EEOICPA BULLETIN NO. 09-06

Attention: This bulletin has been superseded and is inactive.

EEOICPA BULLETIN NO. 09-06

Issue Date: December 29, 2008

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Effective Date: December 29, 2008

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Expiration Date: December 29, 2009

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Subject: Obtaining Signed Responses on State Workers’ Compensation Claims, Lawsuits and Fraud.

Background: Before a case can be accepted under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), it is necessary to verify whether a claimant has ever filed a lawsuit or a state workers’ compensation claim related to the same illness for which compensation is being sought. In addition, it is necessary to determine whether a claimant ever pled guilty to or has been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.

Forms EE-1 (Claim for Benefits Under the EEOICPA) and EE-2 (Claim for Survivor Benefits Under the EEOICPA) were modified in 2005 to include a section requiring answers to the existence of these type of lawsuits, claims and charges. However, in cases where the claimant completed the pre-2005 Form EE-1 or Form EE-2 (which did not have these questions on the forms) there is currently no formalized procedure for requesting this information.

References: 20 C.F.R. §§ 30.505 and 30.626

Purpose: To provide procedures for collecting information on lawsuits, state workers’ compensation claims and fraud charges connected with an application for or receipt of federal or state workers’ compensation.

Applicability: All staff.

Actions:

1. In cases where the claimant submitted a pre-2005 version of Form EE-1 or Form EE-2 (version date can be found in the bottom right corner of the forms), and the case is in posture for recommended acceptance, the claimant must submit a signed response to the following questions:

• Has there been a lawsuit filed for the exposure to the same toxic substance(s) that the claim is based on under Part B and/or Part E?

• Has there been a state workers’ compensation claim filed for the same accepted medical condition(s) under Part E? (This question should be omitted if the claimant is only eligible for Part B benefits)

• Has the claimant either pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation?

2. In order to obtain this information, the claims examiner (CE) sends a development letter to the claimant. The letter must be in freeform and claim specific in regards to the exposure and medical condition(s) being considered. Standardized, routinely used letters, forms, or templates can not be used for this purpose. The development letter must note that by signing the written response, the claimant agrees to report any changes to the information provided in the response, immediately, to DEEOIC. The claimant should also be advised in the development letter that should he/she refuse to execute a signed written response to the questions, such failure or refusal may be deemed a rejection of the potential EEOICPA benefit and could result in administrative closure of the claim.

3. The CE may also call the claimant to get an initial verbal response to the questions before the issuance of the recommended decision to accept the claim. As long as the claimant confirms verbally or submits a signed response that he/she has not filed a lawsuit, state workers’ compensation claim, or pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation, the CE may proceed with issuance of the recommended decision. If the CE only receives a verbal response, the CE must document this conversation in the Telephone Management System (TMS). However, the CE must still follow up with a development letter requesting the signed response from the claimant.

4. If the CE is unable to obtain a verbal response from the claimant or the claimant responds affirmatively to any one of the questions, (either verbally or in a signed response), the CE cannot issue a recommended decision without further development and clarification. The CE must develop to determine if an offset and/or coordination of benefits is required or if the claimant is entitled to EEOICPA benefits in the case of a guilty plea or conviction on fraud charges connected with an application for workers’ compensation. If the CE is unable to obtain a verbal response from the claimant or the claimant is not responsive to the CE’s development requests for clarification, the CE must advise the claimant by letter that non compliance would result in administrative closure of the claim. As a last resort, the CE may consider administrative closure of the claim after at least two development letters.

5. A signed written response must be received from each eligible claimant before the issuance of the final decision. If a recommended decision is issued without receipt of the signed response (i.e. the CE only received verbal confirmation), it is then the responsibility of the FAB to obtain this signed response. Every effort should be taken by the FAB to obtain this signed response including calling the claimant and sending a follow up development letter. However, if the FAB is unable to obtain the signed response after 30 days from the FAB’s follow up development letter, the FAB is to remand the case to the district office for administrative closure of the claim.

6. By signing the written response or the post-2005 EE-1/ EE-2 forms, the claimant agrees to notify DEEOIC of any changes in the information provided in regards to the “lawsuit/state workers’ compensation/fraud statement.” As such, it is not necessary for the district office or the FAB to request this information again unless there is a new exposure or illness (including consequential) being accepted under EEOICPA. For instance, if the claimant has submitted a written response for asbestosis (asbestos exposure) and is now filing a new claim for beryllium illness (beryllium exposure) that is being accepted under EEOICPA, a written response regarding the new condition/exposure is required. In some cases, the claimant may have already submitted a written response but the claimant was not advised by DEEOIC to report any changes in the “lawsuit/state workers’compensation/fraud statement.” In these cases, the CE must request this information again if the written response is older than six months.

7. Regardless of the information provided by the claimant, if there is any evidence in the case file of a lawsuit, a state workers’ compensation claim, or fraud charges in connection with an application for or receipt of workers’ compensation that may impact the claimant’s EEOICPA benefits, further development must be undertaken. If the case is with the FAB and the matter could be clarified by a telephone call, the FAB should take this action. If the matter appears to be complex and would require extensive development, the case is to be remanded to the district office for further development.

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, District Office Mail & File Sections