Chapter 2-1900 Reopening Process

TABLE OF CONTENTS

Paragraph and Subject Date Trans. No.

Chapter 2-1900 Reopening Process

Table of Contents. . . . . . . . 02/16 16-02

1 Purpose and Scope. . . . . . . . 02/16 16-02

2 Authority. . . . . . . . . . . . 02/16 16-02

3 Claimant’s Explicit Request

for Reopening. . . . . . . . . 02/16 16-02

4 Claimant’s Nonspecific

Correspondence or Evidence . . 02/16 16-02

5 Reopening and Vacating

a FAB Decision. . . . . . . . 02/16 16-02

6 Reopening and Vacating a FAB

Decision Following an

Employee’s or Survivor’s Death 02/16 16-02

7 Denying a Specific Request for

Reopening . . . . . . . . . . 02/16 16-02

8 ECS Implications . . . . . . . . 02/16 16-02

Exhibit

1 Sample Director’s Order to

Reopen . . . . . . . . . . . . 02/16 16-02

2 Sample Denial of a Request for

Reopening. . . . . . . . . . . 02/16 16-02

1. Purpose and Scope. This chapter describes the process by which the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reopens claims for benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) and vacates decisions of the Final Adjudication Branch (FAB).

2. Authority. Under 20 C.F.R. § 30.320, the Director of the DEEOIC has the authority to reopen a claim and vacate a FAB decision at any time after the FAB has issued a Final Decision pursuant to 20 C.F.R. § 30.316. Also, under 20 C.F.R. § 30.320(a), the Director may vacate a FAB Remand Order. While any party to a Final Decision may submit a written request for reopening, it may also occur at the discretion of the Director of the DEEOIC for administrative reasons, due to procedural error, or a change in the law, regulations, agency policy, or any other reason at the sole discretion of the Director. If the Director initiates such a review, the National Office (NO) requests the case file from the District or FAB Office for the reopening to be handled locally or delegates the authority for the reopening to be handled at a District Office (DO) through procedural directive. The Director’s decision to reopen a claim and vacate a FAB decision is not reviewable.

The Director will delegate reopening authority by issuance of policy directives or other formal guidance that explains the extent of reopening authority conferred. In certain circumstances, the Director may delegate authority to reopening claims to the Branch Chief of the Policy Branch, the Unit Chiefs for the Policy, Regulations and Procedures Unit (PRPU), and the District Directors (DDs). For delegated reopening authority granted to the DDs, the delegation applies to Assistant District Directors (ADDs) when agreed to by a DD. The DEEOIC Director can grant reopening authority to other individuals in the program as needed. The Director retains sole reopening authority in any instance where he or she has not delegated reopening authority.

3. Claimant’s Explicit Request for Reopening. The regulations allow a claimant or a claimant’s duly authorized representative, at any time after the FAB has issued a Final Decision, to file a written request seeking reopening of a Final Decision under the EEOICPA, pursuant to 20 C.F.R. § 30.320(b). The Regulations allow that such a request may be filed:

Provided that the claimant also submits new evidence of either covered employment or exposure to a toxic substance, or identifies either a change in the Probability of Causation (PoC) guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort (SEC).

There is no limit to how many times a claimant may request a reopening. A written request for a reopening is to result in a written decision either accepting or denying the reopening.

a. Timeliness. A claimant may file a request for reopening at any time after the FAB issues a Final Decision. The Central Mail Room (CMR) is to associate incoming reopening documentation to the case record in the OWCP Imaging System (OIS). Upon review by the responsible staff person in the district office or FAB, the reopening is marked as reviewed and indexed clearly as a request for reopening.

b. Initial Review. The responsible staff person who screens the incoming reopening request in OIS is to direct the documentation to the DD responsible for the case file. Requests for reopening received in the National Office FAB (FAB-NO) are reviewed by the FAB-NO Branch Chief. The DD or FAB-NO Branch Chief is to conduct an initial review of the correspondence to determine whether the request is accompanied by new evidence, or other information, which is of a sufficiently compelling nature to warrant a reopening.

c. Referral for Reopening Action. Once initial review of a reopening request is completed, the DD or FAB-NO Branch Chief is to determine the responsible party for issuing a reopening decision. In many instances, the DD will have authority to issue a reopening decision on his or her own authority, as delegated by the Director. The FAB-NO Branch Chief, however, does not have the capacity to reopen a Final Decision. Accordingly, he or she is to decide the appropriate office to which the reopening request is referred for review. The options available to the FAB-NO Branch Chief are to refer the matter to a DD with jurisdiction over the case or refer it to the DEEOIC Director. Circumstances in which a DD can reopen a Final Decision are as follows:

(1) Employment. Newly submitted employment evidence contradicts a Final Decision that the employee did not have covered employment.

(2) Survivorship. A previously denied survivor submits new evidence to document his or her qualifying relationship to the employee. A DD may also reopen a Final Decision when a new survivor subsequently files a claim in a multiple claimant case and is determined to be eligible.

(3) Site Exposure Matrices (SEM). An update occurs to SEM or the claimant presents new factual evidence that a previously denied, closed, or unverified toxic substance exposure is newly shown to be linked to the claimed illness(es).

(4) PoC. Cases containing a Final Decision based on a PoC of 50% or less are reopened by the DD when new evidence is received that warrants a referral to the National Institute for Occupational Safety and Health (NIOSH) resulting in a revised PoC that makes the claim compensable. This most commonly occurs with claimant submission of an additional cancer claim. In those instances where a new cancer is evaluated by NIOSH and does not result in a PoC of 50% or greater, a reopening of the prior Final Decision is not necessary. The DD directs his or her staff to proceed with any additional development that may be warranted (Part E analysis for non-radiogenic toxic substances) or proceed with a recommendation to deny the new cancer claim if Part E does not apply.

(5) New Medical Evidence. New medical records or documentation is submitted, which clearly establishes a diagnosis of a medical condition or the existence of a percentage of permanent partial impairment, previously denied in a Final Decision due to insufficient medical evidence.

(6) Change in Law, Regulations or Policies. If the initial review reveals that the claimant has identified a change in the law, regulations, or policies governing the EEOICPA, the DD determines whether the nature and extent of such information satisfies the requirements of 20 C.F.R. § 30.320, and whether it is sufficient to warrant reopening.

d. Denial of Request for Reopening. If no evidence is submitted, or if the evidence submitted and/or the change in law, regulations, or policies identified by the claimant is insufficient to support a reopening, the DD issues a Denial of Request for Reopening.

e. Referral to DEEOIC Director. If the DD or FAB-NO Branch Chief cannot determine whether the evidence submitted, and/or the change in law, regulations, or policies identified by the claimant, is sufficient to warrant a reopening, or if the request presents an issue for which the Director has not delegated reopening authority, he or she is to refer the matter to the DEEOIC Director. A DD or the FAB-NO Branch Chief is to refer to the Director requests involving uniquely complex or potentially sensitive topics. In these instances, the person making the referral to the Director prepares a memorandum explaining his or her reasons for requesting the Director review the case for reopening. The memorandum is to outline the case history, the evidence of record and explain why the new evidence, or other information, is material to a potential reopening. It is important that the DD or FAB-NO Branch Chief merely identify the issue(s) requiring review. He or she is not to advocate for a particular reopening outcome, as that is the exclusive purview of the DEEOIC Director.

4. Claimant’s Non-Specific Correspondence or Evidence. Once FAB issues a Final Decision, there may arise situations where a claimant submits non-specific correspondence or evidence. Under these circumstances, it is difficult to interpret the documentation to determine if the claimant is objecting to a particular Conclusion of Law referenced in the Final Decision. To address this problem, it is necessary for the staff person responsible for the claim to contact the claimant by telephone to ascertain his or her intent to pursue an objection.

During contact with the claimant, the responsible Claims Examiner (CE) or FAB representative is to notify the claimant of his or her options, which may include reconsideration within 30 days of the Final Decision (if applicable) or evaluation under the authority granted to the Director to reopen a claim. If the claimant provides written or verbal clarification of his or her intention, the CE or FAB representative is to input a note in the Energy Compensation System (ECS) documenting clearly the information provided. Should the CE or FAB representative not reach the claimant by phone within a reasonable period (approximately 3 days), and clarification cannot be obtained by telephone, he or she will need to evaluate the evidence to determine the appropriate action to be undertaken.

a. Non-Specific Correspondence or Evidence Received Within 30 Days of a Final Decision. If attempts to clarify the intent of the claimant are not successful, and the 30-day period granted to request reconsideration has not expired, a DO FAB Manager or FAB-NO Branch Chief is to determine if a sufficient basis exists to treat the documentation as a request for reconsideration. A DO FAB Manager or FAB-NO Branch Chief can delegate this responsibility to other FAB staff persons. If it is determined that the evidence warrants a reconsideration determination, a DO FAB Manager or FAB-NO Branch Chief ensures that the matter is referred to the proper FAB staff person to record the request as a reconsideration requiring action.

b. Non-Specific Correspondence or Evidence Received After 30 Days of a Final Decision. Once the claimant’s option of requesting reconsideration expires, the claimant only has the ability to pursue reopening should he or she disagree with a Final Decision. With the receipt of non-specific correspondence after the period of reconsideration submission expires and efforts to have the claimant clarify his or her intent to request reopening are unsuccessful, the staff person in possession of the file is to coordinate with the DD with jurisdiction over the case file to determine the appropriate course of action. The DD (or his or her delegate) reviews the evidence to determine whether there is sufficient basis to warrant a reopening, and whether he or she has been delegated authority to reopen based on the case circumstance. If the DD or their delegate decides that the evidence supports taking reopening actions and possesses the authority to reopen the Final Decision, he or she proceeds to review the case for a reopening decision. If the DD does not have the requisite authority to reopen the Final Decision, or there is some other complication, he or she seeks guidance from the DEEOIC Director.

c. Non-specific Evidence That Does Not Warrant Reconsideration or Reopening. Under any circumstance where incoming correspondence does not support reconsideration or reopening, the assigned CE or FAB representative assigned to the case is responsible for uploading a memorandum to file in OIS documenting the actions taken to review the correspondence that supports taking no action.

5. Reopening and Vacating a FAB Decision. The DEEOIC Director or an individual acting under a delegated authority, reopens a Final Decision by issuing a Director’s Order.

a. Director’s Order Content. A Director’s Order contains three components.

(1) Cover Letter. The cover letter is addressed to the claimant(s) receiving the Director’s Order. It cites the authority by which a Final Decision or Remand Order is being vacated, and provides a summary of the issue under review, a clear indication of all actions taken under the Order and the reopening conclusion.

(2) Director’s Order. A Director’s Order is the written notice which provides narrative explaining the basis for reopening and vacating a FAB decision. It is divided into three parts; including: a Background section, which discusses the history of the case record leading to the Final Decision under contention; a Discussion section, which includes analysis of the evidence supporting the decided outcome; and a Conclusion (See Exhibit 1). The decision narrative is to provide descriptive explanation of the rationale supporting the reopening and the basis for vacating a FAB Final Decision or Remand. There are many reasons for reopening a Final Decision, including the receipt of new evidence, incorrect application of program policy, or content errors. In addition to including a written explanation of the reason(s) for reopening a Final Decision or Remand, a Director’s Order may provide corrective action instruction to a district or FAB office responsible for the case record.

(3) Certificate of Service. This confirms the mailing date of a Director’s Order, and lists the name and address of the intended decision recipient. A Certificate of Service is completed individually for each claimant (or his or her authorized representative) who is party to the Director’s Order. It must be dated on the date of decision mailing.

b. Reopening Multiple Claimant Claims. Under certain situations, the CE or FAB representative is to proceed with a reopening referral when a circumstance involves a change to a benefit entitlement after the issuance of a Final Decision involving multiple claimants. Each individual named in a multiple claimant Final Decision is required to be a party to any decision that addresses a benefit entitlement, even if the outcome does not necessarily change each claim. The reason for this is to ensure each filed claimant receives notification of the distribution of benefits under the claim to which he or she is a claimant. It also permits each claimant to contest any outcome to which he or she disagrees. Common reasons for reopening a prior Final Decision to multiple claimants includes the identification of a new qualifying survivor, new evidence documenting that a previously ineligible survivor now qualifies, or reallocation of lump sum compensation that was held in abeyance until the status of a non-filing survivor was determined.

c. District or FAB Offices are Responsible for Complying With Any Guidance or Instruction Provided in a Director’s Order. The issuance of a Director’s Order is at the discretion of the Director or a delegate. As the decision represents the intent of the Director to address a defect in a Final Decision, district or FAB offices are required to comply with any guidance or instruction included in a Director’s Order.

6. Reopening and Vacating a FAB Decision Following an Employee’s or Survivor’s Death. In cases where an employee or survivor dies following the issuance of a Final Decision and a new survivor files a subsequent claim, the CE takes action to administratively close the deceased individual’s claim. He or she then initiates action to adjudicate the claims for any additional new survivor(s). In some instances, during the adjudication of the claim for a new survivor, the CE may determine that a factual finding and/or Conclusion of Law in a previously issued Final Decision (i.e., covered employment, survivorship, medical diagnosis, etc.) is not accurate and affects the adjudication of the new survivor’s claim. Once FAB incorporates a factual finding and/or Conclusion of Law into a Final Decision, a CE cannot undo the decision by administratively closing it. A factual finding and/or Conclusion of Law cited in a Final Decision is legally operable until vacated by a Director’s Order issued by the Director or someone with delegated authority to do so. For example, the employee received a Final Decision that specified covered dates of employment at facility A; however, with the employee’s death, a survivor decision is now needed. Upon review, the CE finds that the employee’s employment actually occurred at facility B. Under this circumstance, the CE must obtain a reopening of the decision that was issued to the employee to allow for a correct reference to covered employment at facility B. The CE is only required to address factual findings and/or Conclusions of Law that contradict directly with the evidence necessary to proceed with a new decision. It is not necessary for the CE to obtain a Director’s Order when FAB concluded that it did not have the necessary evidence needed to arrive at a decision regarding a particular factual finding and/or Conclusion of Law.

In cases where the CE identifies a material factual finding and/or Conclusion of Law in a prior Final Decision that is now contradicted based on a new examination of case evidence, he or she is to obtain a Director’s Order vacating the Final Decision containing the erroneous factual finding and/or Conclusion of Law.

a. When issuing a Director’s Order to correct a factual finding and/or Conclusion of Law from a previously issued Final Decision, the Director or DD with authority to reopen the claim issues the decision to all the parties named in the vacated Final Decision. In the circumstance where all the parties who received the decision are deceased, the Director or the DD is to issue the Director’s Order as would normally be the case, but annotate that he or she is issuing it to the case file as an administrative function.

7. Denying a Specific Request for Reopening. A Denial of Reopening Request is a written decision issued by either the DEEOIC Director or a designated representative. The content of a denial is similar to that of a Director’s Order in that it contains a cover letter, decision notice, and Certificate of Service. Much like a Director’s Order the decision notice provides a background of the case history leading up to the decision under contention, and a discussion of the evidence or argument presented in support of a reopening. However, the decision is to provide a detailed explanation as to why the evidence presented is insufficient to warrant reopening of a Final Decision or Remand Order (Exhibit 2). The Director or designated representative responds comprehensively to each objection presented by a claimant.

a. Issuance of a Denial of Reopening Request is to be Limited to the Individual(s) Requesting Review of a Final Decision.

b. Requests to Vacate a FAB Remand Order. The DEEOIC Director is the only authority that is permitted to vacate a FAB Remand Order. A reopening review of a Remand Order will normally originate from a DD or ADD due to the identification of misapplied program policy or a challenge to FAB’s rationale for returning a case to the DO. In these scenarios, the DD or ADD is to send his or her request for a review of the Remand to the Director. The referral is to include a memorandum identifying the specific Remand Order under contention and state merely that the DD or ADD wants the Director to review the Remand for accuracy. The DD or ADD is not to advocate for any particular outcome, merely that there is a potential deficiency contained in the Remand that the Director needs to review. Upon receipt, if the Director agrees with the Remand Order, he or she will deny the request to vacate by issuing a memorandum to the requesting party. Otherwise, the Director issues a Director’s Order to vacate the Remand and return the case file to the proper office for handling.

8. ECS Implications. All reopening requests, requests to vacate FAB decisions, and decisions granting or denying such requests are to be properly documented in ECS pursuant to DEEOIC procedures.

Exhibit 1: Sample Director’s Order to Reopen

Exhibit 2: Sample Denial of a Request for Reopening