Issue Date: January 24, 2019
Effective Date: January 24, 2019
Expiration Date: January 24, 2020
Subject: Evaluation of Part E claims due to updates to Exhibit 15-4 of the Federal Energy Employees Occupational Illness Compensation Program Act (EEOICPA) Procedure Manual (Version 2.3).
Background: As part of our ongoing efforts to ensure that the Division of Energy Employees Occupational Illness Compensation (DEEOIC) adjudicates claims in accordance with current medical and scientific standards, DEEOIC published several changes to the Procedure Manual (Version 2.3) given specific input from the Advisory Board on Toxic Substances and Worker Health. The edits to the Procedure Manual included changes to presumptive standards applied for evaluating claims for bladder cancer, hearing loss, lung cancer, mesothelioma, ovarian cancer, and pleural plaques. These changes were incorporated into the current version of the Procedure Manual under Exhibit 15-4, and are described below:
· Reduced the days of aggregate exposure to asbestos from 250 days to 30 days and the latency period from 30 years to 15 years for mesothelioma.
· Reduced the latency period for exposure to asbestos from 20 years to 15 years for ovarian cancer.
· Reduced the latency period for exposure to asbestos from 20 years to 10 years for pleural plaques.
· Added Benzidine as an agent related to bladder cancer.
· Added Carbon Disulfide and n-Hexane as agents related to hearing loss.
· Added a presumption about lung cancer related to asbestos exposure.
DEEOIC has developed guidance regarding the reassessment of previously denied cases potentially affected by these specific changes to program policy.
References: Federal (EEOICPA) Procedure Manual Version 2.3
Purpose: To provide guidance for reviewing and processing previously denied claims affected by changes to program policy.
Applicability: All staff.
1. In conjunction with the issuance of this bulletin, the DEEOIC has prepared three (3) lists of cases denied for causation for any of the conditions listed above prior to July 24, 2018. All cases on the 3 lists must be reviewed by Claims Examiner (CE) staff in the district offices to determine whether the new guidance potentially affects the outcome of the case. The DEEOIC National Office will coordinate the distribution of the lists to the district offices. The District Office is responsible for coordinating review of any of its cases undergoing adjudication at the Final Adjudication Branch if the issue before the FAB is unrelated to the items outlined for review in this bulletin.
- List one (1) contains all mesothelioma, ovarian cancer, and pleural plaque cases with a Part E denial based on negative causation. List 1 identifies those cases potentially affected by policy changes involving the reduction in the number of days of exposure and/or reduction to the disease latency period.
· List two (2) contains all bladder cancer and hearing loss cases with a Part E denial based on negative causation. List 2 identifies those cases potentially affected by the addition of a new toxin to the presumption of causation for these two conditions.
- List three (3) contains all lung cancer cases with a Part E denial based on negative causation. The new presumption standard is communicated in Exhibit 15-4. It includes guidance on the criteria needed for a CE to presume that lung cancer has a compensable relationship to occupational exposure to asbestos.
2. Attached to this bulletin, DEEOIC developed a screening worksheet to assist CEs in assessing each case listed on one of the three lists. The CE will need to complete a worksheet for each case identified on lists 1-3. If the same case appears on more than one list, the CE is to complete a separate worksheet for each list review conducted. At the completion of each screening, the CE is to image the completed worksheet into the OWCP Imaging System (OIS) for the case so it becomes part of the official record. The CE indexes the worksheet in OIS as follows:
Category: Other Documents
Subject: Internal Forms/Worksheet
Review Status: Review Complete
Description: Bul. 19-03: List 1
Description: Bul. 19-03: List 2
Description: Bul. 19-03: List 3
3. Based upon the initial screening performed and completion of the worksheet, the cases on each list will be grouped into three categories:
Likely: Cases likely to be granted based on the new toxin/latency information;
Unlikely: Cases not likely to be affected by the new toxin/latency information; and,
Development Needed: Cases for which development may be needed to determine whether the case can be accepted based on the new toxin/latency information.
4. When reviewing the cases against the screening worksheet, the assigned CE conducts an analysis of the existing case evidence to determine whether changes to the presumptive standards affirmatively affect the claim. Even if a CE has referred to an industrial hygienist or contract medical consultant in the past, it will still need to be reviewed again under the new guidance.
Depending on the case undergoing screening, the CE’s analysis of the case evidence must include a careful examination of the medical evidence relating to exposure/latency (List 1); evaluation of exposure data including an updated search of the Site Exposure Matrix (SEM) relating to new toxins linked to bladder cancer or hearing loss (List 2); or satisfaction of medical and exposure criteria for the application of the new lung cancer presumption (List 3).
The CE should initiate reopening on any case where the CE decides that additional development is necessary, such as communication with the claimant, referral to an industrial hygienist, toxicologist, CMC or the claimant’s treating physician, etc. Typically, those cases deemed as “Likely” affected or “Development Needed”, must be reopened for any necessary development and adjudication.
5. In the exercise of the DEEOIC Director’s discretion in the reopening process, the Director is delegating authority to the four District Directors to sign the Director’s Orders for reopening of all cases affected by this new guidance. At the discretion of the District Director, the Assistant District Director may sign the Director’s Order.
6. Once a District Director reopens a claim under the guidance referenced in this Bulletin, the assigned CE reviews and adjudicates the claim based on all existing procedures outlined in the current version of the Procedure Manual, including updates to Exhibit 15-4, and proceeds in the usual manner for making a recommendation to accept or deny the claim.
7. Based on the outcome of “Likely”, “Unlikely”, or “Development Needed” on the screening worksheet(s), the CE must record the finding in ECS on the “Screening (SEC/PER/Other)” screen. The finding of “Likely”, “Unlikely”, or “Development Needed” must be recorded along with the screening date from the screening worksheet. The “Reason” field must also be completed, which will be “Rvwd per Bulletin 19-03, Evaluation of Part E claims due to causation standard changes.” The “No Action Necessary” lower portion of the screening screen does not need completed. The information in ECS must match the information on the screening worksheet.
If the same case appears on more than one list, the CE only needs to make one screening entry in ECS to show that the CE reviewed it under the guidance of this bulletin. The CE should make the entry after all screening on the case is completed. If the screenings from multiple lists have different initial screening findings, select the coding based on the following hierarchy of initial screening findings: “Likely” is the highest; then, “Development Needed”; and lastly, “Unlikely”.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
RACHEL P. LEITON
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, Resource Centers and District Office Mail & File Sections