EEOICPA BULLETIN NO.08-03
Issue Date: October 19, 2007
Effective Date: October 12, 2007
Expiration Date: October 19, 2008
Subject: SEC class designation for the early years at the Hanford Engineer Works
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 at the Hanford Engineer Works (HEW or Hanford) in Richland, WA to add the class to the SEC.
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 August 9, 2007, the Board submitted a letter of recommendation to the Secretary of Health and Human Services (HHS) to add the class of employees who worked at Hanford during the early years of operation to the SEC.
On September 12, 2007, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
Employees of the Department of Energy (DOE), its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for internal radiological exposures while working at the Hanford Engineer Works in: the 300 Area fuel fabrication and research facilities from October 1, 1943 through August 31, 1946; the 200 Area plutonium separation facilities from November 1, 1944 through August 31, 1946; or the 100 B, D and F reactor areas from September 1, 1944 through August 31, 1946; 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 Special Exposure Cohort.
A copy of the Secretary’s letter to Congress recommending the designation is included as Attachment 1. The SEC designation for the class became effective October 12, 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.
Although a new SEC class has been added for employees at the Hanford Engineer Works, NIOSH has determined that, with the exception of internal dose from fission products and plutonium, it is possible to estimate all other internal and external exposures and to estimate occupational medical dose for employees at Hanford. This means that for claims that do not satisfy the SEC membership criteria, 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 September 12, 2007 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designations.
Purpose: To provide procedures for processing SEC claims for those employed at the Hanford Engineer Works in Richland, WA.
Applicability: All staff.
1. This new addition to the SEC encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a list of employees with claimed employment at Hanford during the period of the SEC class. This list is a comprehensive list of those cases that must be reviewed by the district office(s) to determine whether the SEC class criteria are satisfied. It includes pending cases with employment during the SEC period with either a specified or non-specified cancer, and cases previously denied for a POC less than 50% and Hanford cases currently at NIOSH. This comprehensive list will be provided to the appropriate district offices under separate cover.
NIOSH has also identified cases associated with this new class in the SEC. The DEEOIC list includes NIOSH-identified cases. Additionally, 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 Hanford 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 October 12, 2007.
3. For any cases identified 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. Action #5 provides additional guidance on making the determination of whether the employee’s employment should be included in the class.
4. 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 the 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 for at least 250 work days at one of the designated areas between the specified dates. Expressed in chart form the parameters of this new SEC class are:
100 B, D and F reactor areas
September 1, 1944
August 31, 1946
200 Area plutonium separation facilities
November 1, 1944
August 31, 1946
300 Area fuel fabrication and research facilities
October 1, 1943
August 31, 1946
The three start dates each coincide with the first time radioactive materials were used or created in the designated areas. The end date for the entire class is August 31, 1946, which correlates with the end of DuPont being the management and operating contractor at Hanford; General Electric assumed management of Hanford on September 1, 1946. This addition to the SEC, therefore, is predominately, if not entirely, made up of former employees of DuPont. Therefore, as the CE reviews a file and determines that the employee worked for DuPont at Hanford, potential eligibility for this SEC must be considered.
Once it is established that the employee worked at Hanford between the earliest date of the SEC, October 1, 1943 and August 31, 1946, the CE needs to determine whether the employee is included in the class. There are basically two evidentiary categories for the CE to consider when making a judgment of SEC membership in the new class:
● Personal dosimetry
● Employee work location
If the claimant has either personal dosimetry or a work location in one of the specified areas, the CE is to accept that the employee, “should have been monitored” for internal radiological exposures.
With regard to personal dosimetry, according the SEC petition evaluation report, “Routine Hanford practices appear to have required assigning dosimeters to all workers who entered a controlled radiation area.” It further states, “Based on available records, it appears that dosimeters were assigned to all workers who entered controlled radiation areas.”
In the case of this addition to the SEC, all workers who should have been monitored were monitored, though not necessarily for all nuclides needed for an EEOICPA dose reconstruction. The CE is therefore to review the case file and dose reconstruction report, if available, and look for any indication that the employee was monitored. If such evidence is found, then the CE should accept the employee’s work location, during the monitored period, was in one of the areas designated as part of this additional class in the SEC.
However, not all monitoring records from the time period of the class exist today. As such, if the employee worked at Hanford during the DuPont years of operation, but there are no monitoring records pertaining to the employee, the CE is to review the file for any indication that the employee’s work location was either 100 B, D and F reactor areas and/or the 200 Area plutonium separation facilities and/or the 300 Area fuel fabrication and research facilities.
For qualifying SEC class employment, it is essential that the claims examiner review the case file in its entirety, including information obtained from NIOSH during the dose reconstruction process, dosimetry records and contemporaneous medical records to determine if evidence indicates the employee worked at one of the locations specified in the designation of the SEC class. The evidence does not need to rise to the level of beyond all reasonable doubt to qualify for consideration.
For those cases in which there are no dosimetry records and the adjudicator cannot determine whether the employee worked in of the specified areas, additional development is appropriate. In terms of suggesting to claimants what type of additional evidence could be persuasive, claimants can be encouraged to submit affidavits from co-workers regarding work location at Hanford.
6. Once the CE has determined the employee 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 at Hanford in radiological areas prior to August 31, 1946.
However, NIOSH has indicated that partial dose reconstructions, except for dose from internal plutonium and fission products, 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 October 12, 2007 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process will apply.
10. If there is a final decision in the case and a review of the evidence of records establishes likely inclusion in the SEC class, 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 four District Directors to sign Director’s Orders for reopening. This delegated authority is limited to reopenings based upon evidence that a Hanford employee meets the criteria for placement into the Hanford SEC class. A sample Director’s Order is provided in Attachment 3. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.
11. For those cases which are reopened under the authority granted in this Bulletin, 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.
12. Once the claim is reopened, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision.
13. 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.
14. FAB personnel must be vigilant for any Hanford case that has a recommended decision to deny. If the employee worked at Hanford during the time specified, has a specified cancer, and meets the 250 work day requirement, FAB is to review the case for the parameters of the SEC as specified in this Bulletin. If the criteria of the SEC are met, the FAB is to reverse the district office’s recommended decision to deny and accept the case. FAB should undertake appropriate development, if necessary, to determine membership in the SEC class. Every effort should be taken to avoid a remand of a potential SEC claim to the District Office for development.
15. The proposed district office operational plan goal for the cases on the DEEOIC list described in Action #2 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.
16. To track progress on completion of the tasks outlined in this Bulletin, the list provided by DEEOIC outlined in Action #2 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 two weeks after the issue date of this Bulletin.
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