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,