Establishing Causation for Hearing Loss

and Asbestosis

 

Asbestosis: A Claims Examiner is to accept Part E causation for asbestosis once the following three criteria are satisfied.

1.  Medical: A medical diagnosis of asbestosis.

2.  Employment: The employee is a covered DOE contractor employee at a covered DOE or RECA section 5 facility and in the course of employment was exposed to asbestos while at the DOE or RECA section 5 facility.

Asbestos existed at all covered DOE and RECA section 5 facilities.  Using the Site Exposure Matrices (SEM), along with an examination of pertinent exposure data maintained in the case, a CE is to determine if there is a reasonable basis to conclude that the employee had exposure to asbestos.  Additionally, the CE should reference EEOICPA Circular 15-05, “Occupational Exposure Guidance Relating to Asbestos,” for further guidance on asbestos exposure.  If there is reason to doubt the employee’s exposure to asbestos because of the type of work performed, or other contradictory evidence, he or she is to request the following information from the claimant: 

a.    Contemporaneous medical evidence discussing the employee’s work history and exposure to asbestos at the covered facility.  The presence of pleural thickening, interstitial fibrosis, neoplasia, or other medical findings characteristic of asbestosis also helps establish the relationship between employment and exposure; 

b.    Personnel or incident records disclosing exposure to asbestos; or

c.    Persuasive affidavits from other employees, with reason to know, attesting to the employee’s asbestos exposure and other evidence such as independent studies of the facility or newspaper articles discussing asbestos exposure at the site.

Once the CE has collected all relevant exposure information, and he or she still cannot affirmatively conclude the extent or duration of employee’s exposure to asbestos, an Industrial Hygiene referral is to occur.  

3.  Exposure/Causation: Causation will be presumed when the case file contains evidence that the employee was exposed to asbestos for at least 250 aggregate workdays, and there was a latency period of at least 10 years between the start of covered DOE or RECA section 5 employment and the onset of asbestosis.

In a claim for an employee that does not meet the requirements of presumed causation because the evidence does not establish 250 days of asbestos exposure, or the latency requirement, the CE is to undertake development to obtain an opinion on causation from either the claimant’s treating physician or a Contract Medical Specialist (CMC).

 

Hearing Loss: Part E causation for hearing loss can be presumed without referral to National Office specialists if all three following conditions are satisfied:

1.  Medical: The file contains a diagnosis of bilateral sensorineural hearing loss (conductive hearing loss is not known to be linked to toxic substance exposure).

2.  Employment: The verified covered employment must be within at least one specified job category listed below


for a period of 10 consecutive years, completed prior to 1990. The labor categories are the following:

·           Boilermaker

·           Chemical Operator

·           Chemist

·           Electrician/Electrical Maintenance/Lineman

·           Electroplater/Electroplating Technician

·           Garage/Auto/Equipment Mechanic

·           Guard/Security Officer/Security Patrol Officer (i.e., firearm cleaning activities)

·           Instrument Mechanic/ Instrument Technician

·           Janitor

·           Laboratory Analyst/Aide

·           Laboratory Technician/Technologist

·           Lubricator

·           Machinist

·           Maintenance Mechanic

·           Millwright

·           Operator (most any industrial kind, the test being whether the operator position is one in which there is potential for solvent exposure)

·           Painter

·           Pipefitter

·           Printer/Reproduction clerk

·           Refrigeration Mechanic/HVAC Mechanic

·           Sheet Metal Worker

·           Utility Operator

3.  Exposure: Evidence in the file must not only establish that the employee worked within a certain job category listed above, but that the employee was concurrently exposed to at least one of the specified organic solvents listed below:

·                    Toluene

·                    Styrene

·                    Xylene

·                    Trichloroethylene

·                    Methyl Ethyl Ketone

·                    Methyl Isobutyl Ketone

·                    Ethyl Benzene

Hearing loss claims supported by rationalized medical evidence asserting a causative link between covered employment and exposure to OTHER solvents not listed in this Exhibit should be forwarded to the NO for specialist review.

 

Challenges to the DEEOIC Conditions of Acceptance.  This policy guidance represent the sole evidentiary basis a CE is to use in making a decision concerning whether it is “at least as likely as not” that an occupational exposure to a toxic substance was a significant factor in aggravating, contributing to or causing a diagnosed bilateral sensorineural hearing loss.  Claims filed for hearing loss that do not satisfy the conditions for acceptance outlined in this procedure cannot be accepted, because these standards represent the only  scientific basis for establishing work-related hearing loss due to exposure to a toxic substance. 

The CE is to undertake routine development (i.e., SEM, SEM mailbox, IH referral, etc.) on any hearing loss claim that does not meet the criteria described in this procedure, including communicating to the claimant the evidence necessary for a compensable hearing loss claim.  As part of that development, the CE is to notify the claimant of his or her ability to challenge the scientific underpinnings of the DEEOIC hearing loss policy. 

The claimant has the burden of establishing, through the submission of probative scientific evidence, that the criteria used by the program do not represent a reasonable consensus drawn from the body of available scientific data. If a claimant seeks to argue that the standard by which DEEOIC evaluates claims is not based on a correct interpretation of available scientific evidence, or that a toxic substance that is not listed as having a health effect of hearing loss exists, he or she will need to provide probative epidemiological data to support the claim.  Any claimant submission of scientific documentation, including journals, periodicals, or other literature (including citations to literature) has to relate to the topic of the correlation between hearing loss and toxic substance exposure. Scientific evidence that does not relate to or reference hearing loss is insufficient. 

With the receipt of compelling scientific data relating to a challenge to the DEEOIC conditions of acceptance for hearing loss, the CE is to prepare a referral of the documentation to the Policy Branch for examination by a Health Scientist who will respond to whether the evidence warrants a change to program policy regarding hearing loss.