EEOICPA BULLETIN NO. 11-05

 

Issue Date:        February 5, 2011

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Effective Date:    February 5, 2011

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Expiration Date:   February 5, 2012

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Subject:  BWX Technologies, Inc. SEC Class from January 1, 1985 through November 30, 1994

 

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 BWX Technologies, Inc. in Lynchburg, Virginia to be added to the Special Exposure Cohort (SEC).

 

The decision to initiate this petition occurred after the National Institute for Occupational Safety and Health (NIOSH) determined that it could not reconstruct a dose under 42 C.F.R. § 83.14.  NIOSH submitted its findings to the Advisory board on Radiation and Worker Health (“the Board”).  On December 8, 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 BWX Technologies, Inc. in Lynchburg, Virginia.

 

On January 6, 2011, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:

 

All Atomic Weapons Employer employees who worked at BWX Technologies, Inc., in Lynchburg, Virginia, during the period from January 1, 1985 through November 30, 1994, 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 February 5, 2011, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the report to Congress.

 

While a new SEC class has been added for employees at BWX Technologies, Inc., 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 BWX Technologies, Inc. encompassing the period from January 1, 1959 through December 31, 1959, and January 1, 1968 through December 31, 1972, was the subject of Bulletin 10-17.  The new BWX Technologies, Inc. SEC class described in this Bulletin is not meant to replace the prior class, but is an addition to the prior BWX Technologies, Inc. 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 January 6, 2011 letter to Congress from the Secretary of HHS in which Secretary Sebelius makes the designation; SEC Petition Report for BWX Technologies, Inc.

 

Purpose:  To provide procedures for processing SEC claims for workers at BWX Technologies, Inc., in Lynchburg, Virginia.

 

Applicability:  All staff.

 

Actions:

 

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 BWX Technologies, Inc. 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 into 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 those 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, “105 - Rvwd per Bulletin 11-05, BWX Technologies SEC (1/1/85-11/30/94).  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.  BWX Technologies, Inc. is an Atomic Weapons Employer (AWE).  As such, there are no Part E coding implications. 

 

The purpose of this initial screening is to assist the district offices in prioritizing claims poised for acceptance and for purposes of meeting operational plan goals.  The initial screening step is only applicable to cases on the comprehensive list.  It is not applicable to new claims created in ECMS after the list is generated.  These claims will be evaluated for inclusion in the SEC class in the general course of processing.

 

Once screening and prioritization is complete, claims adjudication proceeds in the usual manner.  No matter the outcome of the screening protocol, each claim identified on the comprehensive list of cases must be evaluated formally for SEC inclusion and appropriate coding input, in accordance with the instruction provided in this bulletin, to denote either a decision to accept or deny SEC membership, or review with no further action required. This coding guidance also applies to administratively closed claims identified on the comprehensive list.    

 

4.   For cases on the comprehensive list at FAB, the designated CE2 Unit is to conduct the initial screening, and complete the worksheet and 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 the DOL for adjudication.  A copy of the NIOSH letter to affected BWX Technologies, Inc. employees 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 February 5, 2011.  However, the CE does not enter the status code until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record.

 

There may be some cases on the comprehensive list that were not identified by NIOSH for potential inclusion in the SEC class, 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) or directly by a Journey Level CE, notifies the appropriate point of contact at NIOSH via e-mail to return the dose reconstruction analysis records.  The SrCE/Journey Level CE 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 February 5, 2011.  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 #10.

 

6.  For any cases identified as having 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 Federal (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 a qualified Atomic Weapons Employer (AWE) employee who worked at least 250 workdays at BWX Technologies, Inc., in Lynchburg, Virginia between January 1, 1985 and November 30, 1994.  Based on the description provided in NIOSH’s SEC evaluation report, the facility designation for BWX Technologies, Inc. includes two separately-licensed locations in Lynchburg, Virginia, that performed work for a variety of Atomic Energy Commission (AEC) and DOE projects.  During various periods of the site’s operating history, the Nuclear Navy Fuels Division (NNFD) has been referred to as the ‘main plant’ at Mount Athos, the Nuclear Facilities Plant (NFP), the Nuclear Products Division (NPD), or the Nuclear Operations Group – Lynchburg (NOG-L).  The second location is the Lynchburg Technology Center (LTC), formerly called the Lynchburg Research Center (LRC). The LTC is comprised of four main buildings (A, B, C, and D) and several support buildings and areas (e.g., Liquid Waste Disposal, Building J, silos).  BWX Technologies, Inc. employees who were employed at either location qualify for consideration in the SEC class.

 

If the employee does not have 250 workdays at BWX Technologies, Inc., during the period of the class, the CE must review the file to determine if additional days in the SEC can be found by combining days from employment meeting the criteria for other classes in the SEC and aggregating them together to meet the 250-workday requirement.  If the 250-workday requirement is not satisfied, the CE proceeds to Action #10.

 

9.  Once the CE has determined that 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 or directly by a Journey Level CE, notifies the appropriate point of contact at NIOSH via e-mail, so that NIOSH can close out their file.  The SrCE/Journey Level CE 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.  In addition to the usual recommended decision coding, when a recommended decision to grant benefits based on inclusion in an SEC Class is issued, the CE must enter the code “SER” (SEC Recommended Acceptance) into the claim status history.  This code represents that an SEC acceptance is included in the recommended decision being issued.  This code is entered with the same status effective date as the recommended decision (it doesn’t matter which one is entered first).  The “SER” code has replaced the “SE” code (though there is no reason to update old “SE” codes).

 

When the “SER” code is entered, a reason code must be entered to reflect which SEC class the acceptance is based on.  If the acceptance is based on this BWX Technologies, Inc. SEC, the reason code selected will be “105- Rvwd per Bulletin 11-05, BWX Technologies SEC (1/1/85-11/30/94).

 

In situations where the employee is found to be a member of multiple qualifying SEC classes, the CE is required to input a “SER” and corresponding reason code for each, regardless of the combination of qualifying SEC employment leading to approval of a claim.  For example, if the employee worked for 250 days of SEC covered employment at BWX Technologies, Inc. and another 125 days of SEC employment at the Metallurgical Laboratory, the employment at BWX Technologies, Inc. alone would satisfy inclusion in the SEC.  However, the CE would enter one “SER” with a “105- Rvwd per Bulletin 11-05, BWX Technologies SEC (1/1/85-11/30/94) reason code.  Then the CE would enter a second “SER” with a “907-Rvwd per Bulletin 09-07, Metallurgical Laboratory SEC” reason code.  The CE would also enter the recommended decision code(s) with the same status effective date as the “SER” codes.  The recommended decision is to reference each class for which the employee qualifies.  The content of the decision should state compensability derived from satisfaction of the SEC criteria given the combination of all qualifying SEC employment.  The CE is not to assign acceptance of a claim to one class over another.

 

Please note that the “SEC/SEC Desc” field on the claim screen in ECMS is no longer a required field.  The CE does not enter a BWX Technologies, Inc. SEC description into ECMS.

 

10.  Although HHS 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 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” (Sent to NIOSH) in ECMS B.  The status effective date is the date of the Senior/Journey Level CE 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 SrCE or directly by a Journey Level CE, notifies the appropriate point of contact at NIOSH via e-mail to proceed with the dose reconstruction.  The SrCE/Journey Level CE 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” (Sent to NIOSH) 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 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.

 

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 “PD” (Partial Dose Reconstruction) reason code.  The status effective date is the date the dose reconstruction report is date-stamped into the district office.  The CE does not delete the “NW” (NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) codes already present in ECMS. 

 

11.  If the claim meets the SEC class employment criteria and includes both specified and non-specified cancers, benefits can be awarded for the specified cancer(s) and any non-specified cancer(s) assigned a probability of causation (PoC) of 50 percent or greater.  Medical benefits are also payable for a non-specified primary cancer, where it is found to be the origin of a compensable secondary SEC cancer; i.e. bone, lung, or renal.  For instance, prostate (non-specified primary) cancer metastasizes to secondary bone cancer.  If secondary bone cancer is accepted as a specified cancer under the SEC provision, both the primary and secondary cancers (prostate and bone cancer) are to be accepted for medical benefits without a need for a dose reconstruction for the prostate cancer.  In this situation, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met). Approval would also be granted for medical benefits to be payable for the underlying non-specified primary cancer.  The CE would proceed to code ECMS with the appropriate recommended decision coding along with the status code “SER” (SEC Recommended Acceptance) with the “105- Rvwd per Bulletin 11-05, BWX Technologies SEC (1/1/85-11/30/94) reason code (as described in item #9 above).  In ECMS-B both the primary and secondary cancers would be coded as “A” (Accepted).

 

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 Assistant District Directors (ADDs), at the discretion of the District Director, to sign Director’s Orders for reopening of these cases.  This delegated authority is limited to reopenings based upon evidence that a BWX Technologies, Inc. employee meets the criteria for placement into the BWX Technologies, Inc. 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 or ADD 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 which are 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.  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 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 and ADD, just as the authority to grant reopenings has been delegated in this specific circumstance.

 

14.  In addition to the usual final decision coding, when a final decision to grant benefits based on inclusion in an SEC Class is issued, the FAB CE/HR must enter the code “SEF” (SEC Final Acceptance) into the claim status history.  This code represents that an SEC acceptance is included in the final decision being issued.  This code is entered with the same status effective date as the final decision (it doesn’t matter which one is entered first). 

 

When the “SEF” code is entered, a reason code must be entered to reflect which SEC class the acceptance is based on.  If the acceptance is based on this BWX Technologies, Inc. SEC, the reason code selected will be “105- Rvwd per Bulletin 11-05, BWX Technologies SEC (1/1/85-11/30/94).”  Should the evidence establish the employee’s inclusion in multiple SEC classes, each must be coded in ECMS using the “SEF” and corresponding reason codes.  This will result in multiple “SEF” code entries.  The final decision should identify each SEC class for which the employee is found to be a member.  The final decision should also explain that the decision to accept the claim is based on membership in all qualifying SEC classes.  No attempt should be made to differentiate acceptance based on inclusion in one SEC class in lieu of another.

 

See the example outlined in Action #9 regarding “SER” coding for more than one SEC Class. The FAB CE/HR also enters the final decision code(s) with the same status effective date as the “SEF” codes.

 

If FAB remands a case that the district office had recommended for an SEC acceptance and had coded “SER,” there is no need for the “SER” code to be removed, as it reflects the language in the recommended decision that was issued on that date.  Similarly, if a final decision is vacated on an SEC final decision to accept where “SEF” has been coded, there is no need to remove the “SEF” code, as it reflects the language in the final decision that was originally issued.

 

15.  Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending BWX Technologies, Inc. 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 BWX Technologies, Inc. during the period specified, has 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 to reflect the FAB reversal with a status effective date equal to the date of the final decision to approve.  The CE or FAB staff person enters status code “SEF” (SEC Final Acceptance) with appropriate reason code into ECMS B with the status effective date equal to the date of the final decision to approve. There is no need to enter the “SER” (SEC Recommended Acceptance) code with the recommended decision because the recommended decision was not an SEC acceptance.

 

If no action is required, FAB must follow the instructions specified in Action #15, 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 #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, with a status effective date equal to the date of the remand. Remember, the existing “SER” code does not need to be removed.

 

16.  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 noting 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 code “NA” (No Action Necessary) and then 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 only because the SEC review list is derived from Part B data.  For BWX Technologies, Inc. cases that were reviewed under this Bulletin and require no additional action, the reason code that must be selected is “105” (Rvwd per Bulletin 11-05, BWX Technologies SEC (1/1/1985 – 11/30/1994) and be coded into ECMS B only.  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-105” code is not entered initially.  The “NA-105” 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-105” 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-105” 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 Federal (EEOICPA) Procedure Manual.

 

 

 

RACHEL P. LEITON

Director, Division of Energy Employees

Occupational Illness Compensation

 

 

Attachment 1

Attachment 2

Attachment 3

Attachment 4

 

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