EEOICPA BULLETIN NO. 07-17

 

Issue Date: May 9, 2007

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Effective Date: March 18, 2007

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Expiration Date: May 9, 2008

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Subject: Processing Claims for the General Atomics Special Exposure Cohort (SEC) Class, January 1, 1960 through December 31, 1969.

 

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 workers from the General Atomics facility in La Jolla, California to have this site added to the SEC. General Atomics is currently recognized as a beryllium vendor and an Atomic Weapons Employer (AWE) from 1960 to 1969 with residual radiation from 1970 to 1995. It is also considered a Department of Energy (DOE) facility from 1996 to 1999 for remediation purposes. The plant is also known as GA, Division of General Dynamics, and John Jay Hopkins Laboratory for Pure and Applied Science.

 

This petition was a result of a determination under 42 C.F.R. § 83.14 made by the 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 19, 2007, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked at General Atomics from January 1, 1960 through December 31, 1969.

 

On February 16, 2007, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:

 

Atomic Weapons Employer (AWE) employees who were monitored or should have been monitored for exposure to ionizing radiation while working at the General Atomics facility in La Jolla, California, at the following locations: Science Laboratories A,B, and C (Building 2); Experimental Building (Building 9); Maintenance (Building 10); Service Building (Building 11); Buildings 21 and 22: Hot Cell Facility (Building 23; Waste Yard (Buildings 25 and 26); Experimental Area (Building 27 and 27-1); LINAC Complex (Building 30); HTGR-TCF (Building 31); Fusion Building (Building 33); Fusion Doublet III (Building 34: SV-A (Building 37); SV-B (Building 39); and SV-D (no building number) for a number of work days aggregating at least 250 work days from January 1, 1960 through December 31, 1969, 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 this designation is included as Attachment 1.  This designation became effective on March 18, 2007, in the absence of Congressional action as provided for under 42 U.S.C. 7384l(14)(c).

 

A report attached to the Secretary of HHS’s letter, entitled “HHS Designation of Additional Members of the Special Exposure Cohort,” provided the supporting rationale for designating a class of employees of General Atomics in La Jolla, California from January 1, 1960 to December 31, 1969.

 

Section IV, “Designation Findings,” summarized NIOSH’s findings that “General Atomics AWE employees in the proposed class could have received internal and external radiation exposure from uranium, thorium, plutonium, and other radioactive materials.”  However, NIOSH “lacks sufficient information, including biological monitoring data, air monitoring information, and process and radiological source information, that would allow it to estimate the potential intakes of thorium” and 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.”  The designation found that NIOSH is “unable to adequately estimate total internal exposure for members of the class, internal dose due to intake of uranium can be reconstructed for exposure starting in October 1963, and tritium internal dose can be estimated after September 1965. NIOSH considers the reconstruction of occupational external radiation doses, including medical dose, to be feasible for members of the class.”

 

Thus, the Secretary of HHS determined that it is not feasible to undertake dose reconstructions for individuals employed at General Atomics from January 1, 1960 through December 31, 1969.

 

References:  Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq.; 42C.F.R. Part 83, Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort Under EEOICPA; February 16, 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 General Atomics, La Jolla, California,” and the SEC Petition Evaluation Report Petition SEC-00064.

 

Purpose:  To provide procedures for processing claims for members of the SEC class at General Atomics from January 1, 1960 through December 31, 1969.

 

Applicability:  All staff.

 

Actions:

 

1.  This new addition to the SEC affects workers employed in certain locations at General Atomics during the period of January 1, 1960 through December 31, 1969 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 for ionizing radiation exposures while working in the Science Laboratories A,B, and C (Building 2); Experimental Building (Building 9); Maintenance (Building 10); Service Building (Building 11); Buildings 21 and 22: Hot Cell Facility (Building 23); Waste Yard (Buildings 25 and 26); Experimental Area (Building 27 and 27-1); LINAC Complex (Building 30); HTGR-TCF (Building 31); Fusion Building (Building 33); Fusion Doublet III (Building 34); SV-A (Building 37); SV-B (Building 39); and SV-D (no building number).  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 General Atomics 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 General Atomics 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 18, 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 General Atomics 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 or non-specified cancer, or cases with a 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 claimant has a specified cancer, as listed in 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 in an appropriately numbered building at General Atomics from January 1, 1960 through December 31, 1969.  In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at General Atomics or in combination with work days for other SEC classes. 

 

To assist the CE in making these determinations, Attachment 3, “Table 4-1: General Atomics Facilities that Conducted Radiological Work” is provided. The report provides detailed information as to what activities were conducted in each of the buildings that is part of the SEC. The entire report is available at the NIOSH website. The CE is to use any supporting documentation in the file in conjunction with the information listed in Attachment 3 when reaching a conclusion for SEC class membership. The evidence merely needs to convince the adjudicator that it is reasonable to conclude that the employee worked at one of the locations identified on Attachment 3 or performed a function that is described as occurring in one of the specified locations. The evidence does not need to establish beyond all reasonable doubt that the employee worked at one of specified locations. 

 

For example, an employee presents a claim stating she was employed at General Atomics from 1965 to 1980. She states that she worked at a variety of buildings at the facility, but for a few years her job in the mid to late 60’s was working in a location where radioactive material was being shipped out of the facility.  Employment records reflect that she had an AEC dosimeter badge issued for the period of 1966-1968. An affidavit from a co-worker states that the employee worked at the site for the claimed period and worked in the shipping department for a part of that time.  No other evidence is presented after development.  From Attachment 3, the CE could deduce that given the job description by the employee and the affiant, it is reasonable to conclude that the employee worked in Building 11 (Service Building), as the primary work described by both the employee and an affiant was radioactive materials shipping.  This would be further substantiated given the existence of the dosimeter badge. 

 

Please note: Employees who worked solely in the Technical Office Building (Building 13); Technical Office East Building #1 (Building 14); and the Technical Office East Building #2 (Building 15) at General Atomics are specifically excluded from coverage under the SEC provision.  

 

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 classes, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision. If the claim was previously denied for a POC of less than 50%, it must first be sent to the National Office for reopening.   

 

7. As discussed earlier, the Secretary of HHS determined that it is not feasible for NIOSH to perform complete dose reconstructions for the class of employees who worked in these buildings at General Atomics from January 1, 1960 through December 31, 1969.  However, NIOSH has indicated that partial dose reconstructions may be possible based on internal dose due to intake of uranium for exposures starting in October 1963, tritium internal dose after September 1965, and occupational external radiation and 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 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 reason code “PD” (partial dose reconstruction). 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 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 General Atomic, 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 is not already at NIOSH effective March 18, 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. 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).

 

12.  FAB personnel must be vigilant for any General Atomics cases that have a recommended decision to deny.  If the employee worked in one of the specified buildings 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.

 

13.   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