TABLE OF CONTENTS

 

 

Paragraph and Subject                       Date      Trans. No.

 

Chapter 2-0600 Establishing Special Exposure Cohort Status

 

     Table of Contents. . . . . . . . . . . 06/15     15-06

  1  Purpose and Scope. . . . . . . . . . . 06/15     15-06

  2  Identifying SEC Claims . . . . . . . . 06/15     15-06

  3  Determining SEC Eligibility. . . . . . 06/15     15-06

  4  Statutory SEC Classes. . . . . . . . . 06/15     15-06

  5  Additional SEC Classes . . . . . . . . 06/15     15-06

  6  Workday Requirement. . . . . . . . . . 06/15     15-06

  7  Specified Cancers. . . . . . . . . . . 06/15     15-06

  8  Procedures for Processing SEC Claims . 06/15     15-06

    

Exhibits

 

  1  SEC Class Screening Worksheet. . . . . 06/15     15-06

 

  2  Sample letter to claimant granting . . 06/15     15-06

medical benefits for unaccepted

reverse consequential condition

(medical treatment of underlying

primary cancer)

 


1.   Purpose and Scope.  The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) established the Special Exposure Cohort (SEC) to compensate eligible members of the Cohort without the need for a radiation dose reconstruction and determination of the probability of causation. This means an employee who meets the necessary employment criteria to be included in a designated SEC class and is diagnosed with a specified cancer receives a presumption of causation that the employment caused the specified cancer. This chapter describes the procedures for establishing eligibility under the SEC.

 

2.   Identifying SEC Claims.  The Claims Examiner (CE) is to review the initial application forms carefully, including Form EE-3 - Employment History, to determine whether the potential exists for inclusion in one or more SEC classes.  In addition, a claimant can identify employment at a covered worksite that may qualify for consideration for the SEC. 

 

3.   Determining SEC Eligibility.  To be eligible for benefits under the SEC provision, an employee must belong to a SEC class. In establishing the SEC, Congress designated four statutory SEC classes. The EEOICPA also allows for addition of new SEC classes based on analysis and determination by the U.S. Department of Health and Human Services (HHS).

 

A SEC class can be based on a whole facility, limited to specific buildings in a facility, or even specific processes within a facility. In some cases, a SEC class may be limited to specific job titles or duties in a particular facility. In addition, each SEC class will have specific workday requirements that must be met; typically an employee has to have been employed for a number of workdays aggregating at least 250 workdays at one or more SEC worksites. The workday requirement at Amchitka, Alaska SEC class is met by any employee who spent any part of one workday at that facility, during which he or she was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. Finally, to be eligible under the SEC, medical evidence has to document the employee’s diagnosis with at least one of twenty two (22) specified cancers as listed under paragraph 7.

 

4.   Statutory SEC Classes.  The EEOICPA designated the following statutory SEC classes according to their respective covered facilities:

 

a.   Gaseous Diffusion Plants (GDP) located in Paducah, Kentucky, Portsmouth, Ohio or Oak Ridge, Tennessee. A Department of Energy (DOE) employee, DOE contractor employee, or an employee of an atomic weapons employer (AWE) qualifies for inclusion in this SEC if he or she was:

 

(1)  Employed for an aggregate of 250 workdays prior to February 1, 1992, at one or more of the above GDPs; and

 

(2)  Monitored during such employment through the use of dosimetry badges for exposure to radiation, or worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

 

(a)         If the employee qualifies for possible inclusion in the SEC on the basis of work at a GDP, but Form EE-3 does not indicate whether a dosimeter was worn, the CE is to determine whether the employee had exposure during his or her employment that is comparable to a job that is or was monitored through the use of dosimetry badges.

 

In making this determination, the CE assumes that the employee had comparable radiation exposure if employment occurred during the following periods at the particular GDPs:

 

Paducah GDP:  7/52 – 2/1/92

Portsmouth GDP:  9/54 – 2/1/92

Oak Ridge GDP (K-25):  9/44 – 12/87(not 2/1/92)

 

Documentation shows the presence or active processing of materials that emitted radiation at the sites for these dates.  2/1/1992 represents the date that DOE implemented uniform radiation protection practices consistent with current industry practices and regulations.  The 12/1987 date referenced for the Oak Ridge K-25 plant corresponds to the cessation of uranium processing operations.

 

b.   Amchitka Island, Alaska.  The EEOICPA grants SEC membership to DOE employees, DOE contractors or DOE subcontractors, who were employed prior to January 1, 1974 on Amchitka Island, Alaska, and were exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. The CE considers the following factors in determining whether the employee was exposed to radiation in the performance of duty:

 

 

(1)  Exposure to ionizing radiation from the Long Shot, Milrow, or Cannikin underground nuclear testing/explosions which occurred on Amchitka Island.  The first detonation, Long Shot, occurred on October 29, 1965. The 80 kiloton underground nuclear explosion leaked radioactivity into the atmosphere.  Radioactive contamination on Amchitka Island occurred as a result of activities related to the three underground nuclear tests and releases from Long Shot and Cannikin.

 

(2)  As a result of these airborne radioactive releases, employees who worked on Amchitka Island could have been exposed to ionizing radiation from the Long Shot underground nuclear test.  It is believed that such exposure began approximately one month after the detonation occurred.  Thus, for purposes of determining SEC employment, the period from approximately December 1, 1965 to January 1, 1974 is to be used, unless the claimant can show that the employee was exposed during the month immediately following the detonation.

 

(3)  In contrast to other SEC classes with the 250 workday requirement, this SEC class requires that the employee worked at Amchitka Island for any length of time during the period from approximately December 1, 1965 to January 1, 1974, and was exposed to ionizing radiation from underground nuclear tests.

 

5.   Additional SEC Classes.  HHS has authority to designate additional classes of employees to be added to the SEC. A class of employees may be included as a member of the SEC if HHS determines that it is not feasible to estimate with sufficient accuracy the radiation dose that the members of the class received, and there is a reasonable likelihood that such radiation may have endangered the health of the members of the class.

 

a.   Overview of the SEC Designation Process.  The designation process begins with a petition submitted to the National Institute for Occupational Safety and Health (NIOSH), Division of Compensation Analysis and Support (DCAS). The petitioner may include one or more DOE employees (including DOE contractor or subcontractor employees), or AWE employees, who would be included in the proposed class of employees, or their survivors. Individuals or entities authorized by these employees in writing or labor organizations representing or formerly having represented these employees may also submit a petition.

 

NIOSH may also initiate a petition if it determines that it cannot complete a dose reconstruction for a class of employees.

 

(1)  NIOSH evaluates the petition for inclusion in the SEC to determine if it contains the minimal qualification to proceed with the SEC designation process in accordance with 42 CFR § 83.13 or § 83.14.

(2)  If NIOSH determines that the minimum qualification for review and evaluation has been met, it forwards the petition to the Advisory Board on Radiation and Worker Health (Advisory Board) along with its evaluation.  During one of its regular Board meetings, the Advisory Board reviews NIOSH’s evaluation, hears from the petitioners if they choose and other interested parties. The Advisory Board also reviews any other information it determines to be appropriate for the petition.

(3)  The Advisory Board submits a recommendation on a new SEC class to the Secretary of HHS within 30 calendar days of the Board meeting.

(4)  The Secretary of HHS makes the final decision to add or deny a new class to the SEC based on the recommendation of the Advisory Board and the NIOSH evaluation. If the Secretary of HHS decides to add a new class to the SEC, he or she issues a designation letter to Congress with the definition of the class.

 

(5)  A new SEC class becomes effective 30 calendar days after Congress receives the Secretary’s designation letter, unless Congress objects or provides otherwise.

 

6.   Workday Requirement:  Eligibility under the SEC provision typically requires 250 workdays of eligible employment at one or more SEC worksites. In most cases, the determination of 250 workdays of employment is straightforward.  However, there are some cases where the employee worked for less than a year, and additional guidance is required to calculate the 250 workdays.

 

a.      A workday is considered equivalent to a work shift.  Additional hours worked as overtime will not add up to additional workdays, e.g., two hours overtime for four days is not equivalent to another (8-hour) workday.  However, two work shifts worked back-to-back would be two work shifts, i.e., two workdays.  For an employee whose work shift spans midnight, e.g., 11 PM to 7 AM shift, the work shift is still just one workday.

 

b.   When the employment information shows that the employee worked for a particular period, the CE should not attempt to discern and deduct from the workdays any infrequent periods of non-presence or non-work, like sick leave, strikes, layoffs or vacation time that may be specified.  However, if the employment evidence clearly establishes that the employee was not present and/or working at the SEC worksite for an extended period(s) while on the company payroll, this extended period(s) should not be credited towards meeting the 250 workday requirement.

 

c.   The period of 250 workdays starts with the worker’s first day of employment at the SEC worksite.  There may be breaks in employment, but the workdays may only be accumulated at eligible SEC worksites.

 

     d.   Where the number of days is not apparent in the employee’s primary employment record, e.g., from the employer or union (records for pension, dues, union local records, etc.), the following table may be used for conversion:

 

 

250 days =

50 five-day weeks, or

 

 

42 six-day weeks, or

 

 

12 months (five-day weeks), or

 

 

10 months (six-day weeks), or

 

 

2,000 hours

 

 

One month =

21 days (if evidence indicates six-day weeks, 25 days

 

     e.   Where records of an employee’s earnings are available, such as W-2 Forms or Social Security earnings records, but the periods of employment are not, estimate the 250 workdays as follows.  Divide the annual wages earned at the SEC worksite by the employee’s hourly rate to determine the number of hours worked.  If the number is greater than 2,000 hours, it meets the 250 workday requirement.  The problem with converting dollar amounts to workdays is that they may be rough estimates of actual employment.  As such, this method should only be used when all primary employment data is lacking.

 

f.   There will be some situations where the above approach will not be applicable.  These cases will need to be treated on a case-by-case basis, and if necessary, a referral to the Policy, Regulations and Procedures Unit (PRPU) may be required.

 

7.   Specified Cancers:  In addition to satisfying the employment criteria under a SEC class, the employee must have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision.  As with any cancer claim, the employee’s occupational exposure to radiation must be before the initial date of diagnosis.  For all specified cancers, first exposure can occur at any covered facility during a covered period, and does not need to be within a SEC covered period.  The following are specified cancers in accordance with 20 CFR § 30.5(ff):

 

a.   Leukemia.  [Chronic lymphocytic leukemia (CLL) is excluded].  The onset is to have occurred at least two years after initial exposure at any covered facility during a covered time period.

 

b.   Primary or Secondary Lung Cancer.  (In situ lung cancer that is discovered during or after a post-mortem exam is excluded.)  The trachea and bronchi are included as part of the lungs.  Sarcoma of the lung is a lung cancer.  The pleura and lung are separate organs, so cancer of the pleura, such as mesothelioma, is not a specified cancer.

 

c.   Primary or Secondary Bone Cancer. This includes myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, essential thrombocytosis or essential thrombocythemia, and primary polycythemia vera (also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia).  A diagnosis of polycythemia vera (and the listed a/k/a nomenclature) is sufficient by itself to be classified as a malignancy of the bone marrow. Leukocytosis and thrombocytosis are supplemental descriptors of polycythemia vera.  The bone type of solitary plasmacytoma (a/k/a solitary myeloma) is a form of cancer consistent with bone cancer.  The soft tissue type of solitary plasmacytoma is not a type of bone cancer or the specified cancer of multiple myeloma.  (Note:  Cancer of the hard palate is not bone cancer.)

 

d.   Primary or Secondary Renal Cancers.

 

e.   Other Diseases.  For the following diseases, onset must have been at least five years after initial exposure at any covered facility during a covered time period:  

 

(1)  Multiple myeloma (a malignant tumor formed by the cells of the bone marrow);

 

(2)  Lymphomas (other than Hodgkin’s disease).   Waldenstrom’s macroglobulinemia is considered to be a type of non-Hodgkin's lymphoma.  The ICD-9 code is 273.3.  Waldenstrom’s macroglobulinemia, when diagnosed by lymph node biopsy, can be called lymphoplasmacytoid lymphoma (ICD-9 codes 200.80 - 200.88).  (Note: Lymphoma Waldenstrom is used as a pseudonym for many other disorders not included as a specified cancer.  The acceptance of this condition as a specified cancer is to be based on the ICD code presented in the medical evidence or upon diagnostic clarification from a physician). 

 

(3)  Primary cancer of the:

 

(a)  Thyroid;

 

(b)  Male or female breast;

 

(c)  Esophagus;

 

(d)  Stomach;

 

(e)  Pharynx – The pharynx has 3 parts - nasopharynx, oropharynx and hypopharynx. (The oropharynx includes the soft palate, the base of the tongue, and the tonsils);

 

(f)  Small intestine;

 

(g)  Pancreas;

 

(h)  Bile ducts (includes Ampulla of Vater, a/k/a hepatopancreatic ampulla);

 

(i)  Gallbladder;

 

(j)  Salivary gland;

 

(k)  Urinary bladder;

              

(l)  Brain (malignancies only). The brain is the part of the central nervous system (CNS) contained within the skull, i.e., the intracranial part of the CNS consisting of the cerebrum, cerebellum, brain stem, and diencephalon.  (The intracranial endocrine glands and other parts of the CNS, benign and borderline tumors of the brain, and borderline astrocytomas are excluded);

 

(m)  Colon (includes rectum and appendix);

 

(n)  Ovary;

 

(o)  Liver (except if cirrhosis or hepatitis B is indicated);

 

f.   Carcinoid Tumors.  These tumors are considered primary cancers of the organs in which they are located.  If the organ is one on the specified cancer list, the carcinoid tumor may be considered as a specified cancer.

 

(1)    Carcinoid tumors should be recorded by the organ of the specified cancer.  For example, the CE should use the ICD-9 code of 209.01 for a malignant carcinoid tumor in the duodenum section of the small intestine.

 

(2)    Carcinoid syndrome and monoclonal gammopathies of undetermined significance are not currently recognized as malignant conditions.  Consequently, these conditions should not be considered as cancers.

 

g.   Names or Nomenclature.  The specified diseases designated in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute (NCI) under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.  The Division of Energy Employees Occupational Illness Compensation (DEEOIC) will consult with NCI only on issues pertaining to the name or nomenclature of a disease diagnosed at an anatomic location for the purpose of determining whether it constitutes a cancer. 

 

h.   Identifying Specified Cancers.  For cases where there is uncertainty as to whether a diagnosed cancer is a specified cancer, the CE is to refer the case file to PRPU for consideration.  The examination of the record by PRPU will determine whether the diagnosed cancer originates within the anatomic structure of one of the listed “specified cancer” locations within the body, and conforms to the pertinent latency period, if any.

 

i.   Spread of Cancer.  Where cancer has spread to various sites (organs) it may be difficult to identify the site of origin for the cancer.  If the pathology report (or medical report) lists several alternatives and at least one site is considered a SEC cancer, the claim should be processed first as a SEC cancer claim.

 

8.   Procedures for Processing SEC Claims.  Processing SEC claims entails coordination between the PRPU and district offices/FAB staff.

 

a.   Role of the PRPU:

 

(1)  Issues circulars with guidance on processing newly designated SEC classes. This will include specific instructions on how to evaluate evidence in the case file to determine SEC eligibility.

 

(2)  Prepares a comprehensive list of all reported cases with claimed employment at a newly designated SEC worksite during the period of the SEC class. It will include pending cases, cases previously denied, and those at NIOSH. This comprehensive list will be provided to the district offices and FAB at the time of the issuance of the SEC circular.

 

(3)  Unresolved questions on processing SEC claims, including questions on the definition of a SEC class, uncertainty as to whether a diagnosed cancer should be considered a specified cancer, or questions regarding calculation of the 250 workday requirement are referred to PRPU for guidance.

 

b.   Role of the Claims Examiner:

 

(1)  Identifies a potential SEC claim by reviewing the information on the claim forms or other pertinent evidence in the case file to determine if there is sufficient evidence to suggest that an employee worked as a member of a named SEC class. For newly designated SEC classes, the CE is to review the comprehensive list provided by PRPU as noted in paragraph 8a(2).

 

(2)  Reviews corresponding bulletins and circulars for designated SEC classes for procedures on evaluating evidence to determine if the SEC criteria are met.

 

(3)  Completes an initial screening of cases in the comprehensive list provided by PRPU for a newly designated SEC class. A screening worksheet is included as Exhibit 1. The worksheet is to be completed for all cases on the comprehensive list. Upon completion, the worksheet is to be included in the case record.

 

Based upon the initial screening, the cases on the comprehensive list are 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.

 

The purpose of this initial screening is to prioritize handling of cases that are likely to be included in the newly designated SEC class. This screening step is only applicable to cases on the comprehensive list. It is not applicable to new claims submitted after the list is generated or when a comprehensive list is not generated.  Once screening and prioritization is complete, a more detailed review of all the cases (priority given to cases that are likely to be included in the SEC class) and full development must take place to determine if a case is eligible for benefits under the SEC.

 

(a)  For cases on the comprehensive list at FAB, a designated CE2 or other FAB staff member is to conduct the initial screening and completion of the worksheet.

 

(4)  Evaluates medical evidence in the case file of a potential SEC case to determine if the employee has been diagnosed with a specified cancer.  If a deceased employee meets the employment criteria for SEC class membership, but an explicit specified cancer diagnosis and diagnosis date are not stated in the employee’s medical records, a diagnosis and diagnosis date can be established based on the following:

 

(a)    There is sufficient medical evidence for the employee that indicates a diagnosis of a specified cancer, but the diagnosis is not definitive, and

 

(b)    An expert opinion is provided to support that the deceased employee did have a specified cancer. The medical opinion is to provide sufficient details and rationale based on accepted medical knowledge to support the specified cancer diagnosis and diagnosis date.  The medical opinion can be provided by the employee’s treating physician, a CMC, and/or an expert in a relevant medical field.

 

(5)  If the employee has a specified cancer, the CE is to verify that the employee meets all employment criteria in the SEC class designation, including the workday requirement. In determining whether the employment history meets the workday requirement, the CE can consider employment at a single SEC class, or in combination with workdays at other SEC classes.

 

The CE also reviews any documentation that NIOSH may have acquired or generated during the dose reconstruction process to determine if the employee satisfies the employment criteria of a SEC class(es).

 

(a)  NIOSH will identify and return dose reconstruction analysis records for cases with specified cancers that may qualify under a SEC class to the appropriate district office along with a CD for each case.  The CD will contain all of the information generated to date, e.g., CATI report, correspondence, and dose information.  The Correspondence Folder on the CD should include 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.  The CE is to upload a copy of the NIOSH letter for each claimant into the case file.

 

(b)  There may be some cases not identified by NIOSH that the CE determines may be included in the SEC class. If any such case qualifies under the SEC class and the case is with NIOSH for a dose reconstruction, the CE notifies the appropriate point of contact at NIOSH via e-mail to pend the dose reconstruction process and return dose reconstruction analysis records to the appropriate district office. The CE then uploads a copy of the “sent” e-mail into the case file (making sure the file copy documents the date it was sent).  In addition, the CE is to write a letter to the claimant to advise that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.

 

     (6)  Proceeds in the usual manner for a compensable claim and prepares a recommended decision if the employee has a diagnosed specified cancer and meets the employment criteria of the SEC class. The CE notifies the appropriate point of contact at NIOSH via e-mail so that they may close their file. The CE then uploads a copy of the “sent” e-mail into the case file.

 

(a) If a Part B claim is accepted as a SEC claim based solely upon AWE employment, and the employee has some period of DOE contractor employment  (it does not matter where or when), the accepted Part B cancer can be accepted under Part E, even though the SEC acceptance is based solely on AWE employment.

   

(7) Refers to NIOSH the SEC cases that were evaluated but do not qualify under the SEC provision, e.g. cases with non-specified cancers, specified cancers with insufficient latency period, or cases with insufficient SEC employment.  NIOSH will conduct a full or partial dose reconstruction on the cases.

 

(a)  For those cases which were previously submitted to NIOSH for dose reconstruction but were returned to the district office for consideration in a SEC class, a new NIOSH Referral Summary Document (NRSD) is not required. Instead, the CE notifies the appropriate point of contact at NIOSH via e-mail to proceed with the dose reconstruction. The CE then uploads a copy of the “sent” e-mail into the case file.  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.

 

The CE also notifies 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.

 

(b)  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 probability of causation of 50 percent or greater, and any secondary cancers that are metastases of a compensable cancer.

 

For the non-specified cancer, the CE prepares a NRSD for a dose reconstruction to determine eligibility for medical benefits.  In these SEC cases, all primary cancers are to be listed on the NRSD, including the specified cancer(s).

 

(i)  One exception to this rule is an accepted SEC claim where the specified cancer is a secondary cancer.  Per regulation 20 CFR § 30.400(a), “In situations where the accepted occupational illness or covered illness is a secondary cancer, such treatment may include treatment of the underlying primary cancer when it is medically necessary or related to treatment of the secondary cancer.”  However, “payment for medical treatment of the underlying primary cancer under these circumstances does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of EEOICPA.”  The CE is to send the claimant a letter with regard to payment of medical bills for the unaccepted condition. (See, Exhibit 2)

 

For instance, prostate cancer (non-specified cancer) metastasizes to secondary bone cancer. If secondary bone cancer is accepted as a specified cancer under the SEC provision, medical benefits are provided for both primary and secondary cancers (prostate and bone cancer) under Part B.

 

As such, it may be necessary for the CE to refer the prostate cancer to NIOSH for dose reconstruction to determine eligibility for benefits under Part E. In this case, only prostate cancer is included in the NIOSH NRSD for a dose reconstruction since the secondary bone cancer metastasized from the prostate cancer.

 

(8)  If the CE determines that a case on the comprehensive list, which includes a final decision, does not require any action, the CE writes 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 dose reconstruction.

 

c.   Role of the District Director:

 

(1)  The District Directors have been delegated authority to sign a Director’s Order to reopen a denied final decision if the evidence of record establishes that the employee is diagnosed with a specified cancer and likely to be included in the SEC class. If the District Director is unsure whether the SEC is applicable to a case, the case is to be referred to PRPU.

 

(2)  Once a Director’s Order is issued, the CE is responsible for issuing a new recommended decision.

 

d.  Role of the Hearing Representative (HR):

 

(1)  Reviews cases pending a final decision for possible inclusion under the SEC provision. If the employee qualifies under the SEC provision and the district office issued a recommended decision to deny, the HR is to reverse the district office’s recommended decision and accept the case.

 

Every effort should be taken to avoid a remand of a potential SEC claim to the district office. However, if the HR determines that the case cannot be approved based on the SEC designation and that referral to NIOSH is appropriate or additional significant development is necessary, the HR is to remand the case for district office action.

 

(2)  All cases on the comprehensive list provided by PRPU that are located at a FAB office are to be reviewed for possible inclusion under the SEC provision. If no action is required, a designated CE2 or other FAB staff member is to write a brief memo to the file as noted under paragraph 8b(8).

 

 

Exhibit 1:  SEC Class Screening Worksheet

Exhibit 2:  Letter granting medical benefits for reverse consequential condition (medical treatment of underlying primary specified cancer)