EEOICPA BULLETIN NO.07-15
Issue Date: May 9, 2007
Effective Date: March 3, 2007
Expiration Date: May 9, 2008
Subject: Processing Claims for Allied Chemical Corporation Plant Special Exposure Cohort (SEC) Class, January 1, 1959 through December 31, 1976.
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 Allied Chemical Corporation Plant in Metropolis, Illinois to have this facility added to the 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 January 2, 2007, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked in the Allied Chemical Corporation Plant from January 1, 1959 through December 31, 1976.
On February 1, 2007, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:
Atomic Weapons employees who were monitored or should have been monitored for exposure to ionizing radiation while working at Allied Chemical Corporation Plant in Metropolis, Illinois, from January 1, 1959, through December 31, 1976, 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.
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 on March 3, 2007, 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 external dose and components of the internal dose (from uranium). As such, for cases with a non-specified cancer and/or that do not meet the employment criteria of the SEC class, NIOSH will perform dose reconstructions based on external doses and components of the internal 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 February 1, 2007 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Purpose: To provide procedures for processing claims for the Allied Chemical Corporation Plant SEC class.
Applicability: All staff
1. This new addition to the SEC affects Atomic Weapons employees employed at Allied Chemical Corporation Plant (a.k.a. General Chemical Division and Allied Signal Metropolis Plant) in Metropolis, Illinois, from January 1, 1959 through December 31, 1976 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 class designation is established for employees who were “monitored or should have been monitored” while working at Allied Chemical Corporation Plant. Using the current standards for monitoring of workers at a nuclear facility site, the Department of Labor (DOL) is interpreting “monitored or should have been monitored” as including all employees who worked at Allied Chemical Corporation Plant during the period from January 1, 1959 through December 31, 1976.
2. NIOSH has provided two lists of employees who claimed employment at the Allied Chemical Corporation 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 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 March 3, 2007.
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 Allied Chemical Corporation Plant 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. 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. The CE concurrently 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 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 Allied Chemical Corporation Plant from January 1, 1959 through December 31, 1976.
The Allied Chemical Corporation Plant in Metropolis, Illinois is located on approximately a 1000 acre property along the north bank of the Ohio River; however, operations were conducted in a single fenced-in, restricted area covering 59 acres on the north-central portion of the site. From the SEC Petition Evaluation Report from NIOSH, Allied Plant operations are described as refinement of uranium ore to produce feed material for the Paducah Gaseous Diffusion Plant. For the purposes of the assessment of SEC class membership, employment at any building, property or facility that constitutes the Allied Chemical Plant in Metropolis qualifies.
Presently, employment at the facility is confirmed through information collected from a corporate verifier. In any instance where the corporate verifier has established that an employee worked for the Allied Chemical Company Plant in Metropolis during the qualifying SEC time frame, the CE may accept that the employee is a member of SEC class as long as the employment history meets the 250 work day and medical requirements for the SEC class. The CE must consider employment either solely at Allied Chemical Corporation Plant or in combination with work days for other SEC classes.
It is important for the CE to assess the totality of evidence presented in the case and make a reasoned conclusion as to whether it is sufficient to conclude that an employee worked at the Plant. It is not necessary for the evidence to be so convincing as to prove beyond reasonable doubt that the claim of employment at the Plant is accurate and true.
If the employee does not meet the employee criteria for the SEC class, proceed to Action #7.
6. Once the CE has determined the employee 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 complete dose reconstructions for the class of employees who worked at Allied Chemical Corporation Plant from January 1, 1959 through December 31, 1976. However, NIOSH has indicated that partial dose reconstructions may be possible based on external doses and components of the internal doses (from uranium). 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 to NIOSH to perform dose reconstructions. The CE should code these cases as “NI.” The status effective date is the date of the Senior or Supervisory CE signature on the NIOSH Referral Summary Document (NRSD).
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 “PD” (partial dose reconstruction) reason code. The status effective date is the date the dose reconstruction is date-stamped into the District Office. 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 in 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 Allied Chemical Corporation 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 was not already at NIOSH on March 3, 2007 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. As noted previously, DEEOIC will provide a list identifying all Allied Chemical Corporation Plant cases that may be included in the SEC class including cases that were previously denied. 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).
12. FAB personnel must be vigilant for any Allied Chemical Corporation Plant cases that have a recommended decision to deny. If the employee worked at Allied Chemical Corporation Plant 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.
13. 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.
14. 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 or be referred 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