EEOICPA BULLETIN NO.07-24
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 the W.R. Grace facility in Erwin, TN, from January 1, 1958 through December 31, 1970.
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 at the W.R. Grace facility in Erwin, TN to add the class to the SEC.
The decision to initiate this petition occurred after the National Institute for Occupational Safety and Health (NIOSH) determined that it could not reconstruct a dose under 42 C.F.R. § 83.14. NIOSH submitted its findings to the petitioner 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) to add to the SEC employees who worked in the W.R. Grace facility in Erwin, TN from January 1, 1958 through December 31, 1970.
On June 22, 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 potential exposure to thorium while working in any of the 100 series buildings or Buildings 220, 230, 233, 234, 301 or 310 at the W.R. Grace site at Erwin, Tennessee for a number of work days aggregating at least 250 work days from January 1, 1958 through December 31, 1970, 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 a 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.
While a new SEC class has been added for employees at the W.R. Grace site, NIOSH has determined that it is possible to estimate internal exposures and external exposures from other radio-nuclides and to estimate medical dose of employees at the W.R. Grace site. This means that for claims that do not satisfy the SEC membership criteria, a partial dose reconstruction is to be performed by NIOSH.
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 SEC claims for those employed at the W.R. Grace site in Erwin, TN.
Applicability: All staff.
1. This new addition to the SEC affects employees of the W.R. Grace site in Erwin, TN who were “monitored or should have been monitored” for thorium exposures between January 1, 1958 through December 31, 1970 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.
2. NIOSH has provided two lists of employees who claimed employment at the W.R. Grace location 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 W.R. Grace 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 W.R. Grace 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 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 the W.R. Grace site in Erwin, TN between January 1, 1958 through December 31, 1970.
As part of the SEC membership designation, working in any of the 100 series buildings or Buildings 220, 230, 233, 234, 301 or 310 is necessary for establishing consideration for the SEC class. However, NIOSH in its SEC Petition Evaluation report also states:
No documentation is currently available that associates job titles and/or job assignments with specific radiological operations. Without information that associates work locations with worker job descriptions, it is impractical to narrow down the job descriptions for those who may have been potentially exposed to radioactive materials. Therefore, it is not possible to determine that any specific work group was not potentially exposed to radioactive materials or possible subsequent contamination.
Given the information presently available on the employment activities conducted at the site and the limited information available on the specific employees who would have had reason to be in the demarcated locations included in the SEC designation, it is not feasible to differentiate between workers employed at the 100 series buildings or Buildings 220, 230, 233, 234, 301 or 310 and other locations of the facility that are not part of the SEC designation. Accordingly, for consideration of SEC membership under this designation, it is merely necessary to establish that the employee worked for W.R. Grace (was an AWE employee) at its Erwin, TN facility. The CE is to assume that all employees of the plant would have had reason to enter the numbered buildings identified as part of the SEC and that all employees of the plant “were monitored or should have been monitored for potential exposure to thorium.” It is not necessary for the CE to determine the exact locations within the plant where employment activities occurred, just that the employee worked for the company at its Erin location during the SEC time frame. The aggregate period of this employment then counts towards the necessary 250 work day requirement of the SEC class.
For this determination, the CE must evaluate the totality of all information contained in the case to establish the necessary criteria of the SEC class including documentation submitted by a corporate verifier, SSA administration, affidavits, and other employment verification records.
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 at the W.R. Grace site in Erwin, TN between January 1, 1958 through December 31, 1970.
However, NIOSH has indicated that partial dose reconstructions may be possible for internal and external dosimetry for radio-nuclides other than thorium and that medical dose can also be calculated. 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 with a new NIOSH Referral Summary Document (NRSD) to perform dose reconstructions. The CE should code these cases as “NI” (Send to NIOSH). The status effective date is the date of the Senior or Supervisory CE signature on the NRSD.
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 “PD” (Partial Dose Reconstruction) reason code. The status effective date is the date the dose reconstruction is date-stamped into the District Office. The CE should not delete the “NW” (NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) 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)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 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, 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 W.R. Grace cases for the Erwin, TN location 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. 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