EEOICPA BULLETIN NO.07-18
Issue Date: May 9, 2007
Effective Date: March 18, 2007
Expiration Date: May 9, 2008
Subject: Processing Claims for a new Special Exposure Cohort (SEC) Class for the Monsanto Chemical Company in Dayton, OH, from January 1, 1943 through December 31, 1949.
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 from the Monsanto Chemical Company in Dayton, OH to have this class 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 January 17, 2007, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC employees who worked at Monsanto Chemical Company in Dayton, OH between January 1, 1943 through December 31, 1949.
On February 16, 2007, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
Atomic Weapons Employer (AWE) employees who were monitored or should have been monitored for exposure to ionizing radiation while working at Monsanto Chemical Company Units I, III, or IV in Dayton, Ohio, for a number of work days aggregating at least 250 work days during the period from January 1, 1943, through December 31, 1949, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.
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 as of March 18, 2007, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the report to Congress. While Congress had 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.
NIOSH has determined that it is possible to estimate internal exposures from polonium and external exposures from beta-photon exposures, occupational medical X-Rays and ambient environmental sources.
References: Energy Employees Occupational Illness Compensation Program 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 February 16, 2007 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Purpose: To provide procedures for processing SEC claims for Monsanto Chemical Company.
Applicability: All staff.
1. This new addition to the SEC affects Monsanto Chemical Company employees located at Units I, III, or IV in Dayton, Ohio who were “monitored or should have been monitored” for exposures to ionizing radiation between January 1, 1943 through December 31, 1949 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. This additional class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
It should be noted that Units I, III and IV encompass the entire extent to which Monsanto Chemical Company in Dayton, Ohio is designated as an AWE.
2. NIOSH has provided two lists of employees who claimed employment at Monsanto 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 dose reconstruction 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 Monsanto 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. Case files returned from NIOSH to the district office for potential inclusion in the SEC class must be coded as “NW” in ECMS. The effective date for the code entry is March 18, 2007.
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 Monsanto 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: review all relevant documentation contained in the case file, including any documentation that NIOSH may have acquired or generated during the dose reconstruction process.
4. Based on this review, the CE then determines whether the claimant has a specified cancer, as listed in the Federal (EEOICPA) Procedure Manual Chapter 2-600.5. If the employee has a specified cancer, proceed to the Action #5. 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 Monsanto Chemical Company in Dayton, OH between January 1, 1943 through December 31, 1949. The extent to which DOE has designated Monsanto as an AWE is synonymous with the coverage of Monsanto in this SEC class. That is to say the AWE and the SEC class both encompass all of Monsanto Units I, III and IV. It is not necessary for the evidence to establish the exact locations of employment duties for Monsanto employees.
Unit I was located at 1515 Nicholas Road, Dayton, OH. Unit I started in September 1943. Spectrographic and X-ray work was performed at this location through 1949.
Unit III was located at 1601 W. First Street, Dayton, OH. Unit III was first occupied in October 1943 as one building, but eventually Unit III consisted of 20 buildings and included a chemical research laboratory, a powerhouse, a pilot plant and numerous other support buildings. All of the buildings at Unit III are included in the SEC. The primary work occurring at Unit III was research into manufacturing neutron sources. The principal radioisotope at Unit III was polonium-210. Operations in Unit II ceased in 1948.
Unit IV was also known as the Runnymeade Playhouse and was technically located on the corner of Dixon Avenue and Runnymeade Road in Oakwood, OH (which is considered the southern boundary of Dayton). Unit IV was used to manufacture and calibrate neutron sources. The principal radioisotope at Unit IV was polonium-210. Unit IV was demolished in 1950 and by the spring of 1950 all Unit IV structures, services, and utilities had been removed to a depth of seven feet, packaged, and shipped to Oak Ridge for burial.
This SEC does not apply Unit II which was “off Betty Lane.” Additionally, Unit II is not part of the designated AWE because it manufactured rocket propellants and never performed any work that would allow that unit to be considered part of this AWE. If there is a suggestion that a worker was solely at Unit II, they should not have any qualified employment under EEOICPA and they do not fall within this SEC.
This SEC does not apply to Mound, the facility in Miamisburg, OH. Monsanto Chemical Company was the management and operating contractor for Mound from 1947-1988. CEs should be aware of the distinction to avoid confusion.
The CE is to carefully review all documentation in the file to come to a decision as to whether it is reasonable to conclude that the employee worked in Units I, III or IV. The evidence does not need to establish beyond all reasonable doubt that the employee worked at one of the specified locations.
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 complete dose reconstructions for the class of employees who worked for Monsanto Chemical Company in Dayton, OH, from January 1, 1943 through December 31, 1949.
However, NIOSH has indicated that partial dose reconstructions may be possible based on the table below. 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” and select the “PD” (partial dose reconstruction) reason code. The CE should not delete the “NW” or “NI” code already present in ECMS.
8. For those cases that were identified by NIOSH as having a “specified cancer” and therefore returned to the district office, if it is determined that the case does not qualify for the SEC class, the CE, through the Senior CE (SrCe), notifies the appropriate point of contact at NIOSH via E-mail to proceed with the dose reconstruction. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) and inputs the NI code to ECMS, effective the date of the E-mail requesting NIOSH to proceed with dose reconstruction. 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. A hard copy printout of the E-mail is to be inserted in the case file.
9. For any claim that is not already at NIOSH effective March 18, 2007 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process will apply.
10. 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.
11. 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(a).
12. FAB personnel must be vigilant for any Monsanto Chemical cases that have a recommended decision to deny. If the employee worked at this AWE during the time specified, 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.
13. 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
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual