EEOICPA BULLETIN NO: 16-01

 

Issue Date: October 26, 2015

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Effective Date:  October 8, 2015

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Expiration Date:  October 8, 2016

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Subject: Criteria for Establishing Causation for Asthma Claims Under Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

 

Background:  Part E of the EEOICPA provides compensation for employees of Department of Energy (DOE) contractors and subcontractors for whom it is found that it is at least as likely as not that exposure to a toxic substance was a significant factor in aggravating, contributing to, or causing an illness; and it is at least as likely as not that the exposure to such toxic substance was related to employment at a covered DOE facility.  Uranium miners, millers, and ore transporters are also eligible for benefits if they develop an illness as a result of occupational exposure to a toxic substance at a facility covered under Section 5 of the Radiation Exposure Compensation Act (RECA).

 

During the adjudicatory history of the Part E program, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has developed different resources to assist in evaluating the relationship between occupational exposure to toxic substances and diseases.  As part of this effort, DEEOIC identified toxic substances with known human epidemiological health effects.  In other words, scientific evidence exists to establish that a disease has a causal connection to exposure to one or more specific toxic substances.

 

Unlike many medical conditions for which DEEOIC has health effect data, asthma is unique due to the scope of the toxic substances that have the potential for aggravation and contribution to the condition.  The history of case reviews performed by DEEOIC and current data on asthma demonstrate that any dust, vapor, fume or other airborne material has the potential to affect asthma.  Moreover, people encounter these substances in all aspects of their lives, including employees who worked at a covered DOE facility.

 

Given the unique feature of so many different toxic substances having the potential to affect asthma in an occupational setting, DEEOIC is initiating policy guidance to streamline the processing of asthma claims under the EEOICPA.  When a claimant files a claim for asthma, evidence is required to substantiate reasonably that the employee has a medical diagnosis of “occupational asthma.”  A diagnosis of “occupational asthma” can either mean a diagnosis of such by a physician, or evidence from a physician that an employee had “asthma” caused, contributed to or aggravated by an occupational exposure to a toxic substance.  Once medical evidence establishes that an employee has occupational asthma, DEEOIC is to accept that it is at least as likely as not that an exposure to a toxic substance was a significant factor in causing, contributing to or aggravating the condition.  The assigned Claims Examiner (CE) assesses the diagnosis of occupational asthma solely by review of the medical evidence.

 

Since DEEOIC will base the diagnosis and causation development of an asthma claim solely on the medical evidence to establish occupational asthma, the U.S. Department of Labor EEOICP Site Exposure Matrices (SEM) will not be utilized as a reference tool.  Therefore, asthma is no longer listed in SEM, and the DEEOIC industrial hygienist (IH) will not review asthma claims.

 

The DEEOIC will review the medical evidence of Part E asthma claims that were previously denied based on causation, and reopen them, if appropriate.

 

References: 42 U.S.C. § 7385s; 20 CFR Part 30

 

Purpose:  To provide the criteria for adjudicating Part E claims for asthma.

 

Applicability:  All Staff

 

Actions:

 

1.      When a claimant files a Part E claim for asthma or occupational asthma and evidence of record establishes the employee is a DOE contractor employee, the CE develops the claim and collects the required documentation to determine if the claim is compensable.

 

2.      The CE will accept a claim for occupational asthma, if one of the following medical criteria is met:

 

a.      Medical evidence contemporaneous with the period of covered Part E contractor or subcontractor employment demonstrates that a physician diagnosed the employee with occupational asthma, or;

 

b.      After a period of covered employment, a physician opines that an occupational exposure to toxic substances was a significant factor in causing, contributing to, or aggravating asthma.  In this scenario, the physician is required to provide a well-rationalized explanation with specific information on the mechanism for causing, contributing to, or aggravating the condition.  The strongest justification for acceptance in this type of claim is if the treating physician can identify the specific asthmatic incidents(s) that occurred while working at the covered worksite and the likely trigger.  If the treating physician’s report is vague or only contains generalized statements on the occupational connection to asthma, the CE refers the claim to a Contract Medical Consultant (CMC) for review to determine if exposure to toxic substances at the covered worksite was a significant factor in causing, contributing to, or aggravating the asthma.

 

3.      If a claimant presents a claim for asthma without providing medical evidence making an occupational correlation, the CE is to develop the claim for such medical evidence.  If the CE does not receive sufficient evidence, the CE will refer the claim to a CMC to review.  The CE is to ask whether there is any medical basis to conclude that the evidence supports a diagnosis of occupational asthma.

 

4.   For asthma claims that require a referral to a CMC, the CE prepares the referral and includes all pertinent medical records and a detailed description of the employee’s covered Part E employment.  In the referral, the CE identifies each covered worksite where the employee worked, the dates of covered employment, the labor categories in which the employee worked, and details about the jobs performed.  The CE requests the CMC to review the evidence and prepare a well-rationalized report on whether exposure to toxic substances while working at the covered worksite caused, contributed to, or aggravated the asthma.  If the CMC opines in a well-rationalized explanation that there is a correlation between the employee’s asthma and exposure to a toxic substance while working at a covered worksite, the CE accepts that the Part E causation standard is met.  If the CMC opines that there is no such correlation, the CE prepares a recommended decision to deny the claim.

 

5.   The DEEOIC will prepare a list of previously denied asthma claims based on causation.  The district office(s) or the Final Adjudication Branch (FAB) will review the claims on the list to determine if the medical evidence meets the causation guidance provided in this Bulletin.  Cases denied for reasons other than causation, such as employment or survivorship, do not fall under the guidance issued herein and are unaffected by this guidance.  The DEEOIC Policy Branch will distribute the comprehensive list to the appropriate district offices and FAB separately.

 

6.   The CEs will review the medical evidence in the case files on the comprehensive list, and follow the guidelines stated herein with regard to whether the medical evidence shows a diagnosis of occupational asthma, or whether the case needs further development.

 

7.   For cases on the comprehensive list where a diagnosis of occupational asthma is established and all other Part E criteria are met, the Director of the appropriate district office will reopen the claim.

 

8.   For cases that are reopened, the CE proceeds in the usual manner and prepares a recommended decision.

 

9.   For cases on the comprehensive list at FAB for conditions other than asthma, the designated co-located CE conducts the review of the medical evidence in the case file.  The CE prepares a memorandum to the file and states the findings of the review of the medical evidence.

 

10.  If a denied asthma claim is currently before the FAB, and the medical evidence clearly shows a diagnosis of occupational asthma in accordance with the guidance in this Bulletin, the FAB reverses the denial and accepts the claim, as long as all other Part E criteria are met.  If the case requires further development or a referral to a CMC, the FAB remands the case to the district office.  The Remand Order will direct the district office to review the case in accordance with the guidance in this Bulletin.

 

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, and District Office Mail & File Section