EEOICPA BULLETIN NO.07-23
Issue Date: August 3, 2007
Effective Date: July 22, 2007
Expiration Date: August 3, 2008
Subject: Processing Claims for a new Special Exposure Cohort (SEC) Class for covered employees of the Los Alamos National Laboratory (LANL), March 15, 1943 through December 31, 1975.
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 employees from the Los Alamos National Laboratory in Los Alamos, New Mexico to have a 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 May 23, 2007, the Board submitted recommendations to the Secretary of Health and Human Services (HHS).
Based on the Board’s recommendation, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress on June 22, 2007:
Employees of the Department of Energy (DOE), its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at the Los Alamos National Laboratory (LANL) for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
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 July 22, 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 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.
NIOSH has determined it is possible to reconstruct components of the internal dose including tritium, polonium, plutonium, and uranium, and of the external dose including gamma, beta, neutron and occupational medical X-ray. As such, cases with a non-specified cancer, and/or do not meet the employment criteria of the SEC class, may be considered for partial dose reconstructions.
This is the second SEC class designation for LANL. A previous SEC class for LANL based on exposure to radioactive lanthanum (RaLa) was approved on December 9, 2006 and was the subject of Bulletin No. 07-11.
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 June 22, 2007 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Purpose: To provide procedures for processing claims for this second LANL SEC class.
Applicability: All staff.
1. This new addition to the SEC affects employees of the Department of Energy (DOE), its predecessor agencies, or DOE contractors or subcontractors in certain locations at the LANL from March 15, 1943 through December 31, 1975 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 new SEC designation is established for employees who were “monitored or should have been monitored” for exposure to radiological exposures while working in operational Technical Areas (TAs) with a history of radioactive material use. 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 LANL 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 LANL 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” (NIOSH, Returned without a Dose Reconstruction) in ECMS. The effective date for the code entry is July 22, 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 all LANL cases that may potentially be 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 DEEOIC will compare the NIOSH and DEEOIC lists 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 by the Policies, Regulations and Procedures Unit of the Branch of Policy.
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. Action #5 provides additional guidance on making the determination of whether the employee worked in one of the TAs with a history of radioactive material use.
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 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 a location delineated in the SEC class designation. In determining whether the employment history meets the 250 work day requirement, the CE must consider employment either solely at LANL or in combination with work days for other SEC classes. There are essentially three evidentiary categories for CE to consider when making a judgment of SEC membership in the new class:
· Employment at a Technical Area specifically identified as a location where radioactive material was present
· Personal dosimetry
· Occupation or job category that likely involved employment duties at a location or multiple locations where radioactive material was present
LANL is organized into land divisions called Technical Areas (TAs). The current convention for describing locations at LANL is TA-10-1, where 10 is the Technical Area and 1 is the building number. In total, there have been no less than 75 TAs in the LANL with several TAs currently no longer active, including TA-1 and TA-10.
NIOSH has provided a list that identifies TAs with a history of radioactive material use. All TAs found on this list are covered for purposes of assessing employment at a location that is part of the SEC class. This list is provided as Attachment 3 to this directive and is an addendum to the SEC Petition Evaluation Report (Table Addendum-2: List of TAs NIOSH has Concluded Used Radioactive Material During the Covered Period). Evidence showing employment within the perimeter of any of these TAs, including work at a building or other geographic designation within the boundary of the TA, is considered covered for purposes of the LANL SEC class.
Employees who worked exclusively at TAs 17, 28, 34, 38, 57, 64, 65, 69, 70, and 74 are specifically excluded from coverage under the SEC provision. These TAs have no known history of radioactive material use or were not operational during the evaluation period. However, the evidence of record would need to demonstrate conclusively that the employee was employed solely at one of these specific locations, did not perform job functions at other potentially covered TAs, and did not have any personalized dosimetry data.
In addition, the NIOSH website (http://www.cdc.gov/niosh/ocas/lanl.html) contains a more detailed summary of all key LANL facilities (including TAs found not to have radioactive material use and not subject to this SEC class), the type of activities that were conducted at the TAs, its operational dates and type of radioactive material use (if any).
The CE must be aware that a TA may encompass more than one building or other designated areas (such as waste storage yards or testing areas). It is also important to note that TA designations changed over time and the current list of TAs with confirmed radioactive material use is based on information available at this time. NIOSH may update its list of locations where radioactive material was present and notify DOL of any additions to the list as information becomes available.
Upon receipt of any evidence to show that the employee was monitored for radiation exposure and was employed at LANL during the SEC designated period, the CE may accept the period of monitored dose as evidence of employment at a covered TA and as qualifying for the SEC class. Since requirement standards for radiological monitoring have changed and early monitoring at LANL was limited to employees thought to have the highest potential for receiving radiation, the adjudicator cannot assume that an employee without a dosimeter badge or dosimeter record did not work at a TA with radioactive material use.
In addition to evidence placing an employee at a specific location where radioactive material was known to be present or evidence of personal dosimetry, it may be necessary for the CE to consider the occupation or job category of the employee. This is necessary as it has been confirmed that maintenance workers at LANL (predominately Zia Company contractor employees) were assigned to different TAs as needed. Absent evidence to the contrary (for instance evidence clearly indicating a maintenance worker solely assigned to TA not known to have radioactive material use), maintenance workers at LANL are considered part of this SEC class. This is true even if evidence is not present to demonstrate the specific TAs where duties occurred or evidence of personal dosimetry. The following are considered maintenance workers:
It is not necessary for the CE to ensure that the employee’s position directly matches that of one of the titles listed above, merely that the description of the employees’ position is one that can reasonably be considered “maintenance.”
For qualifying SEC class employment, it is essential that the claims examiner review the case file in its entirety, including information obtained from NIOSH during the dose reconstruction process, dosimetry records and contemporaneous medical records to determine if evidence indicates the employee worked at one of the locations involved with radioactive material use during the period from March 15, 1943 through December 31, 1975. The evidence merely needs to be of sufficient probative value to convince the adjudicator of the accuracy of the claim that the employee worked in one of the TAs with radioactive material use. The evidence does not need to rise to the level of beyond all reasonable doubt to qualify for consideration.
For example, a claim is submitted based on a deceased employee who worked as a lab technician at the LANL from August 1948 to 1952. The Department of Energy confirmed employment at the LANL for 1949 to 1951, but no evidence was found to indicate the TA(s) where the employee worked. However, employment records show the employee was issued an AEC dosimeter badge in May 1950 with an expiration date of June 1951. As such, it is reasonable to conclude that the employee worked at a TA with radioactive material given the job title (lab technician) and the existence of a dosimeter badge. Since there is no evidence to the contrary, the confirmed employment dates of 1949 to 1951 at LANL coupled with the existence of the dosimeter badge is probative evidence of 250 work days at a covered TA.
For those cases in which the adjudicator cannot determine whether the employee worked at a TA with history of radioactive material use, had no personal dosimetry, and can not be shown to be a qualifying maintenance worker, further development must occur. In terms of suggesting to claimants what type of additional evidence could be persuasive, claimants can be encouraged to submit affidavits from co-workers regarding work location and type of work performed at LANL.
LANL was also subject of a previous SEC designation for covered employees with exposure to radioactive lanthanum (RaLa) from September 1, 1944 through July 18, 1963 under Bulletin No. 07-11. As instructed in that Bulletin, those cases that were pended because the CE was unable to make an affirmative determination of RaLa exposure must now be developed for coverage under this new SEC class.
6. Once the CE has determined that the person named in the claim has a diagnosed specified cancer and meets the employment criteria of the SEC class, 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 in certain areas at LANL from March 15, 1943 through December 31, 1975. However, NIOSH has indicated that partial dose reconstructions may be possible based on components of the internal doses, external doses and occupational medical doses. Accordingly, for a case with a non-specified cancer and/or that do not meet the employment criteria of the SEC class, the CE must refer the case back to NIOSH with a new NIOSH Referral Summary Document (NRSD) to perform radiation dose reconstruction. The CE should code the case as “NI” (Sent to NIOSH for Dose Reconstruction). The status effective date is the date the Senior or Supervisory CE signature
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” (NIOSH Dose Reconstruction Received) and select the appropriate reason code. In this case, the “PD” (Partial Dose Construction, SEC) reason code would apply. The CE should not delete the “NW” (NIOSH, Returned Without a Dose Reconstruction)or “NI” (Sent to NIOSH for Dose Reconstruction) 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” (Sent to NIOSH for Dose Reconstruction)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-qualifying employment at the LANL, insufficient latency period, does not meet the 250 work day requirement, or not a specified cancer. A hard copy printout of the E-mail is to be inserted in the case file.
9. For any claim that was not already at NIOSH on July 22, 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 and the employee has/had a specified cancer, 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 LANL cases that have a recommended decision to deny. If the employee worked in one of the specified areas 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. On all accepted SEC claims, the CE must enter the “SE” (Confirmed as SEC Claim) status code in ECMS. The status effective date is the date both employment and medical criteria is met.
14. The district office operational plan goal for the specified cancer cases on the NIOSH list is to complete recommended decisions or refer the cases back to NIOSH within 60 days of the date of this Bulletin for at least 75% of the cases. All cases requiring action due to this Bulletin should be completed within 90 days.
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