EEOICPA BULLETIN NO.07-16

 

Issue Date: May 9, 2007

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Effective Date: March 3, 2007

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Expiration Date: May 9, 2008

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Subject:  Processing Claims for a new Special Exposure Cohort (SEC) Class for covered employees of the Harshaw Chemical Company’s Harvard-Denison Plant in Cleveland, OH, August 14, 1942 through November 30, 1949.

 

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 the Harshaw Chemical Company, Cleveland, OH to have this facility added to the Special Exposure Cohort (SEC).

 

This petition was a result of a determination under 42 C.F.R. § 83.14 made by National Institute for Occupational Safety and Health (NIOSH) that a dose reconstruction for members of the class was not possible. NIOSH submitted its findings to the petitioners 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 at the Harshaw Chemical Company’s Harvard-Denison Plant in Cleveland, OH, August 14, 1942 through November 30, 1949.   

 

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 while working at the Harshaw Harvard-Denison Plant located at 1000 Harvard Avenue in Cleveland, Ohio from August 14, 1942 through November 30, 1949 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. 

 

Pursuant to 42 U.S.C. §7384q of the EEOICPA and 42 C.F. R. § 83.14(b), NOISH has established that it does not have sufficient information to complete dose reconstructions for individual members of the class with sufficient accuracy.

 

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 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.

 

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; and the February 1, 2007 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 Harshaw Harvard-Denison Plant, Cleveland, Ohio.”

 

Purpose: To provide procedures for processing claims for the Harshaw Harvard-Denison Plant from August 14, 1942 through November 30, 1949. 

 

Applicability: All staff.

 

Actions:

 

1. This new addition to the SEC affects those employed by Harshaw Chemical Company, an Atomic Weapons Employer in Cleveland, OH from August 14, 1942 through November 30, 1949,  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 the Harshaw Harvard-Denison Plant. 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 the Harshaw Harvard-Denison Plant during the period from August 14, 1942 through November 30, 1949.

 

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 Harshaw during its SEC class period.  NIOSH will return analysis records for all Harshaw 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 Harshaw 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. 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 March 3, 2007.

 

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 Harshaw 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.  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 employee 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 the Harshaw Harvard-Denison Plant from August 14, 1942 through November 30, 1949. The plant location was at 1000 Harvard Avenue in Cleveland, OH.  The SEC designation is inclusive of all buildings, property, and facilities that comprise the Plant.  Additionally, the extent to which DOE has designated Harshaw as an AWE is synonymous with the coverage of this SEC class. As such, any convincing evidence that the employee was employed at Plant for the required 250 day is sufficient to include him or her in the SEC class. 

 

A map is attached to this directive that identifies various locations and building designations that can used by a CE to assist in reaching determination of SEC class membership (Attachment 2).  It is not necessary for the evidence to establish the exact locations of employment duties at the Plant for SEC class membership to be accepted. Attachment 2 merely provides information that can be used to assist CE in making a determination of SEC membership.

 

The CE is to carefully review all documentation in the file to come to a decision as to whether it is reasonable to conclude the employee worked at the Plant.  The evidence does not need to establish beyond all reasonable doubt that the employee worked at one of specified locations. 

 

In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at Harshaw or in combination with work days for other SEC classes. 

 

If the employee does not meet the SEC employment criteria, 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 dose reconstructions for the class of employees who worked at Harshaw from August 14, 1942 through November 30, 1949.  However, NIOSH has indicated that dose reconstructions for non-specified cancers may be possible because they are able to reconstruct uranium-specific internal and external doses using uranium bioassay data, known uranium production source term data, co-worker intake data, film badge readings and results from work area dose rate measurements.  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”.

 

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 CE should not delete the “NW” or “NI” code already present in ECMS.

 

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 Harshaw cases that have a recommended decision to deny.  If the employee worked at Harshaw 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

Attachment 3

 

 

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