EEOICPA BULLETIN NO.10-21
Issue Date: August 13, 2010
Effective Date: August 13, 2010
Expiration Date: August 13, 2011
Subject: Mound Plant SEC Class for March 1, 1959 through March 5, 1980
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 Mound Plant in Miamisburg, Ohio to be added to the Special Exposure Cohort (SEC).
The National Institute for Occupational Safety and Health (NIOSH) reviewed the petition and determined that it qualified for evaluation under 42 C.F.R. § 83.14. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On June 11, 2010, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC a class of employees who worked at the Mound Plant in Miamisburg, Ohio.
On July 14, 2010, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:
All employees of the Department of Energy (DOE), its predecessor agencies, and its contractors and subcontractors who had at least one tritium bioassay sample and worked at the Mound Plant in Miamisburg, Ohio from March 1, 1959 through March 5, 1980, for a number of work days aggregating at least 250 work days, occurring either solely under this employment 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. Although Congress had the authority to reject the recommendation within a 30-day time frame, Congress took no action. Therefore, the SEC designation for this class became effective as of August 13, 2010, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the report to Congress.
NIOSH intends to use any available internal and external monitoring data that may become available for an individual claim (and that can be interpreted using existing NIOSH dose reconstruction processes or procedures). Additionally, NIOSH can estimate occupational medical dose. This means that for claims that do not satisfy the SEC membership criteria, a partial dose reconstruction is to be performed by NIOSH.
A previous SEC class pertaining to the Mound Plant, encompassing the period from October 1, 1949 through February 28, 1959, was the subject of Bulletin 08-19. The new Mound Plant SEC class described in this Bulletin is not meant to replace the prior class, but is an addition to the prior Mound Plant SEC class.
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 July 14, 2010 letter to Congress from the Secretary of HHS in which Secretary Sebelius makes the designation; SEC Petition Report for the Mound Plant.
Purpose: To provide procedures for processing SEC class claims for workers at the Mound Plant in Miamisburg, Ohio.
Applicability: All staff.
1. This 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 Mound Plant during the period of the SEC class. It includes pending cases, cases previously denied, and cases at NIOSH. It also includes specified and non-specified cancer cases. All cases on this comprehensive list must be reviewed by the district office(s) and by the Final Adjudication Branch (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.
3. The district offices are to use the comprehensive list as the basis for an initial screening of cases associated with this Bulletin. The purpose of the screening is to make an initial determination on whether a case is likely to meet the criteria for inclusion in the SEC. A screening worksheet is included as Attachment 2. The worksheet must be completed for all cases on the comprehensive list. Upon completion, the worksheet is to be included in the case file. Based upon the initial screening, the cases on the list will be grouped into three categories: those likely to be included in the SEC class; those not likely to be included in the SEC class; and those for which development may be needed to determine whether the case can be accepted into the new SEC class. Claim status codes have been created in ECMS to reflect each of these categories: ISL (Initial SEC Screening, Likely SEC) for those likely to be included in the SEC class; ISU (Initial SEC Screening, Unlikely SEC) for those unlikely to be included in the class; and ISD (Initial SEC Screening, Development Needed) for which development may be needed in order to reach a determination on SEC class inclusion. A reason code corresponding to the SEC class status screening code has also been created, in this instance, 021 (Reviewed under 10-21, Mound Plant SEC). Once the worksheet is completed, the claims examiner (CE) is to select the appropriate claim status code and associated reason code from the drop down lists in ECMS B only. The status effective date for the ISL, ISU and ISD codes is to correspond with the completion date of the screening worksheet.
The purpose of this initial screening is to assist the district offices in prioritizing claims poised for acceptance. Once screening and prioritization is complete, claims adjudication proceeds in the usual manner. No matter the outcome of the screening protocol, each case must be evaluated formally for SEC inclusion and the decision recorded in ECMS. The initial screening step is only applicable to cases on the comprehensive list. It is not applicable to new claims submitted after the list is generated. These claims will be evaluated for inclusion in the SEC class in the general course of processing.
4. For cases on the comprehensive list at FAB, the designated CE2 Unit is to conduct the initial screening, complete the worksheet and enter related coding.
5. The comprehensive list 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 should contain 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 Mound Plant claimants is included as Attachment 3. The CE must print out a hard copy of the NIOSH letter for inclusion in the case file.
Once a case file is returned from NIOSH (including cases that DEEOIC has withdrawn from NIOSH) to the district office for potential inclusion in the SEC class, the CE enters status code “NW” (NIOSH, returned without a dose reconstruction) in ECMS B. The status effective date for the “NW” code entry is August 13, 2010. However, the CE does not enter the status code until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record. The standard procedure for NIOSH coding in ECMS E is to code all additional NIOSH actions only if the “NI” (Sent to NIOSH) status code has been entered. Therefore, the CE enters the “NW” code into ECMS E with the status effective date of August 13, 2010, only if “NI” has already been entered in ECMS E.
There may be some cases on the comprehensive list that were not identified by NIOSH for potential inclusion in the SEC, and consequently are still at NIOSH for a dose reconstruction. These cases must also be evaluated for inclusion in the SEC class in accordance with the procedures in this Bulletin. If any such case qualifies under the SEC class, the CE, through the Senior CE (SrCE), notifies the appropriate point of contact at NIOSH via e‑mail to return the dose reconstruction analysis records. The SrCE then prints a copy of the “sent” e‑mail (making sure the printed copy documents the date it was sent) for inclusion in the case file. The CE is to enter the status code “NW” with a status effective date of August 13, 2010. In addition, the CE must write a letter to the claimant advising that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.
If the case is still at NIOSH and does not qualify under this SEC provision, based on the guidance provided in this Bulletin, then refer to instructions in Action #15.
6. 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.
7. Based on this review, the CE determines whether the employee has a specified cancer, as listed in the EEOICPA Procedure Manual Chapter 2-0600.7. If the employee has a specified cancer, proceed to Action #8. If the employee does not have a specified cancer, proceed to Action #10.
8. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 workdays at the Mound Plant between March 1, 1959 and March 5, 1980.
Based on information presented in the NIOSH SEC Evaluation report, the Mound Plant was the nation’s first postwar U.S. Atomic Energy Commission (AEC) site to be constructed. Construction of the Mound Plant began in 1946, with polonium processing becoming operational in February 1949. The Mound Plant’s main focus was to support DOE weapons and non-weapons program, especially chemicals explosives and nuclear technology. One of its principal missions was to research, develop, and manufacture non-nuclear explosive components for nuclear weapons that were then assembled at other sites. Mound went on to play an important role in research and development, manufacturing weapons, and evaluation and maintenance of explosive components for the nuclear defense stockpiles. Other work included tritium recovery, isotope separation methods, development and production of heat sources in support of space programs, support of the fossil fuels program, and nuclear-materials processing. Following some earlier research with small quantities of tritium, production of tritium for nuclear weapon applications began during the mid-1950s. Related activities included tritium enrichment, recovery processes, and control of tritium-contaminated wastes.
As part of the class designation, HHS defined the class as encompassing all employees of the DOE, its predecessor agencies, and its contractors and subcontractors who had at least one tritium bioassay sample and worked at the Mound Plant. To assist in the administration of the class, NIOSH provided the DEEOIC with a listing of employee names derived from tritium urinalysis logbooks. The listing provides names of individual employees, and when available their individual employee identification number, who gave urinalysis samples during the Mound SEC class period of March 1, 1959 to March 5, 1980. Any name that appears on the NIOSH provided list is presumed to have had at least one tritium bioassay sample.
For the purposes of evaluating a claim under criteria of this SEC class, the CE is to first compare an employee’s name against the NIOSH provided list of Mound workers who provided urinalysis records. In most situations, the listing provides the worker’s last name, first initial and occasionally the worker’s identification number. However, in some instances, a worker’s last name is the only entry. Any reasonable match between the claimed employee and an entry in the NIOSH listing is to be accepted as a positive finding of at least one tritium bioassay sample. For example, if an employee name is John Doe, but the only entry in the NIOSH listing is “Doe” the CE is to accept that the entry applies to the named employee. Without evidence of tritium bioassay sample, there is no basis to count any days of employment at Mound as qualifying for the SEC designation and the CE is to proceed to item #10.
If the CE can match the employee to a tritium bioassay sample, the next step is to determine if the employee was employed by the DOE, its predecessor agencies or its contractors or subcontractors for an aggregate of at least 250 days at the Mound Plant during the period of March 1, 1959 to March 5, 1980. Once the bioassay and employment requirement of the SEC class is satisfied, the CE or hearing representative is to accept the employment component of the SEC class. In these cases, the CE proceeds to Action #9.
If the employee is matched to a tritium bioassay, but does not have the requisite 250 workdays of employment at the Mound Plant, the CE is to investigate the file to determine if adding the balance of any SEC qualifying days at Mound with another partial period of SEC employment will satisfy the aggregate work day requirement. Should the 250 workday requirement for the SEC class not be met, the CE is to proceed to #10.
9. Once the CE has determined the employee has a diagnosed specified cancer and meets the employment criteria of the SEC class, the CE proceeds in the usual manner for a compensable SEC claim and prepares a recommended decision.
If it is determined that the case does qualify for the SEC class, the CE, through the SrCE, notifies the appropriate point of contact at NIOSH via e-mail, so that NIOSH can close out their file. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file.
ECMS Coding Reminder: The “SE” (Confirmed as SEC Claim) status code must be entered into ECMS B with a status effective date equal to the status effective date of the recommended decision to approve. If the case is a B/E case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E.
For all claims where Mound Plant employment is claimed, regardless of whether the SEC criteria are met, the SEC site code “Mound Plant” must be selected under the “SEC/SEC Desc” field on the claim screen.
10. Although NIOSH determined that it is not feasible for NIOSH to perform complete dose reconstructions for this class of employees, NIOSH has indicated that partial dose reconstructions are possible. Accordingly, for cases that have 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 enters status code “NI” in ECMS B. The status effective date is the date of the Senior or Supervisory CE signature on the NRSD. If the case is a B/E case, the “NI” code is not entered into ECMS E until non-radiological toxic exposure development is complete.
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 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) for inclusion in the case file. The CE enters status code “NI” into ECMS B, with a status effective date equal to 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‑workday requirement. In addition, the CE is to notify the claimant by letter that the case is returned to NIOSH for a dose reconstruction and the reason(s) it does not qualify for the SEC class. The CE is to send a copy of this letter to NIOSH. If the case is a B/E case, and toxic exposure development was completed with a memorandum to the file (with a prior “NI”/”NW” code), the CE enters status code “NI” into ECMS E with the status effective date of the e-mail requesting NIOSH to proceed with dose reconstruction.
Upon receipt of the dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision. The CE enters status code “NR” (NIOSH Dose Reconstruction Received) in ECMS B and selects the reason code of “PD” (Partial Dose Reconstruction). The status effective date is the date the dose reconstruction report is date-stamped into the district office. The CE should not delete the “NW” or “NI” codes already present in ECMS. If the CE had previously entered “NI” in ECMS E, the CE also enters codes “NR” and “PD” in ECMS E. If the case is a B/E case, the CE enters the Probability of Causation (PoC) into ECMS B and ECMS E (regardless of whether the “NI” code had previously been entered).
11. If the claim meets the SEC employment criteria and 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 resulting in a probability of causation (PoC) of 50% or greater, and any secondary cancers that are metastases of a compensable cancer. In these instances, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and any cancers for which there is a POC of 50% or greater. The CE enters status code “SE” into ECMS B. The status effective date for the “SE” code is the date of the recommended decision to accept the specified cancer. If the case is a B/E case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E.
If necessary, the CE concurrently prepares a NRSD to NIOSH for a dose reconstruction for any non-specified cancer(s) to determine eligibility for medical benefits. The CE enters status code “NI” into ECMS B. The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD. If the case is a B/E case, the CE enters status code “NI” in ECMS E only after the non-radiological toxic exposure development is complete and the CE cannot accept causation. In that case the CE creates a memorandum to file stating that toxic exposure development is complete, and enters status code “NI” in ECMS E with the date of the memorandum as the status effective date.
12. If a claim has 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, the case is reopened. In the exercise of the DEEOIC Director’s discretion in the reopening process, the Director is delegating limited authority to the four District Directors and the Assistant District Directors (ADDs), at the discretion of the DD, to sign Director’s Orders for reopening of these cases. This delegated authority is limited to reopenings based upon evidence that a Mound Plant employee meets the criteria for placement into the SEC class as defined by this Bulletin. This delegated authority extends to any case potentially affected by this SEC class. However, if the District Director is unsure of whether the SEC is applicable to the case, the case should be referred to the National Office. A sample Director’s Order is provided in Attachment 4. The DEEOIC 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.
13. For those cases reopened under the authority granted in this Bulletin, the District Director or ADD enters status code “MN” (NO Initiates Review for Reopening) in ECMS B with a status effective date equal to the effective date of this Bulletin. If the District Director or ADD is also reopening Part E, the “MN” code is also entered into EMCS E. For all reopenings per this Bulletin, upon completing the Director’s Order to reopen the claim, the District Director or ADD enters status code “MD” (Claim Reopened – File Returned to DO) into ECMS B/E (as appropriate) to reflect that the case has been reopened and is in the district office’s jurisdiction. (The “MZ” status code, receipt of Director’s Order in the DO or FAB, 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 or ADD, just as the authority to grant reopenings has been delegated in this specific circumstance.
14. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending Mound Plant cases that have a recommended decision to deny. All cases on the comprehensive list identified in Action #2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at the Mound Plant during the time period specified, has at least one tritium bioassay sample, a specified cancer, and meets the 250-workday requirement, the FAB is to reverse the district office’s recommended decision to deny, and accept the case. The CE or FAB staff member enters status code “F6” (FAB Reversed to Accept) with the appropriate reason code into ECMS B/E (as appropriate) to reflect the FAB reversal with a status effective date equal to the date of the final decision to accept. The CE or FAB staff member also enters status code “SE” in ECMS B/E (as appropriate) with a status effective date equal to the date of the final decision to accept.
For all claims where Mound Plant employment is claimed, regardless of whether the SEC criteria are met, the SEC site code “Mound Plant” must be selected under the “SEC/SEC Desc” field on the claim screen.
If no action is required, FAB must follow the instructions specified in Action #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 accepted based on the new SEC designation and that re-referral to NIOSH is appropriate (see Action #10), the CE or FAB staff member remands the case for district office action. The CE or FAB staff member enters status code “F7” (FAB Remanded) with “OTH” (No DO Error – Other) as the reason code in ECMS B/E (as appropriate), with a status effective date equal to the date of the remand.
15. If, after review or further development, the CE or FAB staff member determines that a case on the list does not require any action, the CE or FAB staff member must write a brief memo to the file indicating that the file was reviewed and note the reason why no additional action is necessary. A case classified as not requiring any action is a case that does not meet the SEC criteria, and there is no need to return it to NIOSH for partial dose reconstruction.
The CE must then code “NA” (No Action Necessary) and select the appropriate reason code from the reason code drop down list. Since the “NA” coding is specifically tied to the SEC review list generated by DEEOIC, the “NA” code is restricted to ECMS B. This is because the SEC review list is derived from Part B data. For Mound Plant cases that were reviewed under this Bulletin and require no additional action, the reason code that must be selected is 021 (Reviewed under 10-21, Mound Plant SEC class) and be coded into ECMS B only, even if the case is a B/E case. The status effective date of the “NA” code is the date of the memo to the file stating the review is complete, and the CE has determined there is no further action necessary. For those instances in which further development is necessary, the “NA-021” code is not entered initially. The “NA-021” code is only entered when the CE determines after development that the case does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction. For those cases on the DEEOIC list that were not withdrawn from NIOSH, the CE enters the “NA-021” code only after the CE determines that the case does not meet the SEC criteria. These cases remain at NIOSH for completion of a partial dose reconstruction.
Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-021” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.
Disposition: Retain until incorporated in the 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, Resource Centers and District Office Mail & File Sections.