EEOICPA BULLETIN NO.08-20
Issue Date: April 21, 2008
Effective Date: April 2, 2008
Expiration Date: April 2, 2009
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 workers from LLNL to be 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 and § 83.14. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On January 30, 2008, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC a class of certain employees who worked at LLNL from January 1, 1950, through December 31, 1973.
On March 3, 2008, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
Employees of the Department of Energy (DOE), its predecessor agencies, and DOE contractors or subcontractors who were monitored for radiation exposure while working at the Lawrence Livermore National Laboratory from January 1, 1950, through December 31, 1973, for a number of work days aggregating at least 250 work days 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 April 2, 2008, 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.
The new SEC class for employees of LLNL has been added because NIOSH is unable to reconstruct internal dose from fission and activation products. NIOSH has, however, also determined that it is possible to reconstruct all other internal doses. NIOSH can also reconstruct external and medical dose for LLNL workers. 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 March 3, 2008 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Purpose: To provide procedures for processing SEC claims for LLNL workers.
Applicability: All staff.
1. This class encompasses claims already denied, claims at NIOSH for dose reconstruction, pending claims, and future claims yet to be submitted.
2. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a list of cases with claimed employment at LLNL during the period of the SEC class. It includes pending cases, cases previously denied and those at NIOSH. It also includes specified and non-specified cancer cases. All cases on this comprehensive list must be reviewed by the district office(s) and by the Final Adjudication Branch (FAB) to determine whether the SEC class criteria are satisfied. This comprehensive list will be provided to the appropriate district offices and FAB under separate cover.
The comprehensive list also includes cases identified by NIOSH that should be considered for inclusion in the SEC class. 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 LLNL 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.
There are some cases on the comprehensive list that were not identified by NIOSH for potential inclusion in the SEC and consequently are still at NIOSH for a partial dose reconstruction. These cases must also be evaluated for inclusion in the SEC class in accordance with the procedures in this bulletin. If any such case qualifies under the SEC class, the CE through the Senior CE (SrCE), notifies the appropriate point of contact at NIOSH via e-mail to return dose reconstruction analysis records. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file. In addition, the CE must write a letter to the claimant to advise that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.
Once a case file is returned from NIOSH (including those cases that DEEOIC has withdrawn from NIOSH) to the district office for potential inclusion in the SEC class, the CE enters status code “NW” (NIOSH, returned without a dose reconstruction) in ECMS B. The status effective date for the code entry is April 2, 2008. However, the code is not entered until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record. The standard procedure for NIOSH coding in ECMS E is to code all additional NIOSH actions only if the “NI” (Sent to NIOSH) status code has been entered. Therefore, the CE enters the “NW” code into ECMS E with the status effective date of April 2, 2008 only if “NI” has already been coded.
If the case is still at NIOSH and does not qualify under this SEC provision, based on the guidance provided in this bulletin, then refer to instructions in Action Item #14.
3. For any cases identified 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 must first determine whether the employee has a specified cancer, as listed in the Federal (EEOICPA) Procedure Manual (PM) Chapter 2-600.5. If the employee has a specified cancer, proceed to Action Item #5. If the employee does not have a specified cancer, proceed to Action Item #8.
5. If the employee has a specified cancer, the CE must then determine if the employee was “monitored for radiation exposure while working at” LLNL for at least 250 work days between January 1, 1950 and December 31, 1973. Given the nature of the monitoring records from LLNL that are available, it is not possible to establish that an employee was monitored for 250 days by determining the particular work days on which an employee was actually monitored for radiation exposure. Therefore, the CE must review records (such as those discussed below) to determine if the employee “was monitored for radiation exposure” for 250 work days while working at LLNL at any time during the period of the SEC class (1950-1973) using the methodology set out in Action Item #6.
6. An employee who “was monitored for radiation exposure” at LLNL during the SEC period and worked at LLNL for at least 250 work days during the SEC period will be presumed to have been monitored for radiation exposure for 250 work days at LLNL during the SEC period unless there is substantial evidence to the contrary (ie. evidence demonstrating that employee was not monitored for at least 250 work days during the SEC period.) Please see EEOICPA Bulletin No. 02-09 for guidance on calculating 250 work days. As in other classes added to the SEC, the LLNL class definition provides that the 250 work day requirement can be met by combining work days at LLNL during the SEC period with work days meeting the SEC criteria of one or more other SEC classes.
If the employee has a specified cancer and “was monitored for radiation exposure” for at least 250 work days, while working at LLNL the employee should be placed in the SEC class. If the employee does not meet the 250 work day requirement, as discussed herein, proceed to Action Item #8.
definition is specific to LLNL, so this means the CE must find records showing that
the employee was monitored while working at LLNL during the SEC period.
The LLNL facility includes both the main campus in
The following two subsections provide guidance to the CE on how to make the determination of whether the employee “was monitored.” The guidance is in two parts:
A. for existing claims in which NIOSH has already collected dose information
B. for claims in which dose records have not yet been collected.
A. Existing claims for which dosimetry records have already been collected
In order to determine whether an employee, for whom NIOSH has already gathered dose records, “was monitored” while working at LLNL for at least 250 work days during the SEC period, the CE needs to review the file and locate any personal dosimetry records therein. To find personal dosimetry documentation, the CE first accesses the NIOSH CD in the file and reviews the folder entitled, “DOE information,” which is the folder for dosimetry records on the CD. The CE then reviews that file for any documentation showing the employee was monitored for radiation at LLNL. Personal dosimetry records will have the employee’s name on them. Although the NIOSH CD is the most likely location for dosimetry records in existing case files and should be checked first, if nothing is found there, the CE should review the entire case file for records of personal dosimetry. The monitoring records can reflect radiation dose from a dosimetry badge, urinalysis, whole body counting or any combination of these or other radiological monitoring unique to the individual.
Many LLNL employees traveled to nuclear weapons testing sites, most commonly the Nevada Test Site (NTS) and the Pacific Proving Ground (PPG), as part of their jobs. When these employees traveled to NTS and/or PPG they were generally monitored at those locations. Monitoring at NTS, PPG (or any other site) alone, without evidence of monitoring at LLNL, does not establish that an employee “was monitored for radiation exposure” while working at LLNL for at least 250 work days during the SEC period as required for the LLNL class. To understand how to tell the difference between monitoring while working at LLNL and being monitored while present at NTS or PPG, two attachments have been provided. Attachment 3 provides four examples of records that show an employee was monitored at LLNL. The examples provided are not all inclusive of all types of LLNL monitoring records, but rather provide a sample of the most common documents found in employee files, each of which demonstrates that the employee was “monitored for radiation exposure while working” at LLNL. The monitoring needs to refer to the period that the employee worked during the SEC class (1950-1973).
To better understand the examples in Attachment 3, note that the first example is the most common. For an employee with this record (dated 1973 or earlier) in the file, in which at least one of the boxes in the last two columns was filled in with something other than “NM” (meaning not monitored) for years within the LLNL SEC class, this record is sufficient to establish that the employee “was monitored for radiation exposure” while working at LLNL for at least 250 work days during the SEC period. In the sample included, “0.00” was entered in the last column of the first two rows. A “0.00” would indicate that although the employee was monitored, no dose was recorded. Since one of the requirements for inclusion in the class is having been monitored while working at LLNL during the years of the class, it does not matter whether the employee actually received any measured dose; those with zeroes are to be included in the class. Additionally, this first example in Attachment 3 states that the doses on the table include doses from other sites. Thus, employees who have this type of record during the SEC period meet the test of having been monitored for radiation exposure at LLNL because it represents dose at LLNL plus doses at any other locations the employee traveled to. Documents showing monitoring that only occurred elsewhere (such as all the examples in Attachment 4) do not establish that the employee was monitored for radiation exposure while working at LLNL for at least 250 work days during the SEC period.
Attachment 4 provides excerpts of monitoring records
specific to the NTS for LLNL employees. The existence of records such as
these in the case file, without any other evidence of having been monitored for
radiation exposure while working at LLNL, is not sufficient to support a
finding that the employee “was monitored for radiation exposure” while working
at LLNL for at least 250 work days during the SEC period because they pertain
solely to other locations. Generally, the best way to recognize
monitoring at a site other than LLNL in the file of a LLNL employee is to find
(often in very small type or lettering) “Bechtel Nevada,” “NTS,” or
“Reynolds Electrical & Engineering co. Inc, (REECO)” (circled on the
attachment for emphasis) written on the record. Bechtel and REECO were
the contractors for NTS, the PPG and some other weapons testing locations.
The operating contractor for LLNL (including Site 300) has always been the
Although monitoring at non-LLNL locations does not place the employee in the LLNL class, the CE should be mindful that there are classes in the SEC for employees at NTS, PPG and Amchitka and that work days at those sites can be added to the work days of an employee who otherwise qualifies for the SEC class at LLNL in order to meet the 250 work day requirement. If the CE finds evidence that the employee was at those other locations during their respective SEC class times, the CE is to develop accordingly.
B. Claims for which monitoring information has not yet been gathered
1) Existing claims. If there are existing LLNL claims that have sufficient employment at LLNL within the period of the class to meet the 250 work day requirement, but for which no dosimetry information has been collected, the CE is to write a letter to the DOE (LLNL) and request radiation monitoring documentation, using the same DOE contact person that is used for employment verification. Once DOE has provided records, or informed us that none exist, the CE determines whether the employee “was monitored for exposure to radiation” while working at LLNL, as described in subsection A of this Action Item. For those instances in which DOE reports that no monitoring records exist for the employee, the CE is to prepare the case for submission to NIOSH using the normal procedures and send a letter to the claimant(s) informing the claimant(s) that the case is being sent to NIOSH with an explanation that no evidence of the employee having been “monitored” at LLNL between 1950 and 1973 was provided.
2) New claims. For all new claims, when the Resource Center (RC) receives a claim that includes employment at LLNL with any work between January 1, 1950 and December 31, 1973, the RC is to include a letter to DOE along with the request for employment verification asking for all radiation monitoring and dose documentation pertaining to the employee available from LLNL. Once the CE receives the documentation, the decision-making process proceeds as described above.
Additionally, records which do not constitute evidence that the employee “was monitored” include records of X-rays (people receive a radiation dose from X-rays, but the record of the X-ray is not a monitoring record), general medical records, blood count records, industrial hygiene records, high explosive check lists, or the inclusion of the employee’s name in the Computerized Accident/Incident Reporting System (CAIRS) (unless the accident pertains to radiation exposure).
It is understood that there might be instances in which making the determination of whether the employee was monitored will be difficult. If the CE is unable to reach an answer after due consideration of the records, the case may be referred to National Office for a health physicist review.
7. Once the CE has determined that the employee has a diagnosed specified cancer and meets the 250 work day and radiation monitoring criteria of the LLNL class, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision.
ECMS Coding Reminder: The “SE” (Confirmed as SEC Claim) status code must be entered into ECMS B with a status effective date equal to the status effective date of the recommended decision to approve. (This is a change from previous guidance which tied the “SE” effective date to when the employment and medical criteria for SEC has been met). If the case is an E/B case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E. The SEC site code for “Lawrence Livermore National Laboratory” must be selected from the drop down menu under the “SEC/SEC Desc” field on the claim screen in ECMS B only.
8. As discussed earlier, the Secretary of HHS determined that it is not feasible for NIOSH to perform complete dose reconstructions for the class of employees who worked at LLNL from January 1, 1950, through December 31, 1973.
However, NIOSH has indicated that partial dose reconstructions are possible based on occupational medical dose, some components of the internal dose and all external doses. Accordingly, for cases that have not been submitted to NIOSH and do not meet the criteria of the LLNL SEC class, the CE must refer these cases to NIOSH with a NIOSH Referral Summary Document (NRSD) to perform dose reconstructions. These cases should be coded as “NI” (Sent to NIOSH) in ECMS B. The status effective date is the date of the Senior or Supervisory CE signature on the NRSD. “NI” should only be entered in ECMS E after toxic exposure development is complete and the CE cannot accept causation. In that case the CE creates a memorandum to file stating that toxic exposure development is complete. The CE then enters status code ‘NI’ into ECMS E with the date of the memorandum as the status effective date.
For those cases that were previously submitted to NIOSH for dose reconstruction and were returned to the district office for consideration of inclusion in this SEC class, a new NRSD is not required. If it is determined that the employee does not qualify for the SEC class, the CE, through the 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). The “NI” (Sent to NIOSH) code is input into ECMS B, effective the date of the e-mail requesting NIOSH to proceed with dose reconstruction. The e-mail should include a brief statement of why NIOSH should proceed with a dose reconstruction, e.g., non-specified cancer, no evidence of required monitoring 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. In addition, the CE is to notify the claimant by letter that the case is returned to NIOSH for dose reconstruction and the reason(s) it does not qualify for SEC class. If the case is an E/B case and toxic exposure development was previously completed with a memo to file (and appropriate NI/NW coding), the CE enters the status code “NI” into ECMS E with the status effective date of the e-mail requesting NIOSH to proceed with dose reconstruction.
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) in ECMS B 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. If the CE had previously entered “NI” in ECMS E, the “NR” and “PD” codes will also need to be entered into ECMS E. If the case is an E/B case, the Probability of Causation (PoC) must be entered into ECMS B and ECMS E (regardless of whether the NI had previously been entered).
9. If the claim includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any non-specified cancer(s) that has a dose reconstruction that resulted in a POC of 50 percent or greater, and any secondary cancers that are metastases of a compensable cancer. In these instances, the CE is to draft a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and if necessary concurrently prepare a NRSD to NIOSH for a dose reconstruction for the non-specified cancer to determine eligibility for medical benefits. The CE enters status code “SE” (Confirmed as SEC Claim) and the “NI” (Sent to NIOSH) code into ECMS B. The status effective date for the “SE” code is the date of the recommended decision to accept the specified cancer. The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD. If the case is an E/B case, the CE enters the status code “NI” (Sent to NIOSH) only after the toxic exposure development is complete and the CE cannot accept causation. In that case the CE creates a memorandum to the file stating that toxic exposure development is complete. The CE then enters status code “NI” into ECMS E with the date of the memorandum as the status effective date.
10. If there is a final decision to deny based on a POC of less than 50% and a review of the evidence of record establishes likely inclusion in the SEC class, it will need to be reopened. In the exercise of the Director’s discretionary authority over the reopening process, the Director is delegating limited authority to the four District Directors to sign Director’s Orders for reopening. This delegated authority is limited to reopenings based upon evidence that a LLNL employee meets the criteria for placement into the LLNL SEC class as discussed in this Bulletin. This delegated authority extends to any case potentially affected by this SEC class. However, if the District Director is unsure of whether the case meets the criteria for placement into the LLNL SEC class, the case should be referred to the National Office. A sample Director’s Order is provided in Attachment 5. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated. Once a Director’s Order is issued, the district office is responsible for issuing a new recommended decision.
11. For those cases which are reopened under the authority granted in this Bulletin, the District Director enters status code “MN” (NO Initiates Review for Reopening) in ECMS B with a status effective date of the effective date of this bulletin. If the District Director is also reopening Part E, the “MN” code is also input in ECMS E.
For all reopenings per this bulletin, upon completing the Director’s Order to reopen the claim, the District Director enters status code “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction. (The “MZ” status code is not necessary). The status effective date of the “MD” code is the date of the Director’s Order. If the Director’s Order reopens the Part E claim, “MD” is also input into ECMS E.
Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Directors, just as the authority to grant reopenings has been in this specific circumstance.
12. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending LLNL cases that have a recommended decision to deny. All cases on the comprehensive list identified in Action Item #2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at LLNL during the time specified, has a specified cancer, meets the 250 work day and radiation monitoring requirements, FAB is to review the case for the parameters of the SEC as specified in this Bulletin. If the criteria of the SEC are met, the FAB is to reverse the district office’s recommended decision to deny and accept the case. The CE/HR enters the status code “F6” (FAB Reversed to Accept) into ECMS B/E (as appropriate) to reflect the FAB reversal. The CE/HR enters status code “SE” (Confirmed as SEC Claim) into ECMS B with a status effective date equal to date of the final decision to approve. If the FAB is also reversing the Part E decision based on the SEC designation, the CE/HR also enters status codes “F6” and “SE” into ECMS E with a status effective date of the final decision for Part E.
If no action is required, FAB must follow the instructions specified in action item 14 below, to indicate that a review of the case was completed.
Every effort should be taken to avoid a remand of a potential SEC claim to the District Office. If FAB determines that the case cannot be approved based on the LLNL SEC designation and that re-referral to NIOSH is appropriate (see action items 5 and 8), FAB must remand the case for district office action. The correct coding for the remand is “F7” (FAB Remanded) with “OTH” (NO DO ERROR – Other) as the reason code. If decisions on Parts B and E are being remanded, the remand coding goes into ECMS B and E. The status effective date is the date of the remand.
13. The operational plan goal for the list of cases identified for review as part of this new SEC class is to complete the Part B recommended decision, return to NIOSH, or determine that no action is necessary within 45 days of the date of this Bulletin for at least 50% of the cases, and within 90 days for 95% of the cases. All cases requiring action due to this Bulletin should be completed within 120 days.
14. All cases on the DEEOIC generated list must be reviewed to determine if it qualifies under the SEC provision, including cases still at NIOSH. If after review or further development, the adjudicator determines that a case on the list does not require any action to be taken (either a new recommended decision to accept based on the SEC, a return to NIOSH, or a FAB reversal or remand), the CE/FAB HR must write a brief memo to the file that explains that the case was reviewed under this bulletin, that no additional action is necessary, and why. A case classified as not requiring any action is a case that does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction.
The CE enters status code “NA” (No Action Necessary) and then selects the appropriate reason code from the reason code drop down list. The “NA” coding is specifically tied to the SEC review list generated by DEEOIC and the “NA” code is restricted to ECMS B only because the SEC review list is derived from Part B data. For LLNL cases that are reviewed under this bulletin and require no additional action, the reason code that must be selected is “20S” (Reviewed under 08-20, LLNL SEC). Even if the case is an E/B case, the NA-20S must be coded into ECMS B only. The status effective date of the “NA” code is the date of the memo to the file stating review is complete and the CE has determined there is no further action necessary. For those instances in which further development is necessary, the “NA” code is not entered initially. The “NA” code is only entered when the CE determines, after development, that the case does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction. For those cases on the DEEOIC list that were not withdrawn from NIOSH, the CE enters the “NA-20S” code only after the CE determines that the case does not meet the SEC criteria. These cases remain at NIOSH for completion of a partial dose reconstruction.
Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-20S” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.
15. In carrying out the policy outlined in this Bulletin, personnel must understand that the comprehensive list not only provides the "to do" list of cases requiring attention, but it also serves as a means of tracking progress. As part of tracking progress, the list becomes the "pending" list and it is the goal to successfully and accurately review cases and enter appropriate ECMS coding which will result in “the case being removed from the list” (in other words, will result in an indicator for reporting purposes showing that the initial review was completed and/or that subsequent action was taken). ECMS coding is at the claim level and so the failure to input a code that will remove the case from the pending list on even one claim associated with a case, will result in the case still showing up as still pending review or action. In terms of ECMS coding, it is crucial to be thorough and precise. The most obvious example of this is the use of the “C2” (administrative closure) code. “C2” will not remove a case from the pending list; the "NA" code must be entered for each claim to which it applies after input of the “C2” code. In terms of codes that will remove cases off the pending list, any recommended decision on or after the SEC effective date will remove it and proper use of the “NA” code will remove it from the pending list. These are not the only codes that will remove cases from the pending list, but rather are provided as examples to show their importance. Any additional questions regarding proper SEC coding must be directed to the Policy Branch.
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