EEOICPA BULLETIN NO.07-11                      

 

Issue Date: February 28, 2007

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Effective Date: December 9, 2006

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Expiration Date: February 28, 2008

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Subject:  Processing Claims for a new Special Exposure Cohort (SEC) Class for covered employees with exposure to radioactive lanthanum (RaLa) at work locations within Los Alamos National Laboratory (LANL), September 1, 1944 through July 18, 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 a class of employees from the Los Alamos National Laboratory in Los Alamos, NM to have a class added to the Special Exposure Cohort (SEC).

 

The decision to initiate this petition occurred after the National Institute for Occupational Safety and Health (NIOSH) determined that it could not reconstruct a dose  under 42 C.F.R. § 83.14.  NIOSH submitted its findings to the petitioner 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 in certain locations with exposures to ionizing radiation associated with radioactive lanthanum (RaLa) at the LANL during the period from September 1, 1944 through July 18, 1963.

 

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


Employees of the Department of Energy predecessor agencies and their contractors or subcontractors who were monitored or should have been monitored for exposure to ionizing radiation associated with radioactive lanthanum (RaLa) operations at Technical Area 10 (Bayo Canyon Site), Technical Area 35 (Ten Site), and Buildings H, Sigma, and U (located within Technical Area 1) at the Los Alamos National Laboratory (LANL) for a number of work days aggregating at least 250 work days during the period from September 1, 1944 through July 18, 1963, or in combination with work days within the parameters 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 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.  

 

NIOSH has determined it is possible to reconstruct or bound both external doses and occupational medical doses. As such, for cases with a non-specified cancer and/or do not meet the employment criteria of the SEC class, NIOSH will perform a dose reconstructions based on external doses and occupational medical doses.

 

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 November 9, 2006 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.

 

Purpose: To provide procedures for processing claims for the LANL SEC class.

 

Applicability: All staff.

 

Actions:

 

1. This new addition to the SEC affects employees of the Department of Energy (DOE) predecessor agencies and their contractors or subcontractors in certain locations at the LANL from September 1, 1944 through July 18, 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 employees who were “monitored or should have been monitored” for exposure to ionizing radiation associated with radioactive lanthanum (RaLa) operations at Technical Area 10 (Bayo Canyon Site), Technical Area 35 (Ten Site), and Buildings H, Sigma, and U (located within Technical Area 1). This additional class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.

 

2. NIOSH has provided two lists of employees who claimed employment at the LANL 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 LANL claimants is included as Attachment 2.  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 December 9, 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 LANL cases that may potentially be 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 DEEOIC will 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 by the Policy Branch.

 

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 TAs or buildings that are part of this SEC class.

 

4. Based on this review, the CE then determines whether the claimant has a specified cancer, as listed in the Federal (EEOICPA) 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 at a location delineated in the SEC class designation.  In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at LANL or in combination with work days for other SEC classes.

 

After careful research and analysis of the SEC class designation, the DEEOIC has determined two methods by which a CE can accept that an employee was exposed to RaLa at LANL:  Work Site Location or Work Group Designation. The evidence of record must be evaluated by the CE to determine if there is sufficient evidence to either place the employee at one of the accepted work locations or evidence that the employee belonged to one of the designated work groups for a period of 250 or more work days. 

 

Work Site Locations

 

LANL is organized into land divisions called technical areas (TAs). The current convention for describing locations at LANL is TA-10-1, where 10 is the technical area and 1 is the building number. In total, there have been no less than 75 TAs in the LANL with several TAs currently no longer active, including TA-1 and TA-10.

 

The CE must be aware that a TA may encompass more than one building or other designated area (such as waste storage yards or testing areas). If a TA area is identified as a location where RaLa was present, all buildings and other geographic designations within the perimeter of the TA is considered covered.  If a building designation is listed, coverage extends to any location within the boundary of that building.

 

RaLa, a gamma ray emission source, was used in tests to develop an implosion-type bomb design. The SEC designation demonstrates the following locations were directly associated with RaLa operations:

 

·        Technical Area 10 (Bayo Canyon Site)

A total of 254 implosion tests involving RaLa were conducted at Bayo Canyon Site (TA-10) from 1944 through 1962. Bayo Canyon Site encompasses several buildings including the radiochemistry building where RaL§a sources were prepared, and four outdoor firing sites.

·        Technical Area 35 (Commonly known as the “Ten Site”)

·        Buildings H, Sigma, and U (Located within TA-1)

 

It is essential the claims examiner reviews the case file in its entirety, including information obtained from NIOSH during the dose reconstruction process to determine if evidence indicates the employee worked at one of the locations involved with RaLa operations during the period from September 1, 1944 through July 18, 1963 to establish covered employment for this SEC class.  The evidence merely needs to be of sufficient probative value to convince the adjudicator of the accuracy of the claim that the employee worked at one of the accepted locations listed for the SEC membership.  The evidence does not need to rise to the level of beyond all reasonable doubt to quality for consideration. 

 

Work Group Designation

 

If the claims examiner is unable to identify the TAs or the buildings where the employee worked, the CE may review the record of employment and/or medical records for the employee’s work group information.

 

Several work groups have been identified to have known RaLa exposure. Evidence of employment for one of the following work groups is sufficient for consideration as part of this SEC class:

 

·        CM-4

·        CM-14

·        CMR-10

·        G-6

·        G-7

·        GMX-5

 

The employee’s work group information is typically found in the record of employment and/or medical records obtained from LANL. Evidence confirming that the employee was part of work groups CM-4, CM-14, CMR-10, G-6, G-7 and GMX-5 during the period of September 1, 1944 through July 18, 1963 is sufficient to accept for RaLa exposure for the SEC class. 

 

6.  In cases where the CE is unable to make an affirmative determination of covered SEC employment either through evidence of employment in the TAs or the buildings, or evidence that the employee is part of the known work groups associated with RaLa operations, a decision must be pended awaiting further policy guidance. The Department of Health and Human Services is in the process of evaluating a new petition to designate a new class of employees at the LANL for additional TAs and time periods. If approved, this new SEC class may encompass the TAs and the time period designated for this current SEC class in addition to other areas at LANL.  

 

7. 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. 

 

8. 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 certain areas at LANL from September 1, 1944 through July 18, 1963.  However, NIOSH has indicated that partial dose reconstructions may be possible based on external doses and occupational medical 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” and select the appropriate reason code. In this case, the “XM” reason code would apply. The CE should not delete the “NW” or “NI” code already present in ECMS. 

 

9. 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 LANL, 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.

 

10. For any claim that was not already at NIOSH on December 9, 2006 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process will apply.

 

11. 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. 

 

12. If a case with a denied final decision now meets the SEC class criteria and the employee has/had a specified cancer, 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).

 

13. FAB personnel must be vigilant for any LANL cases that have a recommended decision to deny.  If the employee worked in one of the specified areas 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.

 

14. On all accepted SEC claims, the CE must enter the “SE” code in ECMS. The status effective date is the date both employment and medical criteria is met.

 

15. 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 receive a recommended decision for inclusion in the SEC, referral back to NIOSH for dose reconstruction or pended awaiting further policy guidance.

 

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