EEOICPA BULLETIN NO.07-09                      

 

Issue Date: February 9, 2007

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Effective Date: December 9, 2006 ________________________________________________________________

 

Expiration Date: February 9, 2008

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Subject:  Processing Claims for Oak Ridge Institute of Nuclear Studies (ORINS) Cancer Research Hospital, Oak Ridge, Tennessee Special Exposure Cohort (SEC) Class, May 15, 1950 through December 31, 1963.

 

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 class of workers from ORINS to have this facility added to the 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 October 11, 2006, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked at the ORINS Cancer Research Hospital from May 15, 1950 through December 31, 1963.    

 

On November 9, 2006, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.

 

Oak Ridge Institute of Nuclear Studies Cancer Research Hospital in Oak Ridge, Tennessee from May 15, 1950 through December 31, 1963:

 

Employees of the Department of Energy predecessor agencies and their contractors or subcontractors who were monitored or should have been monitored while working at the Oak Ridge Institute of Nuclear Studies Cancer Research Hospital from May 15, 1950, through December 31, 1963, and who were employed for a number of work days aggregating at least 250 work days, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.   

 

In its 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.”  NIOSH has determined that it is unable to estimate internal occupational dose.

 

In the November 9, 2006 report, the Secretary of HHS determined that it is not feasible to undertake dose reconstruction for the class of employees employed at the Oak Ridge Institute of Nuclear Studies Cancer Research Hospital from May 15, 1950, through December 31, 1963.

 

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 December 9, 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.

 

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 November 9, 2006 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 ORINS Cancer Research Hospital, Oak Ridge, Tennessee.”

 

Purpose: To provide procedures for processing claims for the ORINS Cancer Research Hospital from May 15, 1950, through December 31, 1963. 

 

Applicability: All staff.

 


Actions:

 

1. This new addition to the SEC affects DOE predecessor agency employees and their contractor or subcontractor employees employed at the ORINS Cancer Research Hospital from May 15, 1950, through December 31, 1963 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” while employed at ORINS Cancer Research Hospital. Using the current standards for monitoring of workers at a nuclear facility site, DOL is interpreting “monitored or should have been monitored” as including all employees who worked at ORINS Cancer Research Hospital during the period from May 15, 1950, through December 31, 1963.

 

Additionally, the ORINS Cancer Research Hospital (which closed many years ago) is only one portion of the covered DOE facility today known as the Oak Ridge Institute for Science and Education (ORISE).  ORINS was an educational non-profit organization which contracted with the Atomic Energy Commission to “promote the theoretical education and practical training of the scientific personnel essential to the continued conduct of research and development activities in the fields of nuclear and related sciences…” The operation of the Cancer Research Hospital was but one facet of this broader mission. In 1966, ORINS became Oak Ridge Associated Universities (ORAU). In 1992, the Oak Ridge Institute for Science Education (ORISE) was formed as an official Department of Energy Institute to be managed by ORAU.  It is ORISE which is the present day successor in interest to ORINS.

 

This additional class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted. 

 

2. NIOSH has provided a list of employees who claimed employment at ORINS during its SEC class period.  NIOSH will return analysis records for all ORINS cases that are within its SEC class period 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 ORINS claimants is included as Attachment 2.  There is, however; a mistake in the letter.  The letter states, “Our records indicate that you, or the energy employee on the claim, worked at the Oak Ridge Institute of Nuclear Studies Cancer Research Hospital during the period…” What it should have said was, “Our records indicate that you, or the energy employee on the claim, worked for ORINS during the period…”  It is up to the claims examiner (CE) to make the determination of which ORINS employees worked at the ORINS Cancer Research Hospital.  The 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 December 9, 2006.

 

Since the NIOSH lists contain only cases that were with NIOSH for dose reconstruction at the time this SEC class designation became effective, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has also produced a list identifying all ORINS 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 CE must compare the NIOSH and DEEOIC lists 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 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.  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 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 at the ORINS Cancer Research Hospital from May 15, 1950, through December 31, 1963. In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at the ORINS Cancer Research Hospital or in combination with work days for other SEC classes. Not all ORINS employees worked at the Cancer Research Hospital, so a determination will have to be made as to work location.  

 

If the employee does not meet any of the employment criteria, proceed to Action #7. 

 

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 class, 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 dose reconstructions for the class of employees who worked at ORINS Cancer Research Hospital from May 15, 1950, through December 31, 1963.  However, NIOSH has indicated that dose reconstructions for non-specified cancers may be possible for external doses and for medical X-ray doses.  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,” but should not delete the “NW” or “NI” code already present in ECMS. The “NR” reason code should be input as “XM” for “External and medical dose used, SEC.”  

 

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. § 30.320(a).

 

10.  FAB personnel must be vigilant for any ORINS cases that have a recommended decision to deny.  If the employee worked at ORINS Cancer Research Hospital for the specified period, 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.

 

11.   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

 

Attachment 1

Attachment 2

 

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