EEOICPA BULLETIN NO.07-25
Issue Date: August 3, 2007
Effective Date: July 22, 2007
Expiration Date: August 3, 2008
Subject: Processing claims for a new Special Exposure Cohort (SEC) class for the Dow Chemical Company (Madison Site) in Madison, IL, from January 1, 1957 through December 31, 1960.
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 Dow Chemical Company in Madison, Illinois to have a class 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 May 23, 2007, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked at the Dow Chemical Company Plant from January 1, 1957 through December 31, 1960.
On June 22, 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 thorium radionuclides while working at the Dow Chemical Company in Madison, Illinois for a number of work days aggregating at least 250 work days from January 1, 1957 through December 31, 1960, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
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 July 22, 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 had 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.
While a new SEC class has been added for employees at DOW Chemical Company, NIOSH has determined that it is possible to estimate internal and external exposures from uranium and to estimate dose from occupational medical x-rays at Dow in Madison, IL. As such, for claims that do not satisfy the criteria for SEC membership, a partial dose reconstruction is to be performed by NIOSH.
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 June 22, 2007 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Applicability: All staff.
1. This new addition to the SEC affects employees of the Dow Chemical Company who worked at the Madison, Illinois location and were “monitored or should have been monitored” for thorium exposures between January 1, 1957 through December 31, 1960 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 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 Dow in Madison, IL 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 Dow 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” (NIOSH, returned without a dose reconstruction) in ECMS. The effective date for the code entry is July 22, 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 Dow 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.
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 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 then determine if the worker was employed at least 250 work days at Dow Chemical Company (Madison Site) in Madison, IL, from January 1, 1957 through December 31, 1960.
As part of its SEC Petition Evaluation Report (Petition SEC-00079), NIOSH states, “Because it is not possible to determine if employees working in specific locations were not potentially exposed to thorium, all areas of the Dow Madison site are included in the proposed SEC class definition.” Based on this assessment, the DEEOIC has determined that employment at any property, area, building, or other location that comprises the Dow Madison Site permits consideration for SEC class inclusion. Moreover, the DEEOIC is interpreting “monitored or should have been monitored” as applicable to all employees who worked at Dow Chemical in Madison, IL during the period January 1, 1957 through December 31, 1960.
To establish a membership in the SEC class under this designation, the evidence of record must establish that the employee worked for DOW Chemical Company (AWE employer) and worked at the Madison Site in IL. The CE does not need to determine the exact locations within site where the employee performed his or her duties. It is also not necessary for a claimant to show that the employee was monitored for radiation dose. The evidence needs to be of sufficient convincing quality to reasonably demonstrate that a DOW employee performed employment duties at the Madison Site during the SEC specified time frame. This can be accomplished by reviewing the totality of all the employment records presented including any records from the corporate verifier, Social Security Administration, affidavits, or other employment verification records.
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.
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 for Dow Chemical Company (Madison Site) in Madison, IL, from January 1, 1957 through December 31, 1960.
However, NIOSH has indicated that partial dose reconstructions to estimate internal and external exposures from uranium and to estimate dose from occupational medical x-rays are possible. 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 with a new NIOSH Referral Summary Document (NRSD) to perform a dose reconstruction. The CE should code these cases as “NI” (Sent to NIOSH). The status effective date is the date of the Senior or Supervisory CE signature on the 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” (NIOSH Dose Reconstruction Received) and select the “PD” (Partial Dose Reconstruction, SEC) 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” (NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) 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 (Sent to NIOSH) 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-specified cancer, insufficient latency period or does not meet the 250 work day requirement. 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 July 22, 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 Dow Chemical
Company cases that have a recommended decision to deny. If the employee worked at this AWE 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. The district office operational plan goal for the specified cancer cases on the NIOSH list is to complete recommended decisions or refer the cases back to NIOSH within 60 days of the date of this Bulletin for at least 75% of the cases. All cases requiring action due to this Bulletin should be completed within 90 days.
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
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual