case should proceed with dose reconstruction, e.g., non-qualifying employment at the Y-12 Plant, insufficient latency period, does not meet the 250 work day requirement, or not a specified cancer. A hard copy printout of the E-mail is to be inserted in the case file.
9. For any claim that is not already at NIOSH effective September 7, 2006 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process will apply.
10. 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.
11. 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(a).
12. FAB personnel must be vigilant for any Y-12 cases that have a recommended decision to deny. If the employee worked in one of the specified buildings during the time specified, has a specified cancer, and meets the 250 work day requirement, the recommended decision must be remanded to the district office in the usual manner.
13. A period of 60 calendar days, effective with 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
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual