TABLE OF CONTENTS

 

 

Paragraph and Subject                  Page Date   Trans. No.

 

Chapter 2-0600 Establishing Special Exposure Cohort Status

 

     Table of Contents. . . . . . .    i    01/10     10-07

  1  Purpose and Scope. . . . . . .    1    01/10     10-07

  2  Identifying SEC Claims . . . .    1    01/10     10-07

  3  Determining SEC

  Eligibility. . . . . . . . .    1    01/10     10-07

  4  Statutory SEC Classes. . . . .    2    01/10     10-07

  5  Additional SEC Classes . . . .    4    01/10     10-07

  6  Workday Requirement  . . . . .    5    01/10     10-07

  7  Specified Cancers  . . . . . .    7    01/10     10-07

  8  Procedures for Processing

  SEC Claims . . . . . . . . .    10   01/10     10-07

    

Exhibit

 

  1  SEC Class Screening

       Worksheet. . . . . . . . . .         01/10     10-07

 


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.  A person filing a claim can allege inclusion in a SEC by checking the section on Forms EE-1 or EE-2 which asks whether the employee worked at a location that has been designated for membership in the SEC.

 

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

 

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 must have been employed for a number of workdays aggregating at least 250 workdays at one or more SEC work sites. 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, an employee must also have been diagnosed with at least one of twenty two (22) specified cancers as listed under paragraph 6.

 

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 DOE employee, DOE contractor employee or an atomic weapons employee 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 Claims Examiner (CE) must 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)

 

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, and 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 250 workdays 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), Office of Compensation Analysis and Support (OCAS). 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 C.F.R. § 83.13 or § 83.14.

(2)  If NIOSH determines that 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 work sites. 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, where 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 workday 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 work site 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 work site.  There may be breaks in employment, but the workdays may only be accumulated at eligible SEC sites.

 

     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 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 work site 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 Unit of Policy, Regulations and Procedures (UPRP) may be required.

 

7.   Specified Cancers:  In addition to satisfying the employment criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff):

 

a.   Leukemia.  [Chronic lymphocytic leukemia (CLL) is excluded]. The onset must have occurred at least two years after initial exposure during qualifying SEC employment.

 

b.   Primary or Secondary Lung Cancer.  [In situ lung cancer that is discovered during or after a post-mortem exam is excluded.]  The pleura and lung are separate organs, so cancer of the pleura is not to be considered an SEC cancer.

 

c.   Primary or Secondary Bone Cancer. This includes myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, essential thrombocytosis or essential thrombocythemia, primary polycythenia vera [also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia] and chondrosarcoma of the cricoid (cartilage of the larynx).

 

d.   Primary or Secondary Renal Cancers.

 

e.   Other Diseases.  For the following diseases, onset must have been at least five years after initial exposure during qualifying SEC employment:

 

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

 

(2)  Lymphomas (other than Hodgkin’s disease);

 

(3)  Primary cancer of the:

 

(a)  Thyroid;

 

(b)  Male or female breast;

 

(c)  Esophagus;

 

(d)  Stomach;

 

(e)  Pharynx (including the soft palate, or back of the mouth, the base of the tongue, and the tonsils);

 

(f)  Small intestine;

 

(g)  Pancreas;

 

(h)  Bile ducts;

 

(i)  Gall bladder;

 

(j)  Salivary gland;

 

(k)  Urinary bladder (including ureter and urethra);

 

(l)  Brain (malignancies only, not including intracranial endocrine glands and other parts of the central nervous system);

 

(m)  Colon (including rectal/colon);

 

(n)  Ovary;

 

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

 

f.   Carcinoid Tumors.  These tumors, except for those of the appendix, 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 230.7 for a carcinoid tumor in 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 under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature. Cases where there is uncertainty as to whether a diagnosed cancer should be considered a specified cancer must be referred to UPRP.

 

h.   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 UPRP and District Offices/FAB staff.

 

a.   Role of the UPRP:

 

(1)  Issues bulletins 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 work site 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 bulletin.

 

(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 250 work day requirement may be referred to UPRP 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 UPRP as noted in paragraph 7a(2).

 

(2)  Reviews corresponding bulletins 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 UPRP for a newly designated SEC class. A screening worksheet is included as Exhibit 1. The worksheet must 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, the designated CE2 Unit 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.

 

(5)  If the employee has a specified cancer, the CE must 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 work days 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 contains 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.  The CE must print out a hard copy of the NIOSH letter for inclusion in 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 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, the CE must 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 prints a copy of the “sent” e-mail for inclusion in the case file.

 

(7)  Refers potential SEC cases that were evaluated but which 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, to NIOSH for full or partial dose reconstruction.

 

(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 prints a copy of the “sent” e-mail for inclusion in 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 work day 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 cancers must be listed on the NRSD, including the specified cancer(s).

 

(1)         One exception to this rule is an accepted SEC claim where the specified cancer is a secondary cancer. 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, both primary and secondary cancers (prostate and bone cancer) are accepted for medical benefits under Part B.

 

However, per regulation 20 C.F.R. § 30.400, “payment for medical treatment of the underlying primary cancer…does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of the EEOICPA.” 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 must be referred to UPRP.

 

(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, the HR must remand the case for district office action.

 

(2)  All cases on the comprehensive list provided by UPRP that are located at a FAB office must be reviewed for possible inclusion under the SEC provision. If no action is required, FAB must write a brief memo to the file as noted under paragraph 7b(8).

 

 

Exhibit 1: SEC Class Screening Worksheet