EEOICPA BULLETIN NO.08-06
Issue Date: November 16, 2007
Effective Date: October 12, 2007
Expiration Date: One year after issue date
Subject: SEC class designation for Wilhelm Hall renovation workers at Ames Laboratory.
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 employees at the Ames Laboratory in Ames, Iowa to add a 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 recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC a class of employees who worked in certain job categories involved in the renovation of Wilhelm Hall at the Ames Laboratory for the period from January 1, 1955 through December 31, 1970.
On September 12, 2007, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
Sheet metal workers, physical plant maintenance and associated support staff (including all maintenance shop personnel), and supervisory staff who were monitored or should have been monitored for potential internal radiation exposures associated with the maintenance and renovation activities of the thorium production areas in Wilhelm Hall (a.k.a. the Metallurgy Building or “Old” Metallurgy Building) at the Ames Laboratory from January 1, 1955 through December 31, 1970, 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 this class became effective as of 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.
While a new SEC class has been added for employees at Ames Laboratory, NIOSH has determined that it is possible to estimate external exposures and to estimate medical dose of employees working in these job descriptions in Wilhelm Hall at the Ames Laboratory. This means that for claims that do not satisfy the SEC membership criteria, a partial dose reconstruction is to be performed by NIOSH.
This is the second SEC class designation for Ames Laboratory. A previous SEC class for Ames for the period 1942 through December 31, 1954 became effective September 7, 2006 and was the subject of Bulletin No. 07-01.
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 designation.
Purpose: To provide procedures for processing SEC claims for those performing renovation work in Wilhelm Hall at Ames Laboratory.
Applicability: All staff.
1. This additional class 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 Ames during the period of the SEC class. It includes pending cases, cases previously denied and those at NIOSH. It also includes specified and non-specified cancer cases. This list is a comprehensive list of those cases that must be reviewed by the district office(s) and to FAB to determine whether the SEC class criteria are satisfied. This comprehensive list will be provided to the appropriate district offices and FAB under separate cover.
The DEEOIC list includes NIOSH-identified cases, which should be considered for inclusion in the SEC class. 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 Ames 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. However, the code should not be entered until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record.
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.
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 at least 250 work days in a job that would have been involved in the renovation work in Wilhelm Hall at Ames Laboratory between January 1, 1955 and December 31, 1970.
Although thorium use in Wilhelm Hall ceased in 1953, renovations were undertaken beginning in 1955 as part of the process to remove all residual radioactivity, particularly thorium, from the building. In performing these extensive renovations, workers encountered thorium contamination left over from the period during which thorium was used and it was comments from these workers that provided the impetus for this addition to the SEC class. Given the definition of this class in the SEC, the evidentiary category that is most valuable to the CE in making the determination of whether to place and employee in the new class is job title.
Job titles included in the class are sheet metal workers, painters, electricians, welders, plumbers and HVAC mechanics as well as any others who would have participated in tasks such as duct work, removing and disposing of laboratory hoods, removing floor and ceiling tiles, moving basement walls, dismantling machine shops and removing the roof and equipment on the roof. The SEC petition evaluation report specifically states that the SEC class is intended to cover all Ames Laboratory maintenance shop personnel, since they were key to the various renovations that took place in Wilhelm Hall. The report also stated that of all the claims that NIOSH has identified as being included in the class, none had any dosimetry records. Therefore, the renovation work was not monitored, but should have been monitored.
According to the Ames Laboratory records staff, Ames Laboratory records provide detailed information about employees’ job titles during the years of the class. In making a determination on whether an employee is a member of this additional class to the SEC, the CE must first review the case file for any indication of the worker’s job title. If the case file does not contain an indication of job title, the CE is to develop the claim with inquiries to the DOE and the claimant, as appropriate, seeking clarification of the employee’s job title. In so doing, the CE is to enter the DE (Developing Employment) code in ECMS with a status effective date of the letter.
NIOSH has also provided a summary of job titles that are not included in this additional class in the SEC. Excluded job titles include: scientists, chemists, metallurgists, engineers, technicians, and machinists. These employees, although exposed to radionuclides in the course of their employment, were monitored for those exposures and not involved in the unmonitored renovation activities in Wilhelm Hall. This tends to suggest that employees of Ames Laboratory with monitoring records would not be included in the class, unless they present additional evidence that would show they performed renovation work in Wilhelm Hall.
If the employee is in a job title that is not obviously included or excluded, the operative question that needs to be answered by the CE is “does the evidence of record reasonably demonstrate the employee would have been involved in the renovation work inside Wilhelm Hall?” If they worked in a job title known to be related to the renovation activities at the site, or there is some other evidence to show they performed renovations at the facility, then they are included. The CE must apply reasonable discretion in making a judgment in these situations given the evidence of record. The evidence must present a credible basis for the CE to conclude that the employee performed renovations at the lab to be considered part of the SEC class. If not, the claimant should be notified of the SEC criteria and advised to submit probative evidence. For example, a secretary would not likely work as part of a renovation team. As such, it would be necessary for the CE to notify the claimant of the SEC class requirement and allow them the opportunity to present convincing evidence that he or she was performing duties within the scope of the SEC class. Code ECMS with DE (Developing Employment) with the status effective date of the letter. It should be noted that merely showing a work location within Wilhelm Hall is not pertinent to determining class membership, since some of the excluded job descriptions pertain to workers who were located in Wilhelm Hall.
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.
ECMS Coding Reminder: The “SE” status code must be entered with a status effective date equal to the status effective date of the recommended decision to approve. The SEC site must be selected from the drop down menu under the “SEC/SEC Desc” field on the claim screen.
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 performed renovations in Wilhelm Hall at the Ames Laboratory in Ames, IA between January 1, 1955 and December 31, 1970.
However, NIOSH has indicated that partial dose reconstructions are possible for external dosimetry and that medical dose can also be calculated. Accordingly, for cases that do not meet the criteria of the SEC class, the CE must refer these cases back to NIOSH with a new NIOSH Referral Summary Document (NRSD) to perform dose reconstructions. The CE should code these cases as “NI” (Send 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) 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 NIOSH-identified cases 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 into 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 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. In these instances, the CE is to draft a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and refer the rest back to NIOSH for a determination on causation for the non-specified cancer to determine eligibility for medical benefits. The CE is to code this A1 for Recommend Partial Accept in ECMS and use B for the description code. The CE also needs to input the SE (SEC) code with the appropriate reason code. Then input the NI code when the case is sent to NIOSH.
11. If there is a final decision to deny based on a POC of less than 50% in the case and a review of the evidence of record 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 an Ames employee meets the criteria for placement into the Ames SEC class as defined by this Bulletin. 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.
12. 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.
13. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending Ames Laboratory cases that have a recommended decision to deny. All cases on the comprehensive list identified in action item 2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at Ames 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. In ECMS, the status code “F6” must be used to reflect the FAB reversal. FAB should undertake appropriate development, as outlined in item 5, above, if necessary, to determine membership in the SEC class.
If no action is required FAB must follow the instructions specified in action item 15, below, to indicate that a review of the case was completed.
Every effort should be taken to avoid a remand of a potential SEC claim to the District Office. If FAB determines that the case cannot be approved based on the new SEC designation and that re-referral to NIOSH is appropriate (see action items 5 and 7) FAB must remand the case for district office action.
14. The proposed district office operational plan goal for the cases on the DEEOIC list is to:
· complete recommended decisions (including reopening, if required)within 45 days of the date of this Bulletin or refer the cases back to NIOSH within 45 days of the date of this Bulletin for at least 50% of the cases,
· complete recommended decisions (including reopening, if required)within 90 days of the date of this Bulletin or refer the cases back to NIOSH within 90 days for 95% of the cases,
· and complete all cases requiring action due to this Bulletin within 120 days.
15. For cases on the list that do not require any action to be taken (either a new recommended decision to accept based on the SEC or a return to NIOSH) the CE must write a brief memo to the file that explains the case was reviewed under this bulletin, no additional action is necessary, and why. No action is required when the case does not meet the SEC and there is no need to return it to NIOSH.
The CE must then code ‘NA’ – No Action Necessary and then select the appropriate reason code from the reason code drop down list. For Ames Laboratory cases that were reviewed under this bulletin and require no additional action, the reason code that must be selected is ‘06S’ (Reviewed under 08-06, Ames SEC). If the case is an E/B case, the NA-06S must be coded into ECMS B. The status effective date of the ‘NA’ code is the date of the memo to the file stating review is complete and the CE has determined there is no further action necessary.
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