EEOICPA BULLETIN NO.08-12                     

 

Issue Date: January 16, 2008

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Effective Date: December 29, 2007

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Expiration Date: December 29, 2008

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Subject:  SEC class designation for workers at the Nuclear Materials and Equipment Corporation (NUMEC) in Apollo, Pennsylvania from January 1, 1957, through December 31, 1983

 

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 workers from the NUMEC in Apollo, Pennsylvania, to be added to the Special Exposure Cohort (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 October 27, 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 the NUMEC in Apollo, PA from January 1, 1957, through December 31, 1983.

 

On November 29, 2007, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.

 

Atomic Weapons Employer employees who were monitored or should have been monitored for exposure to ionizing radiation while working at the NUMEC in Apollo, Pennsylvania from January 1, 1957, through December 31, 1983, 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 SEC.

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 December 29, 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 NUMEC in Apollo, PA, NIOSH has determined that it is possible to reconstruct occupational medical dose and components of the internal dose (uranium doses starting from 1960). 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 November 29, 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 workers at the NUMEC in Apollo, PA.

Applicability: All staff. 

 

Actions:

 

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 cases with claimed employment at the NUMEC facility in Apollo, PA 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 by the 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 also includes cases identified by NIOSH that 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 NUMEC 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 December 29, 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 (PM) 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 at the NUMEC facility in Apollo, PA between January 1, 1957 and December 31, 1983. The CE may review EEOICPA Bulletin No. 02-09 for guidance on calculating 250 work days.

 

The Apollo NUMEC facility is located in the town of Apollo, PA, 33 miles northeast of Pittsburgh, in Armstrong County, PA. The plant is bordered by U.S. Route 66, Warren Avenue and the Kiskiminetas River. The facility consisted of one main bay, the East Bay, and three smaller attached bays, known as the West Bay, the Box Shop and the Annex. The facility also included a main office building, laundry building and a Small Block building that was used for storage of process equipment. The HHS SEC designation for Apollo NUMEC includes the findings that “[a]ll Atomic Weapons Employees who were employed at the Apollo NUMEC facility, regardless of job classification, shall be presumed to have been employed in a job which was or should have been monitored since all NUMEC workers had the potential to receive exposures to onsite releases of radioactive material.” As such, any probative evidence that the employee was employed at the NUMEC facility in Apollo for at least 250 work days during the SEC period is sufficient to include him or her in the SEC class. 

 

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” (Confirmed as SEC Claim) 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 worked at NUMEC in Apollo, PA from January 1, 1957, through December 31, 1983. 

 

However, NIOSH has indicated that partial dose reconstructions are possible based on reconstructed occupational medical dose and components of the internal dose. Accordingly, for cases that had not been submitted to NIOSH and do not meet the criteria of the SEC class, the CE must refer these cases to NIOSH with a NIOSH Referral Summary Document (NRSD) to perform dose reconstructions.  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.

 

For those cases which were previously submitted to NIOSH for dose reconstruction and which were returned to the district office for consideration for inclusion in this SEC class, a new NRSD is not required. 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.

 

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. If the claim includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any non-specified cancer(s) that has a dose reconstruction that resulted in a probability of causation of 50 percent or greater, and any secondary cancers that are metastases of a compensable cancer. 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 if necessary concurrently prepare a NRSD to NIOSH for a dose reconstruction for the non-specified cancer to determine eligibility for medical benefits. The CE is to code this A1 for Recommend Partial Accept/Partial Develop in ECMS and enter the reason code “B” (Part B Acceptance). The CE also needs to input the SE (Confirmed as SEC Claim) code, and then input the NI code when the case is sent to NIOSH. The status effective date for the NI code is the date of the Senior or Supervisory CE signature on the NRSD.

 

9.  If there is a final decision to deny based on a POC of less than 50% 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 Apollo NUMEC employee meets the criteria for placement into the Apollo NUMEC 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. Once a Director’s Order is issued, the district office is responsible for issuing a new recommended decision.

 

10. 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.

 

11. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending Apollo NUMEC 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 the Apollo NUMEC facility 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” (FAB Reversed to Accept) must be used to reflect the FAB reversal. The “SE” status code must be entered with a status effective date equal to the status effective date of the final decision to approve. 

 

If no action is required FAB must follow the instructions specified in action item 13, 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.

 

12. The operational plan goal for the list of cases identified for review as part of this new SEC class is to complete the Part B recommended decision, return to NIOSH, or determine that no action is necessary within 45 days of the date of this Bulletin for at least 50% of the cases, and within 90 days for 95% of the cases.  All cases requiring action due to this Bulletin should be completed within 120 days.

 

13. If after review or further development, the adjudicator determines that a case on the list does not require any action to be taken (either a new recommended decision to accept based on the SEC, a return to NIOSH, or a FAB reversal or remand) the CE/FAB HR must write a brief memo to the file that explains the case was reviewed under this bulletin, no additional action is necessary, and why. A case classified as not requiring any action is a case that does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction.

 

The CE must then code “NA” (No Action Necessary) and then select the appropriate reason code from the reason code drop down list. The coding is restricted to ECMS B only. For Apollo NUMEC cases that were reviewed under this bulletin and require no additional action, the reason code that must be selected is “12S” (Reviewed under 08-12, Apollo NUMEC SEC).  Even if the case is an E/B case, the NA-12S must be coded into ECMS B only.  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. It should be noted that if the case requires further development, the “NA” code is not entered until after development determines that the case does not meet the SEC criteria or there is no need to return it to NIOSH for partial 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