EEOICPA BULLETIN NO.08-01                      

 

Issue Date: October 15, 2007

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Effective Date: September 5 , 2007

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Expiration Date:  October 15, 2008

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Subject: Rocky Flats SEC designations.

 

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 to add a class of employees at the Rocky Flats Plant in Golden, CO to the Special Exposure Cohort (SEC) membership.

 

The National Institute for Occupational Safety and Health (NIOSH) reviewed the petition and decided it qualified for evaluation under 42 C.F.R. § 83.13.  NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”).  On July 2, 2007, the Board submitted two letters of recommendation to the Secretary of Health and Human Services (HHS) to add to the SEC two classes of employees who worked at the Rocky Flats Plant in Golden, CO during certain years.  One letter covers a class of employees who worked at Rocky Flats during the period April 1, 1952 through December 31, 1958 and the other letter covers a class of employees who worked during the period January 1, 1959 through December 31, 1966.    

 

On August 6, 2007, the Secretary of HHS designated both classes for addition to the SEC in a report to Congress.  The class designations are identical except for the years.  The designations cover (with the second set of years noted in parenthesis):

 

Employees of the Department of Energy (DOE), its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 (January 1, 1959 through December 31, 1966), or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort. 

 

Copies of the Secretary’s letters to Congress recommending these designations are included as Attachments 1 and 2.  The SEC designations for these classes became effective as of September 5, 2007, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in a 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.  

 

Additionally, at the time the Board recommended the two Rocky Flats classes be added to the SEC, it also recommended that partial dose reconstructions, including all dose other than neutron dose, were feasible for any Rocky Flats workers who did not qualify for the class. Concurrently, NIOSH agreed to make numerous changes to the underlying methodology for performing dose reconstructions for employees at the Plant.

 

NIOSH agreed to make several changes to the dose reconstruction methodology, but has provided no official description of the changes to be implemented.  NIOSH did, however, state that these changes to their methodology for Rocky Flats dose reconstructions were implemented on August 17, 2007. 

 

Given that NIOSH has indicated a change in the manner in which it will perform dose reconstructions for claims originating from the Rocky Flats Plant, any non-SEC claim that is either pending or contains a final decision based on a POC of <50%, and is dated prior to August 17, 2007, must be returned to NIOSH for a new dose reconstruction.

 

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 August 6, 2007 letters to Congress from the Secretary of HHS in which Secretary Leavitt makes the designations.

 

Purpose: To determine eligibility for two new classes in the SEC and to provide procedures for obtaining new dose reconstructions for all Rocky Flats cases with dose reconstructions dated prior to August 17, 2007 and a POC <50% and which do not qualify for inclusion in the SEC.

 

Applicability: All staff.

 

Actions

 

1.  These new additions to the SEC encompass claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.

 

2. In terms of prioritizing those claims that have been identified as having potential for inclusion in the SEC, NIOSH has provided two lists of employees who claimed employment at the Rocky Flats Plant during the period of these two SEC classes and are pending a dose reconstruction.  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 sample copy of the NIOSH letter to affected Rocky Flats Plant claimants is included as Attachment 3.  The claims examiner (CE) must print out a hard copy of the NIOSH claimant 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 September 5, 2007.

 

Since the NIOSH SEC 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 Rocky Flats 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 cases with employment during the SEC period with either a specified or non-specified cancer and a previous denial for POC less than 50%.  The NIOSH and DEEOIC lists will be compared by the district offices 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 classes, 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.

 

Based on this review, the CE 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 #4.  If the employee does not have a specified cancer, proceed to Action #6.

 

4. If the employee has a specified cancer, the CE must determine if the worker has a period of employment between April 1, 1952 through December 31, 1966 at the Rocky Flats Plant in Golden, Colorado during which the employee had a total of at least 250 days when he/she “was monitored or should have been monitored for neutron exposures.”

 

In determining whether the employment history meets the 250 work day requirement, the CE must consider employment at Rocky Flats that “was monitored or should have been monitored for neutron exposure” in either (or both) the period April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966.  Additionally, the CE must consider employment either solely at Rocky Flats or in combination with work days for other SEC classes.

 

To make a decision as to whether the employee “was monitored or should have been monitored” for neutron exposures at Rocky Flats, the CE must evaluate the case records to determine if any of the following three criteria are met:

 

●    Inclusion on the Rocky Flats Neutron Dosimetry Reconstruction Project (NDRP) list (see below);

 

●    Previously completed NIOSH dose reconstruction for named employee includes neutron exposure or mentions exposure to plutonium; or

 

●    Employment in a building identified as a plutonium building (see below).

 

If the evidence is sufficient to show that the employee meets any one or more of the preceding criteria, the CE may accept that the employee “was monitored or should have been monitored for neutron exposures.”

 

To provide further clarification, The Rocky Flats Neutron Dosimetry Reconstruction Project (NDRP) was a historical project undertaken to better reconstruct neutron dose for workers at the Rocky Flats Plant.  As part of that Project, a list of 5,308 names was compiled.  Every name on the list represents someone who was monitored for neutron dose. In making the determination on whether the employee “was monitored or should have been monitored” the CE should first check this list. If the employee’s name and social security number match one on the list, the CE may accept that the employee was monitored for neutron exposure. The Rocky Flats NDRP list will be provided under separate cover to the district offices.

 

In situations where there is no match with a name on the Rocky Flats NDRP list, the CE should then evaluate the case record to determine if a dose reconstruction report is contained in the file.  Upon scrutiny of the dose reconstruction report, if there is a positive reference to applicable neutron or plutonium exposure, the CE may accept that the employee was monitored or should have been monitored for neutron exposure.

 

Since neutron exposure can occur when a worker is exposed to plutonium, the term “should have been monitored for neutron exposures” has also been interpreted to include any worker who worked in a building where plutonium was used. The DEEOIC has coordinated with NIOSH to identify applicable buildings, which are:

 

Building 86 (which is the same Building as 886)

Building 91 (which is the same Building as 991)

Building 701

Building 771(which is the same Building as 71)

Building 774(which is the same Building as 74)

Building 776(which is the same Building as 76)

Building 777(which is the same Building as 77)

Building 778(which is the same Building as 78)

Building 779(which is the same Building as 79)

 

Note however, that although plutonium work occurred in Building 707, that building was not operational until 1972.  This means that an employee’s work in Building 707 would not qualify that employee for inclusion in either of the Rocky Flats SEC classes because the last date of aggregate coverage of these combined classes in the SEC is December 31, 1966.

 

Therefore, if the employee is not on the NDRP list and there is no mention of applicable neutron dose or plutonium exposure factored into an existing dose reconstruction, the CE is to review the file to determine if the employee worked in any of the buildings noted in this section.  If so, the CE can accept employee as one who “should have been monitored.”

 

If none of these criteria is met, the CE should develop the claim in an attempt to collect any evidence that would reasonably establish inclusion in the SEC.  This would include any documentation of neutron or plutonium exposure or employment in a building where plutonium work occurred.  The evidence merely needs to be of sufficient quality to convince the CE that the employee meets the SEC class requirement for monitored or should have been monitored. If after aforementioned development nothing exists to make such a conclusion, the employee must be excluded from the Rocky Flats classes of the SEC.

 

5. Once the CE has determined the employee has a diagnosed, specified cancer and meets the employment criteria of the SEC class, the CE is to accept the employee in the SEC class. If there is a final decision in the case, that final decision will need to be vacated and the case reopened.  Procedures for so doing are provided in Action #8.

 

6. 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 the Rocky Flats Plant in Golden, Colorado between April 1, 1952 through December 31, 1966.

 

However, NIOSH has indicated that partial dose reconstructions are possible for all exposures except neutrons. Additionally, NIOSH has changed various aspects of the dose reconstruction methodology used for Rocky Flats workers.  Because these changes are extensive, it has been determined that all cases with confirmed employment at Rocky Flats containing a dose reconstruction performed prior to August 17, 2007, calculated with a PoC < 50%, and not qualified for SEC membership must be returned to NIOSH for a new dose reconstruction. If cases have a final decision, they must be reopened as explained in Action #8.

 

7. As a means of identifying the cases affected by the NIOSH changes to the dose reconstruction methodology, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a comprehensive list of all Rocky Flats claims that must be evaluated as part of this Bulletin. The list includes social security numbers for 1145 cases.  This list includes all Rocky Flats cases with a POC of < 50% as well as those with NI/NR (Sent to NIOSH/Received from NIOSH) dates, but lacking any data in the POC field in ECMS. NIOSH has also provided a list of 590 claims they have identified that should be returned for a new dose reconstruction. These lists will be provided to the appropriate district offices under separate cover. For those cases that are on the list that do not qualify for the SEC, e.g., non-specified cancer, insufficient latency period or does not meet the 250 work day requirement, and which have a final decision, the CE, through the Senior CE (SrCe) must initiate a reopening of the case to obtain a new dose reconstruction, provided that the completed dose reconstruction in the file is dated prior to August 17, 2007.

 

If there is not a final decision but the claim meets the criteria outlined here (dose reconstruction completed prior to August 17, 2007 with a POC <50%, but not qualified for inclusion in the SEC), the case must be sent back to NIOSH for a rework.  Steps for referring back to NIOSH are explained in #10.

 

8.  If there is a final decision in the case with a POC <50%, and it falls within the parameters of the SEC class or it qualifies for a new dose reconstruction, it will need to be reopened.

 

In the exercise of the Director’s discretion of the reopening process, the Director is delegating limited authority to the District Director to sign Director’s Orders for reopening. This delegated authority is limited to reopenings based upon evidence that a Rocky Flats employee meets the criteria for placement into the Rocky Flats SEC class or requires a new dose reconstruction due to changes implemented by NIOSH. Two sample Director’s Orders are provided in Attachments 4 and 5Attachment 4 is a sample reopening for inclusion into the SEC. Attachment 5 is a sample reopening for the District Director to reopen those Rocky Flats cases needing a new dose reconstruction. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.

 

9. For those cases which are reopened for the purpose of obtaining a new dose reconstruction, the District Director should code the case as “MN” (NO Initiates Review for Reopening) with a status effective date as the effective date of this bulletin.

 

For all reopenings per this bulletin, upon completing the Director’s Order to reopen the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction.  (The “MZ” status code is not necessary).  The status effective date of the “MD” code is the date of the Director’s Order.  

 

Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been in this specific circumstance.

 

10. Once the claim has been reopened, or if a claim without a final decision requires a rework, the responsible CE refers the case to NIOSH to obtain a new dose reconstruction.  For cases affected by this bulletin, a rework request to the National Office Health Physicist is not required.  Instead, once the claim is reopened (or determined to require a rework), the CE should complete an amended NIOSH Referral Summary Document (ANRSD) and forward the ANRSD to the Public Health Advisor (PHA) assigned to the district office at NIOSH.  The ANRSD should include the following statement in the “DOL Information” section, “Rework request due to multiple changes in methodology for dose reconstructions for Rocky Flats workers and any other applicable modifications.”  The CE should also:

 

a.  Send a letter to the claimant explaining that the case has been returned to NIOSH for a rework of the dose reconstruction as a result of a change in the dose reconstruction methodology applicable to Rocky Flats.  A sample letter to the claimant is included as Attachment 6.

 

b.  Send a copy of this letter to the PHA at NIOSH assigned to the DO along with the weekly DO submissions to NIOSH.  The dates on the ANRSD and the letter to the claimant must both be the same, since this will be the date used for the status code entry into ECMS.  The CE should code the case as “NI” (Sent to NIOSH) and select the “PER” (Rework based on Program Evaluation Report) reason code. (Since this is considered a new dose reconstruction, the CE should not change the existing NR/DR status code to NR/RW as typically done for rework cases. In addition, the existing POC should not be deleted from ECMS.)

 

11. Upon receipt of the new dose reconstruction report incorporating the most recent NIOSH methodology for Rocky Flats, the CE proceeds in the usual manner and prepares a recommended decision.  The CE should code the case as “NR” (Received from NIOSH) and select the “DR” (Dose Reconstruction Received-POC) reason code.  The status effective date will be the date the dose reconstruction is date-stamped into the District Office. The POC should be updated in ECMS based on the new dose reconstruction.

 

12. For any claim that is not already at NIOSH effective September 5, 2007 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process will apply.

 

13. Once the claim is reopened, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision.

 

14. 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.

 

15. FAB personnel must carefully review any Rocky Flats Plant in Golden, Colorado cases that have a currently pending recommended decision to deny based on a POC <50%.  If the existing dose reconstruction was performed prior to August 17, 2007 and the employee is not eligible for inclusion into the SEC, then the case needs to be remanded for a referral to NIOSH for a new dose reconstruction.  If the case does meet the requirements for inclusion into the SEC a remand should be issued to insure appropriate handling of the claim in accordance with this directive.

 

16. The proposed district office operational plan goal for the cases on the NIOSH list and on the list of denied or “in process” cases is to complete recommended decisions (including reopening, if required) or refer the cases back to NIOSH within 45 days of the date of this Bulletin for at least 50% of the cases, and within 90 days for 90% of the cases.  All cases requiring action due to this Bulletin should be completed within 120 days.

 

17.  To track progress on completion of the tasks outlined in this Bulletin, the comprehensive list outlined in Action #7 has four columns added thereto with the headings, “Reviewed Per Bulletin,” “Action Taken,” “Date of Action,” and “Comments.”  The District Offices are to complete these columns as work progresses on implementation of this Bulletin.  The updated spreadsheet is to be forwarded to Mr. Frank James, Special Assistant, DEEOIC, every two weeks commencing on November 2, 2007.

 

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

Attachment 4

Attachment 5

Attachment 6

 

 

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