Issue Date: September 27, 2006
Effective Date: July 26, 2006
Expiration Date: September 27, 2007
Subject: Processing Claims for Pacific Proving Grounds SEC Class, 1946 - 1962
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 a class of workers employed at the Pacific Proving Grounds (PPG) in the former United States Trust Territory of the Marshall Islands, to have this facility added to the Special Exposure Cohort (SEC).
The National Institute for Occupational Safety and Health (NIOSH) reviewed the petition and decided it qualified for evaluation under 42 C.F.R. § 83.13. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On May 24, 2006, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked at the PPG for the period from 1946 through 1962.
On June 26, 2006, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
Pacific Proving Grounds, 1946 - 1962:
Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Pacific Proving Grounds (PPG) from 1946 through 1962 for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.
In its evaluation, NIOSH determined that, “… there is insufficient information either to estimate the maximum radiation dose for every type of cancer for which radiation doses are reconstructed that could have been incurred under plausible circumstances by any member of the class, or to estimate the radiation doses of members of the class more precisely than a maximum dose estimate.” Specifically, internal dose cannot be estimated.
NIOSH did determine that it can reconstruct occupational external dose using currently available film badge monitoring data or field radiation surveys. Also, NIOSH can determine exposure from occupational medical x-rays.
In the June 26, 2006 report, the Secretary of HHS determined that it is not feasible to undertake dose reconstructions for the class of employees employed at the PPG from 1946 through 1962.
A copy of the Secretary’s letter to Congress recommending the designation is included as Attachment 1. The SEC designation for this class became effective on July 26, 2006, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the report to Congress. While Congress has the authority to reject the recommendation within the 30-day time frame, no action was taken to contradict the addition of this new SEC class.
References: Energy Employees Occupational Illness Compensation 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 June 26, 2006 report to Congress from the Secretary of HHS, entitled, “HHS Designation of Additional Members of the Special Exposure Cohort, Designating a Class of Employees from Pacific Proving Grounds, Enewetak Atoll.”
Purpose: To provide procedures for processing claims for the PPG SEC class.
Applicability: All staff.
1. This new addition to the SEC affects DOE employees and DOE contractor employees or subcontractor employees employed at the PPG from 1946 through 1962 for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days established for other classes of employees included in the SEC. It is particularly important for the CE to evaluate claims for the PPG workers carefully as it has been shown that many also worked at the Nevada Test Site (NTS) which also has a SEC designation. This new SEC designation is established for workers who were “monitored or should have been monitored” while employed at the PPG. Using the current standards for monitoring of workers at a nuclear facility site, DOL is interpreting “monitored or should have been monitored” as including all employees who worked at the PPG during the period from 1946 to 1962. The PPG included Bikini Atoll, Enewetak Atoll, Johnston Island and Christmas Island. This additional class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. NIOSH has provided two lists of employees who claimed employment at the PPG during its SEC class period. One list covers employees with specified cancers and the other list addresses employees with non-specified cancers. NIOSH will return analysis records for cases with specified cancers 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. A copy of the NIOSH letter to affected PPG claimants is included as Attachment 2. The Claims Examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file.
Since the NIOSH lists contain only cases that were with NIOSH for dose reconstruction at the time this SEC designation became effective, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has also produced a list identifying all PPG cases that are potentially included in the SEC class including cases that were previously denied. The list identifies those cases that must be reviewed by the district office(s) to determine whether SEC class criteria are satisfied including pending cases with employment during the SEC period with either a specified, non-specified cancer, or previous denial for POC less than 50%. The NIOSH and DEEOIC lists will be compared to ensure all potential SEC cases are identified by the district offices. The lists will be provided to the appropriate district offices under separate cover.
3. For any cases identified (either by NIOSH or DEEOIC) as having a potential for compensability based on the new SEC class, the responsible CE is to undertake appropriate action to evaluate whether the evidence of file meets the criteria delineated in the designation. The 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. If the evidence is unclear as to whether the employment or medical documentation satisfies the SEC class requirements, the claimant should be asked to provide clarifying evidence.
4. Based on this review, the CE then determines whether the claimant has a specified cancer, as listed in DEEOIC Procedure Manual Chapter 2-600.5. If the employee has a specified cancer, proceed to the next step. If the employee does not have a specified cancer, proceed to Action #7.
5. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 work days at the PPG from 1946 through 1962. In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at the PPG or in combination with work days for other SEC classes.
Please note that for this new SEC class, the 250 work day calculation includes any time spent at any of the islands or atolls that make up the PPG during its SEC time period. This includes time spent working or living at the PPG during the SEC time period. In addition, employees were evacuated to ships from the PPG prior to nuclear weapons tests being performed. Time spent on ships just prior to a nuclear weapons test is counted toward meeting the 250 work day requirement. For any 24-hour period that the employee was present(either worked or lived) on the PPG or on ships (evacuated prior to a nuclear weapon testing), the CE would credit the employee with the equivalent of three (8-hour) work days. If there is evidence the employee was present at the PPG or on ships for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement.
Since continuous time spent at this site is credited toward the calculation of 250 work days, it is important the CE establish any period when the employee was not present at the site and exclude these periods from the 250 work day calculation. In determining the actual employment period, the CE must have clear and convincing evidence of a beginning date (hire) and end date (termination) of employment at the PPG. Where the evidence is not clear and convincing or consists only of film badge date(s) without a beginning date or end date, the CE must await further policy guidance before proceeding with the verification of covered SEC employment at the site. The National Office of DEEOIC continues to explore methods by which confirmation of employment can occur for workers alleging employment at the PPG.
If the employee does not meet any of the employment criteria, proceed to Action #7.
6. Once the CE has determined the person named in the claim has a diagnosed specified cancer and meets the employment criteria of the SEC classes, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision.
7. As discussed earlier, the Secretary of Health and Human Services determined that it is not feasible for NIOSH to perform dose reconstructions for the class of employees who worked at the PPG from 1946 through 1962. However, NIOSH has indicated that dose reconstructions for non-specified cancers may be possible for external occupational doses and occupational medical x-rays. Accordingly, for cases with a non-specified cancer and/or that do not meet the employment criteria of the SEC class, the CE must refer these cases back to NIOSH to perform dose reconstructions. The CE should code these cases as “NI”.
Upon receipt of the dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision. The CE should code the case as “NR,” but should not delete the “NW” or “NI” code already present in ECMS.
8. If the claim includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any secondary cancers that are metastases of the specified cancer(s), and any non-specified cancers that have a dose reconstruction that resulted in a probability of causation of 50 percent or greater.
9. If a case with a denied final decision now meets the SEC class criteria, the CE must submit the case for reopening through the appropriate process in the district office. The case must be forwarded to the DEEOIC Director to reopen the claim per 20 C.F.R. § 30.320.
10. FAB personnel must be vigilant for any PPG cases that have a recommended decision to deny. If the employee worked and lived at the PPG for the specified period, has a specified cancer, and meets the 250 work day requirement, the recommended decision must be remanded to the district office in the usual manner.
11. A period of 60 calendar days, effective with the issuance date of this directive, is granted for case files affected by this SEC that are returned from NIOSH for evaluation by the DEEOIC to either receive a recommended decision for inclusion in the SEC or referral back to NIOSH for dose reconstruction.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
PETER M. TURCIC
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, and District Office Mail & File Sections