TABLE OF CONTENTS
Paragraph and Subject Page Date Trans. No.
Chapter 2-1900 Reopening Process
Table of Contents. . . . . . . . i 04/12 12-01
1 Purpose and Scope. . . . . . . . 1 04/12 12-01
2 Authority. . . . . . . . . . . . 1 04/12 12-01
3 Claimant’s Explicit Request
for Reopening. . . . . . . . . 1 04/12 12-01
4 Claimant’s Nonspecific
Correspondence or Evidence . . 5 04/12 12-01
5 Reopening and Vacating
a FAB Decision. . . . . . . . 7 04/12 12-01
6 Denying a Request for
Reopening. . . . . . . . . . . 9 04/12 12-01
7 ECS Implications . . . . . . . . 10 04/12 12-01
1 Sample Director’s Order to
Reopen . . . . . . . . . . . . 04/12 12-01
2 Sample Denial of a Request for
Reopening. . . . . . . . . . . 04/12 12-01
1. Purpose and Scope. This chapter describes the process by which the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reopens claims for benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) and vacates decisions of the Final Adjudication Branch (FAB).
2. Authority. Under 20 C.F.R. § 30.320, the Director of the DEEOIC has the authority to reopen a claim and vacate a FAB decision at any time after the FAB has issued a Final Decision pursuant to 20 C.F.R. § 30.316. Also, under 20 C.F.R. § 30.320(a), the Director may vacate a FAB Remand Order. While a reopening review can be initiated by written request by a party to a Final Decision, it may also occur at the discretion of the Director of the DEEOIC for administrative reasons, due to procedural error, or a change in the law, regulations, agency policy, or any other reason at the sole discretion of the Director. If the Director initiates such a review, the National Office (NO) requests the case file from the District or FAB Office for the reopening to be handled locally or delegates the authority to reopen at a District Office (DO) through procedural directive. The Director’s decision to reopen a claim and vacate a FAB decision is not reviewable.
The Director will delegate reopening authority from time to time by issuance of policy directives or other formal guidance that explains the extent of reopening authority conferred. Certain delegated authority has been granted to the Branch Chief of the Policy Branch, the Unit Chiefs for the Policies, Regulations and Procedures Unit (PRPU), and the District Directors (DDs). For delegated reopening authority granted to the DDs, the delegation applies to Assistant District Directors (ADDs) when agreed to by a DD. The DEEOIC Director can grant reopening authority to other individuals in the program as needed. The Director retains sole reopening authority where no delegation has been issued.
3. Claimant’s Explicit Request for Reopening. The regulations allow a claimant or a claimant’s duly authorized representative, at any time after the FAB has issued a Final Decision, to file a written request seeking reopening of a Final Decision under the EEOICPA, pursuant to 20 C.F.R. § 30.320(b). The Regulations allow that such a request may be filed:
Provided that the claimant also submits new evidence of either covered employment or exposure to a toxic substance, or identifies either a change in the Probability of Causation (PoC) guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort (SEC).
There is no limit as to how many times a claimant may request a reopening. A written request for a reopening is to result in a written decision either accepting or denying the reopening.
a. Timeliness. A claimant may file a request for reopening at any time after the FAB has issued a Final Decision.
b. Initial Review. All correspondence in which a claimant explicitly requests a Final Decision be reopened, whether received in a district or FAB office, is forwarded to the DD responsible for the case file. Requests for reopening received in the National Office FAB (FAB-NO) are to be reviewed by the FAB-NO Branch Chief. The DD or FAB-NO Branch Chief is to conduct an initial review of the correspondence to determine whether the request is accompanied by new evidence, or other information, which is of a sufficiently compelling nature to warrant a reopening.
c. Referral for Reopening Action. Once initial review of a reopening request is completed, the DD or FAB-NO Branch Chief is to determine the responsible party for issuing a reopening decision. In many instances, the DD will have authority to issue a reopening decision on his or her own authority, as delegated by the Director. The FAB-NO Branch Chief, however, does not have the capacity to reopen a Final Decision. Accordingly, he or she must decide the appropriate office to which the reopening request must be referred for review. The options available to the FAB-NO Branch Chief are to either refer the matter to a DD with jurisdiction over the case or to the DEEOIC Director. Circumstances in which a DD can reopen a claim are as follows:
(1) Employment. In instances where a denial is based on employment issues: employment records that establish previously denied or unverified time periods of covered Department of Energy (DOE), DOE contractor/subcontractor, Atomic Weapons Employer (AWE), beryllium vendor, or Radiation Exposure Compensation Act (RECA) section 5 employment.
(2) Survivorship. In instances where the denial is based on survivorship issues: records or documents that demonstrate a relationship between a previously denied survivor and the covered employee. Or, cases under Part B where an employee claim has received a Final Decision to approve, but the claimant died before payment could be made. Additionally, instances in which a new survivor is identified; as discussed later in this chapter.
(3) Site Exposure Matrices (SEM). In instances where an update to the SEM or the submission of new factual evidence establish a previously denied, closed, or unverified toxic substance exposure, which is known to be linked to the claimed illness(es). [Or, in cases where new evidence of exposure is received that demonstrates a link to the claimed illness(es).] This guidance applies to any case requiring reopening as a result of SEM Quality Assurance Plan actions or other programmatic re-assessment of denied Part E claims based on SEM exposure or illness link updates.
(4) PoC. In instances where a Final Decision has been issued to deny a claim for any cancer based upon a dose reconstruction returned from the National Institute for Occupational Safety and Health (NIOSH) with a PoC of less than 50%, and the claimant has submitted a diagnosis of a new cancer, the case file is returned to NIOSH for completion of a new dose reconstruction. In cases in which the revised dose reconstruction results in a PoC of 50% or greater, the case is then reopened and a new Recommended Decision is issued accepting the claim. However, if the latest dose reconstruction results in a PoC of less than 50%, no reopening action is necessary, and the new claim for cancer is denied.
(5) New Medical Evidence – In instances where a previous Final Decision has been issued to deny a claim based on the lack of evidence to establish a diagnosis, and medical evidence is submitted which clearly establishes a diagnosis, the Director may reopen the claim as an exercise of discretion when the new evidence is determined to be material to the outcome of a claim.
(6) Change in Law, Regulations or Policies. If the initial review reveals that the claimant has identified a change in the law, regulations, or policies governing the EEOICPA, the DD determines whether the nature and extent of such information satisfies the requirements of 20 C.F.R. § 30.320, and whether it is sufficient to warrant reopening.
d. Denial of Request for Reopening. If the evidence submitted, and/or the change in law, regulations, or policies identified by the claimant, is insufficient to support a reopening, the DD issues a Denial of Request for Reopening.
e. Referral to DEEOIC Director. If the DD or FAB-NO Branch Chief cannot determine whether the evidence submitted, and/or the change in law, regulations, or policies identified by the claimant, is sufficient to warrant a reopening, or if the request presents an issue for which the Director has not delegated reopening authority, the case is to be referred to the DEEOIC Director. Reopening requests involving uniquely complex or potentially sensitive topics are to also be referred to the Director. A memorandum to the Director recommending that the case be reviewed for possible reopening is to accompany the case record. The memorandum is to outline the case history, the evidence of record and explain why the new evidence, or other information, is material to a potential reopening.
4. Claimant’s Non-Specific Correspondence or Evidence. Once a Final Decision is issued, there may arise situations where non-specific correspondence or evidence is received. Under these circumstances, it is difficult to interpret the documentation to determine if the claimant is pursuing a challenge to a Final Decision. To address this problem, it will be necessary to first attempt to contact the claimant by telephone. This action is to be undertaken by the district or FAB office with possession of the case record at the time that the non-specific correspondence or evidence is received. As such, it is vital that the evidence be directed to the appropriate designation upon receipt.
The claimant should be notified of the options available to him or her given the evidence submitted. These options include reconsideration within 30 days of the Final Decision (if applicable) or evaluation under the authority granted to the Director to reopen a claim. If the claimant provides clarification of his or her intention, a note is to be entered in ECS clearly documenting the information provided. Should the Claims Examiner (CE) or FAB representative not reach the claimant by phone within a reasonable period of time (approximately 3 days), and clarification cannot be obtained by telephone, it will be necessary to evaluate the evidence to determine the appropriate action to be undertaken.
a. Non-Specific Correspondence or Evidence Received Within 30 Days of a Final Decision. If attempts to clarify the intent of the claimant are not successful, and the 30-day period granted to request reconsideration has not expired, a DO FAB Manager or the FAB-NO Branch Chief will need to determine if a sufficient basis exists to treat the documentation as a request for reconsideration. If it is determined that the evidence warrants reconsideration, FAB is to proceed with a decision. Otherwise, as explained later, the documentation may be added to the case record with no action taken other than to denote in the case record that the material was received and reviewed.
b. Non-Specific Correspondence or Evidence Received After 30 Days of a Final Decision. Once the option of reconsideration is extinguished, the claimant has only the ability to pursue reopening should they disagree with a Final Decision. Without clarification from the claimant, any non-specific correspondence or evidence will need to be evaluated to determine if sufficient reason exists to require a reopening decision.
(1) Received in DO or DO FAB. If non-specific correspondence or evidence is received in a district or FAB office, the correspondence or evidence is transferred, along with the case file, to the DD with jurisdiction over the case file. The DD reviews the evidence to determine whether there is sufficient basis to warrant a reopening, and whether he or she has been delegated authority to reopen based on the case circumstance. If the DD possesses the authority to reopen a Final Decision, the DD issues a Director’s Order vacating the Final Decision. If the DD does not have the requisite authority to reopen the Final Decision, or there is some other complication, the matter is referred to the DEEOIC Director.
(2) Received in FAB-NO. If such non-specific correspondence or evidence is received in the FAB-NO, the case is submitted to the FAB-NO Branch Chief for evaluation. Depending on the delegations that exist for issuing a reopening decision, as explained earlier in this chapter, he or she will then determine whether the matter is to be referred to a DD or the DEEOIC Director.
(3) Case Referred to the DEEOIC Director. If the DD or FAB-NO Branch Chief is unsure if the evidentiary requirements for a reopening or if some other extenuating circumstance exists to preclude a decision on the sufficiency of the reopening, the matter is to be referred to the DEEOIC Director. Since the claimant has not requested a specific action, he or she is not notified that the case has been sent to the DEEOIC Director for review. The DEEOIC Director, or his or her designated representative, reviews the materials and issues a decision based upon the merits of the evidence. Where review of the case results in a decision that a reopening is not appropriate, a memo is to be prepared for the file responding to the request for review. The case file is then returned to the appropriate office with jurisdiction over the claim.
c. Insufficient Evidence to Pursue Reconsideration or Reopening. In any situation where non-specific evidence or correspondence has been reviewed, clarification has been sought, but not received from a claimant, and there is determined to be insufficient reason to warrant action, the DD or the FAB-NO Branch Chief is to file all the documentation in the case record. A memo is to be placed in the case record which indicates that the non-specific evidence has been reviewed and found insufficient to warrant further action. No decision is required at that time, as no specific action has been requested or deemed warranted.
5. Reopening and Vacating a FAB Decision. The decision to reopen a case or vacate a FAB remand is explained in a Director’s Order. A Director’s Order is prepared under the signature of the DEEOIC Director or an individual with delegated reopening authority.
a. Director’s Order Content. A Director’s Order contains three components.
(1) Cover Letter. The cover letter is addressed to the claimant(s) receiving the Director’s Order. It cites the authority by which a Final Decision or Remand Order is being vacated, and provides a summary of the issue under review, a clear indication of all actions taken under the Order and the reopening conclusion.
(2) Director’s Order. A Director’s Order is the written notice which explains the basis for reopening and vacating a FAB decision. It is generally divided into three parts; including: a Background section, which discusses the history of the case record leading to the Final Decision under contention; a Discussion section which includes analysis of the evidence supporting the decided outcome; and a Conclusion (See Exhibit 1). The decision narrative is to provide descriptive explanation of the rationale supporting the reopening and the basis for vacating a FAB Final Decision or remand. This may entail the identification of misapplied program policy or incorrect interpretation of evidence. A Director’s Order may provide corrective action instruction to a district or FAB office responsible for the case record.
(3) Certificate of Service. This confirms the mailing date of a Director’s Order, and lists the name and address of the intended decision recipient. A Certificate of Service is completed individually for each claimant (or his or her authorized representative) who is party to the Director’s Order. It must be date stamped on the date of decision mailing.
b. Reopening Multiple Claimant Claims. Given the procedure requiring each individual in a multi-claimant case record be party to any decision determining benefit entitlement, situations may arise which require a Final Decision be reopened for a new Recommended Decision and/or Final Decision to be issued. This may be the result of new evidence presented after a Final Decision; or the development of new circumstances that necessitate reopening, such as the identification of a new eligible survivor. In some situations, the new evidence may only affect one claimant; however, if there is any evidence justifying the reopening of one claim, all claims associated with the case file are to be reopened, and all parties to the claim are to be included in a new decision.
c. District or FAB Offices are Responsible for Complying With Any Guidance or Instruction Provided in a Director’s Order.
d. Disagreement to DEEOIC Director. In certain situations, a DD or the FAB-NO Branch Chief may disagree with a Director’s Order issued by the DEEOIC Director. Such disagreements must be brought to the attention of the Director immediately. However, the Director will entertain only disagreements deemed material to the potential outcome of a claim. The DD or FAB-NO Branch Chief must comply with the determination of the Director once any disagreement with a Director’s Order is addressed.
6. Denying a Specific Request for a Reopening. A Denial of Reopening Request is a written decision issued by either the DEEOIC Director or a designated representative. The content of a denial is similar to that of a Director’s Order in that it contains a cover letter, decision notice, and Certificate of Service. Much like a Director’s Order the decision notice provides a background of the case history leading up to the decision under contention, and a discussion of the evidence or argument presented in support of a reopening. However, the decision must provide a detailed explanation as to why the evidence presented is insufficient to warrant reopening of a Final Decision or Remand Order (Exhibit 2). Each objection presented by a claimant is to be addressed in a denial of reopening.
a. Issuance of a Denial of Reopening Request is to be Limited to the Individual(s) Requesting Review of a Final Decision.
b. Denying a Request to Vacate a FAB Remand Order. Only the DEEOIC Director may vacate a FAB Remand Order. In most instances, a reopening review of a Remand Order will originate from within DEEOIC due to the identification of misapplied program policy or challenge to FAB’s rationale for returning a case to the DO. Upon review of the matter, should the Director agree with the Remand Order, he or she will deny the request to vacate by issuing a memorandum to the requesting party. Otherwise, a Director’s Order is to be issued to the claimant(s) which vacates the remand under review and returns the matter to the appropriate office for handling.
7. ECS Implications. All reopening requests, requests to vacate FAB decisions, and decisions granting or denying such requests must be properly documented in the Energy Compensation System (ECS) pursuant to DEEOIC procedures.