Attention: This bulletin has been superseded and is inactive.

EEOICPA BULLETIN NO.07-13

Issue Date: April 10, 2007

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Effective Date: December 1, 2006

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Expiration Date: April 10, 2008

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Note: This Bulletin supplements Bulletin No.05-02, “Processing Residual Contamination Site Claims.”

Subject: Implementing the National Institute for Occupational Safety and Health’s (NIOSH) December 2006 Report.

Background: An amendment to the National Defense Authorization Act (NDAA)(Pub. L. 108-375) for Fiscal Year 2005, signed into law on October 28, 2004, mandated that NIOSH update their report regarding residual contamination at facilities covered by the Energy Employees Occupational Illness Compensation Program Act(EEOICPA). A prior update to that report (“Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities”) was issued in June 2004 and was the basis for EEOICPA Bulletin No. 05-02. In December 2006, NIOSH issued the mandated update to the report. This Bulletin gives guidance on implementing their revised findings.

There are significant differences between NIOSH’s June 2004 and December 2006 reports. These differences include:

• Altered covered dates for 107 Atomic Weapons Employer facilities (AWE facilities)

• The creation of “gaps” in periods of qualifying employment for atomic weapons employees due to suspending residual contamination periods during DOE remediation.

• Establishment of qualifying employment for employees of as-yet unidentified additional employers, as explained in this paragraph. The October 2004 amendment to the Act added 42 U.S.C. § 7384l(3)(B) which expanded the definition of an “atomic weapons employee” to include a person employed at a facility where NIOSH finds that there is a potential for significant residual contamination outside of the period in which weapons-related production occurred, if the person was employed ”by an atomic weapons employer or subsequent owner or operators of a facility described” in the NIOSH report (emphasis added), and “during a period, as specified in such report or any update to such report, of potential for significant residual radioactive contamination at such facility.” The Division of Energy Employees Occupational Illness Compensation (DEEOIC) currently does not know the identities of these subsequent owners or operators of the various AWE facilities for which the employees thereof may now be considered for the benefits available through EEOICPA.

• Characterization of the level of exposure in relation to the potential for compensation. The December 2006 report states, “All facilities for which significant residual contamination was determined to be present after the period of weapons related production are considered to have the potential of causing an employee who was employed at such facility only during the residual contamination period to contract a cancer or beryllium illness compensable under subtitle B of the (EEOICPA) of 2006.” This marks a contrast to their June 2004 report in which NIOSH said that due to the nature and levels of radioactivity at most sites, employment during just the residual contamination period will probably not provide sufficient dose to result in a probability of causation of at least 50% based upon NIOSH cancer risk computer models. In the December 2006 report NIOSH reiterated the change by stating “If NIOSH determined there was ‘the potential for significant contamination’ at a designated facility, then NIOSH determined that such contamination ‘could have caused or substantially contributed to the cancer of a covered employee with cancer.’”

References: 42 U.S.C. § 7384l(3)(B); 20 C.F.R. § 30.5(c)(2); EEOICPA Bulletin No. 05-02; FY 2005 Defense Authorization Act, Public Law 108-375; and the NIOSH June 2004 and December 2006 reports each entitled, “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities.”

Purpose: To provide procedures for processing claims based on AWE employment at sites identified by NIOSH as having a period of potential residual contamination.

Applicability: All staff.

Actions:

1. Many claims that were previously denied due to AWE covered time periods may need to be reopened and forwarded to NIOSH for the preparation of a dose reconstruction. This includes claims that were denied on the basis of having no covered employment as well as claims denied for a less than 50% probability of causation using a dose reconstruction which did not fully consider dose from residual contamination.

The changes brought about by this report affect previously completed claims as well as current and future claims. The effect on previously adjudicated claims may be subtle, as the claim may not have been denied strictly for “no covered employment.” For example, DEEOIC may have advised a claimant that the claimed employment was not qualifying and concurrently asked for medical evidence of the claimed cancer. In the absence of a reply, the claim may have been denied due to the lack of evidence of cancer, or the claimant may have opted to withdraw the claim. Clearly, however, the claimant may have chosen not to pursue the claim because of being told of the then-shortcomings of the reported employment. As such, previously denied claims must be reviewed and adjudicatory judgment used in determining the current appropriate action.

Claims Examiners must review all claims which referenced the claimed employment as not being covered (but for which atomic weapons employee status may now be established), as this may have dissuaded claimants from perfecting other eligibility factors in their claims.

2. Attachment 1 provides a complete comparison of the current NIOSH report (right-most column) and the previous report (the column next to it). This attachment therefore provides a quick reference to what has changed in terms of covered employment years at all AWE facilities and should serve as a guide for making determinations on whether an employee now has increased years of covered employment. An entry of “N/A” shows that NIOSH determined there was little potential for significant residual contamination. For those sites shown as having potential residual contamination to the “present,” NIOSH defined that date as July 2006. In reviewing a given claim the CE must utilize the list and identify the site where the employee worked, note the NIOSH-designated residual contamination period and compare if and how it has changed since the previous report, and proceed as appropriate.

Note also that the DOE website has not yet been updated and therefore the CEs are not to rely on that website for determinations of covered years at AWE facilities. Although it is anticipated that the website will be updated as part of implementation of the NIOSH report, CEs are reminded that even once it is updated, information on the DOE website provides generalized facility data and is not considered conclusive.

3. The DEEOIC has identified all affected claims; all non-granted closed claims with employment at an AWE site with residual contamination and whose period of employment is not entirely prior to the end of AWE activity (weapons-related) years. This list will be identified for purposes of this Bulletin as the “2006 NIOSH-designated Residual Contamination Master Claim List” (Master List). All claims on this list must be reviewed for potential reopening. To avoid duplicate reviews of cases as part of this effort we will utilize a tracking sheet and a “folder flash sheet” (Attachment 2), discussed later in this Bulletin.

4. For purposes of implementing this Bulletin, the Director of DEEOIC has delegated limited authority for the reopening of claims to each of the four District Directors. This authority is strictly limited to claims in which the basis for reopening is the establishment of covered employment based on residual radioactive contamination at an AWE site. Any claims deemed questionable or unusual by the District Director that appears to be in posture for a reopening may still be referred to the Director of DEEOIC. The Director’s Orders for Reopening by the District Directors should utilize language from the current report by NIOSH, as appropriate. (Attachment 3)

Such reopenings are to be limited to claims for cancer and not based on denials for reasons other than “no covered employment” and/or “<50% probability of causation.” For example, if a Part B claim was denied because some claimed conditions are not covered and because a claimed cancer had a <50% POC, the reopening should be limited to the claim for cancer.

Claims previously denied on the basis of <50% POC first need to have the prior dose reconstruction summary critiqued to determine if the facility’s residual contamination had already been taken into consideration in the prior dose reconstruction for the claim. If it clearly was already factored-in (in its entirety), no reopening is in order. If it clearly was not factored-in, the claim should be reopened. If a particular dose reconstruction is unclear, forward the dose reconstruction to a National Office Health Physicist for review to determine if the NIOSH-designated residual contamination period was fully taken into consideration by NIOSH in the dose reconstruction.

An example of the type of case in which the “newly designated” residual period should have already been factored in are those claims at AWE facilities for which the previous NIOSH report shows a “+” or an “indistinguishable.” If the NIOSH report clearly shows that NIOSH calculated radiation dose for both internal up until the date of diagnosis and external dose through the end of contaminated employment, which may fall in the “newly designated” residual period, those cases will not need to be reopened.

5. Because the list of claims needing to be reviewed as part of this effort is extensive, a triage approach is suggested as a means of systematically addressing cases on the Master List. The categories and their generalized order of priority are as follows:

A) In 2005 the DEEOIC contacted 228 claimants identified as having denied claims impacted by NIOSH’s June 2004 report on AWE sites with residual contamination. With but a few exceptions, these should all be reopened. The exceptions to automatic reopening of the 228 from this list are as follows:

i. Those claims based solely on employment at AWE facilities that have been delisted, per Bulletin No. 07-03.

ii. Those claims for which payment has been approved.

iii. Those claims based solely on employment at AWE facilities for which the time period either decreased or was revised to “N/A” in the updated report.

iv. Those claims previously reopened which are still pending or underwent dose reconstruction and the DR was recent enough that it gave full credit for dose from residual contamination.

v. The claimant is deceased, though other known and eligible survivors may be solicited.

With regard to claims in this category, the Director of DEEOIC will be sending a letter to the claimants providing information about the reason for the reopening. The letter will inform the claimants that they will be contacted regarding their reopenings by the District Office.

B) Additionally, it is expected that once claimants learn of NIOSH’s recent report they will contact the district offices. These claimants are to receive a priority review of their case and a determination of whether the claim warrants reopening. If a claimant requests reopening, existing procedures of PM 2-1400 apply except as modified by Action Item #4 of this Bulletin.

C) In 2005, the DEEOIC also identified another group of claimants who potentially had employment within the timeframes outlined in NIOSH’s June 2004 report’s findings but whose claims were denied by FAB on a basis other than “no covered employment.” Because these denials were for reasons not related to their covered years of employment, these claimants were not previously sent a letter in which they were invited to request a reopening of their case. Although DEEOIC did not issue letters to these claimants, their claims must be reviewed in their entirety. As with other claims affected by this Bulletin, determine if the NIOSH-designated residual contamination period adds covered employment to the claim. If it does, determine if the material in the file, in conjunction with the newly added residual period now justifies reopening the claim. If so, the District Director must presently reopen the claim.

If the claim does not currently warrant reopening, determine whether DEEOIC may have notified the claimant of the inadequacies of claimed employment. This may have resulted in the claimant abandoning further attempts to establish his or her claim. If the CE determines that the claimant was notified of the lack of covered employment, it will be necessary to issue a letter advising the claimant that the reported employment may now be qualifying and invite a request for the reopening of the claim by submitting new/additional evidence that satisfies the prior reason(s) for the claim’s denial. (Attachment 4) In some cases, such as those in which the employee has died and there are no survivors, the appropriate action may be to do nothing.

D) The list created by DEEOIC of potentially affected claims also includes a group of claimants whose claims were received and/or denied after the implementation of Bulletin No. 05-02, and for which there thus may now be additional years of potentially covered employment. Due to the wide range of possible case scenarios, these cases need a complete review and require further action “as appropriate.” Similar to the previously identified groups, actions can range from reopening the claim, to notifying the claimant of the change in the employment’s qualifying status, to documenting the review and not further contacting the claimant. The review of these claims may include critiquing a prior dose reconstruction summary to determine if the facility’s residual contamination had already been taken into consideration in the prior adjudication of the claim (either because of NIOSH acting as stated in Bulletin No. 05-02 or their triaging of the DR and over-use of exposure).

E) Cases serendipitously identified during normal case handling and all remaining cases from the DEEOIC Master List of employees at the affected AWE facilities will similarly require a review as outlined here because of the revised NIOSH-designated residual contamination periods.

F) For all categories under this action item number, if the claimant has died, the claim is not to be reopened, though known and eligible survivors may be solicited.

6. Given the number and complexity of the task of reviewing all potentially affected cases, tracking is an essential part the process. The tracking process is as follows:

A) The CE begins by identifying a case that is affected by this Bulletin and conducts a review of that case.

B) The CE then fills out Part A of the folder flash sheet (Attachment 2) and indicates what the recommended action is and why.

C) Each DO must designate an individual to serve as the central coordinator for the “Master List.”

D) The CE makes a copy of the partially filled-out folder flash sheet and sends it to the designated coordinator for the Master List in their DO, who makes a notation on the Master List, “CE review complete on [date].” The original folder flash sheet stays in the file so that when someone else picks up the file they will know what work, vis-à-vis this residual report, has already been completed.

E) The file moves to DO supervisory personnel who will make a final determination on the appropriate action on the case and fill out Part B of the folder flash sheet once the appropriate action has been taken (Director’s Order or letter to the claimant, or no action). A second copy of the flash sheet, now completed, is sent to the same central coordinator to whom the first photocopy was sent.

F) The DO designated coordinator notes the end result of the review on the Master List and the date thereof.

Cases are tracked when the action by the CE is recommended (ie. the file has been reviewed) and then again upon completion of whatever action is appropriate (even if the decision is that no action is needed). The progress of this review should be reported to the National Office on a monthly basis until all cases on the list have been completed.

If a case file has multiple volumes, place the folder flash sheet in the “active” B file.

7. A new ECMS Code for reopening will be added to the system for purposes of tracking cases to which this Bulletin pertains. The new code is MA (for NIOSH-Added AWE years). The following is how cases should be coded in ECMS for purposes of this Bulletin:

A. If a claimant requests a reopening, the CE should use the MC code, with the date of the letter from the claimant. If the reopening is granted, the CE uses the MA code and the date of the reopening. If the reopening is not granted, use the MX code.

B. For all other reopenings under this Bulletin, the CE is to use only the MA code.

8. With regard to ECMS, the current employment classification code entries (currently Y / N) for AWE employment will now include the option of R, representing employment entirely outside of weapons-related production and partially or entirely during the site’s period of residual radioactive contamination. An “R” represents that employment at an AWE site is qualifying solely on the basis of Residual contamination. This field must be backfilled for prior claims as encountered.

If employment at multiple AWE sites is claimed and at least one such site’s qualifying employment is solely due to residual radiation, utilize the “R” code. Continue to comply with existing procedures in PM 2-1500.4a(2)(b) by entering *NV in the first three spaces of the “Worksite Desc” “Note” field if that site’s employment is not verified. In the absence of this entry the dates of employment are presumed to have been verified.

9. Be cognizant of the fact that employment based on residual radioactive contamination at an AWE site is not limited to employees of the Atomic Weapons Employer, but also to those employed by subsequent owners or operators of the facility. This presents unique challenges in identifying and verifying employment, as the name of the property and/or its owner and/or its operator may change numerous times. For claims which now identify employment at a “subsequent owner or operator” of an AWE facility, the NO will provide additional guidance at a later date on how employment at these entities is to be verified. If any questions on this arise before such guidance is issued, direct those to the Policy Branch. As with employment during weapons-related production, subcontractor employment with subsequent owners or operators at an AWE facility does not result in coverage during a period of residual radioactive contamination.

10. FAB personnel must be vigilant in identifying cases with a recommended decision to deny when the claim is based on employment at an AWE site with residual contamination. If employment has become covered due to the changes related to NIOSH’s December 2006 report, consideration may be given to remanding the claim if the reason for denial is related to that employment. If the reason for denial is other than employment, but by advising the claimant of the shortcomings of employment the district office may have dissuaded the perfecting of other aspects of the claim, the final decision should clearly mitigate the issue of qualifying employment according to the facts of the particular claim.

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: Revised Residual Radioactive Contamination Report– Summary of All Sites

Attachment 2: Folder Flash to Track & Document Review

Attachment 3: Director’s Order for Reopening

Attachment 4: Sample Letter to Claimant