EEOICPA BULLETIN NO.  09-01

 

Issue Date: November 6, 2008

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Effective Date: November 6, 2008

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Expiration Date: November 6, 2009

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Subject: Delegating the Reopening of Claims with New Evidence.


Background: The Director for the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has the discretionary authoriy to issue a Director's Order reopening a claim at any point following issuance of final decision under 20 CFR 30.320.


At any time after receiving an adverse final decision from the Final Adjudication Branch (FAB), a claimant may petition the Director to reopen a claim for additional development and issuance of a new decision.To support a request for reopening, a claimant must submit new factual evidence or argument material to their claim to the Director in support of a request for reopening.

 

Increasingly, routine reopening requests are submitted to the Director. This includes instances where new employment, exposure, medical, or survivorship evidence has become available, which invalidates a prior final decision of the FAB. For example, insufficient medical evidence is initially presented to establish a diagnosed cancer, which then leads to a final decision to deny the claim. Several months after the decision, the claimant obtains a pathology report confirming the existence of cancer and submits this evidence along with a reopening request to the Director. In this situation, a reopening request must be issued as a matter of routine due process, given the diagnostic proof of cancer. 

 

In the interest of expediency and program efficiency, the authority to issue a Director’s Order regarding a case reopening is being delegated, in limited circumstances, to the District Director(s) (DD) of the four DEEOIC District Offices (DO). The authority being delegated applies to certain case scenarios as outlined below.

 

The Director retains sole authority to reopen claims not explicitly identified in this Bulletin or other policy directives. In any instance where uncertainty exists with regard to the application of this delegated authority, the claim record is to be referred to the Office of the Director for review.

 

This bulletin does not affect the guidance provided in PM Chapter 2-1400 regarding the authority of the DD to deny a reopening when a request is not accompanied by new evidence.   

 

References: Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq., Section 7385s-10(e); 20 CFR § 30.320; EEOICPA PM 2-1400.

 

Purpose:  To establish procedures for the administration of certain requests to reopen claims based on the discovery of new evidence.   

 

Applicability:  All Staff

 

Actions: 

 

1. The DEEOIC Director hereby delegates the authority to issue orders concerning the reopening of claims in limited circumstances involving a claimant’s submission of new evidence to the District Director (DD) of the District Office (DO), as described below. This authority will extend to the Assistant District Director (ADD) at the discretion of the District Director. 

 

2. If new medical, employment, or survivorship evidence is received concerning a claim where a final decision has been issued, DEEOIC staff will forward the evidence and the case file to the DD or ADD of the District Office with jurisdiction over the claim, for review.  The only types of circumstances for which this Bulletin applies are as follows:   

 

a. In instances where the denial was based on employment issues: employment records that establish previously denied or unverified time periods of covered Department of Energy, DOE contractor/subcontractor, atomic weapons employer, beryllium vendor employment, or RECA section 5 employment. 

 

b. In instances where the denial was based on medical issues: medical records establishing a diagnosis of a previously denied, closed, or reported occupational or covered illness. 

 

c. In instances where the denial was based on survivorship issues: records or documents that demonstrate a relationship between a previously denied survivor and the covered employee.  Or, cases under Part B where an employee claim has received a final decision to approve, but the claimant died before payment could be made.

 

d. In instances where an update to the Site Exposure Matrices (SEM) or the submission of new factual evidence establish a previously denied, closed, or unverified toxic substance exposure, which is known to be linked to the claimed illness(es).  Or, in cases where new evidence of exposure is received that demonstrates a clear link to the claimed illness(es).  Evidence demonstrating a link between exposure and a claimed illness must meet the criteria outlined in Bulletin 08-38 for programmatic or claim-specific medical evidence to be eligible for reopening under this bulletin.  

 

e. In instances where the decision to deny was based upon a dose reconstruction returned from NIOSH with a Probability of Causation (PoC) of less than 50%, and the claimant has submitted a diagnosis of a new cancer which results in a PoC of 50% or greater.

 

3. The reviewer must determine if the new evidence is unambiguous, and clearly applies to medical, employment, exposure, or survivorship criteria for eligibility under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), DEEOIC regulations, or a DEEOIC bulletin.  The new evidence must be sufficient to reopen the prior final decision. This evidence would include, for example, a medical report containing a diagnosis of a claimed condition, or a birth certificate demonstrating that the claimant is the child of a deceased employee. 

 

4. Requests to reopen cases that are located with DO FAB must be sent to the DD with jurisdiction for review and a determination whether the request meets the criteria outlined in this bulletin for reopening in the DO.  Requests to reopen cases that are located with NO FAB must be sent to the National Office for review and a determination whether the request meets the criteria outlined in this bulletin. 

 

5. Other reopening requests received from claimants will continue to be evaluated in the National Office.  Complex or novel medical, employment, or survivorship evidence must also be reviewed in the National Office.    

 

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.

 

 

 

 

 

RACHEL P. LEITON

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, District Office Mail & File Section, Resource Center Managers.