EEOICPA BULLETIN NO.05-01

Issue Date: November 23, 2004

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Effective Date: November 23, 2004

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Expiration Date: This Bulletin will expire on the effective date of the Interim Final Regulations issued pursuant to the recent amendments to EEOICPA.

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Subject: Administration of Part E of EEOICPA in the period prior to the effective date of Interim Final Regulations.

Background: The Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), 42 U.S.C. § 7384 et seq., was amended on October 28, 2004 to abolish Part D of EEOICPA, under which the Department of Energy (DOE) was required to provide assistance to DOE contractor employees (or their survivors) found to have work-related occupational illnesses as a result of exposure to a toxic substance at a DOE facility. Congress replaced Part D with a new program, called Part E, and assigned responsibility for administration of the new program, which calls for direct federal payments to claimants, to the Department of Labor (DOL). Claims previously filed under Part D have been transferred to DOL as claims under Part E. In view of the fact that thousands of claimants have been waiting for several years without final action on their claims, DEEOIC has determined to utilize the authority granted under the new amendments to EEOICPA to begin administration of Part E prior to the issuance of Interim Final Regulations. The purpose of this bulletin is to set forth guidance for administering Part E of EEOICPA during the period prior to the effective date of the Interim Final Regulations, referred to as the Preliminary Administration Period.

References: Public Law 108-375 and 20 C.F.R. §§ 30.111-30.114, 30.300-30.320, 30.400-406, 30.420-422, 30.505, and 30.700-726.

Purpose: To issue guidance for the administration of Part E of EEOICPA during the Preliminary Administration Period.

Applicability: All staff.

Actions:

1. Effective immediately, DEEOIC will begin taking action on claims under new Part E of the EEOICPA. Part E provides that claims that were filed with DOE under the previous Part D seeking DOE assistance in obtaining state workers’ compensation shall be considered claims for benefits under Part E. Once these claims are received in the district office (DO), an acknowledgement letter must be sent by the DO noting the transfer of the former Part D claim to DEEOIC.

2. During the Preliminary Administration Period DOL will also accept new claims filed on Part D claim forms that were developed by DOE, until such time as new claim forms for Part E are issued by DEEOIC.

3. The only Part E claims that will be adjudicated during the Preliminary Administration Period are claims that are “obviously compensable” where DEEOIC finds indisputable evidence of covered employment and finds a causal relationship between a claimed illness or death and exposure to a toxic substance at a DOE facility based on unambiguous medical evidence using well-recognized criteria in support of that conclusion. As a result, all part E claims will undergo initial screening to verify that they are “obviously compensable” and therefore qualified to be adjudicated during the Preliminary Administration Period. In cases lacking such indisputable and unambiguous evidence, such as those based on multiple exposures to multiple toxic substances or based upon ambiguous medical evidence, the CE must inform the claimant that adjudication of the claim will be deferred until after the effective date of the Interim Final Regulations. No denials of claims will be issued during the Preliminary Administration Period.

4. Part E provides that certain employee illnesses are presumed to qualify claimants for the benefits for which they are found to be entitled under the benefits provisions of Part E. During Phase One of the Preliminary Administration Period, claims filed by survivors concerning these illnesses will be assigned to a CE in the Special Claims Units for adjudication. The two presumptions are:

• In any case in which a determination has been made by DEEOIC that a DOE contractor employee suffered an illness covered by Part B of EEOICPA, that employee is presumed to have contracted that illness as a result of exposure to a toxic substance at a DOE facility.

• In any case in which, after Physician Panel review under former Part D, the Secretary of Energy has determined that an illness of a DOE contractor was work-related, that employee is presumed to have contracted that illness as a result of exposure to a toxic substance at a DOE facility.

Claims filed by living workers will not be assigned to a Special Claims Unit, since DEEOIC will have to take further development actions before it will be able to pay them any benefits. Instead, development of their claims will take place during Phase Two of the Preliminary Administration Period.

5. During Phase Two of the Preliminary Adjudication Period, the entitlement of claimants other than those set forth in Item 4 will be adjudicated by the CE pursuant to the standard set forth in Part E, which provides that a DOE contractor employee shall be determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility if-

(A) it is at least as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing the illness; and

(B) it is at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility.

6. Because many of the entitlement provisions of Part E will require issuance of regulations in order to implement, only certain benefit determinations will be made during the Preliminary Administration Period.

• In any case in which a claim by an eligible survivor is determined “obviously compensable,” a payment of $125,000 will be made to the eligible survivor or survivors. Determination of whether such survivor or survivors is entitled to a supplemental payment based upon wage-loss will be deferred until after the effective date of the Interim Final Regulations. Determination of any case in which an employee filed a claim and then died and a survivor claims entitlement to an election to receive either survivor benefits or benefits that the employee would have received will also be deferred until after the effective date of the Interim Final Regulations.

• In any case in which the claim of an employee is determined to be “obviously compensable,” the employee will be informed that DEEOIC has concluded the claim was filed by a covered employee and that a claimed illness was contracted as a result of exposure to a toxic substance at a DOE facility and the claimant will be awarded medical benefits. Determination of the claimant’s entitlement to monetary compensation based upon either impairment or wage-loss will be deferred until after the effective date of the Interim Final Regulations.

This “partial adjudication” of claims will not be construed as precluding entitlement to additional compensation after the effective date of the Interim Final Regulations.

7. Any decision issued on a Part E claim that cannot be fully adjudicated during the Preliminary Administration Period must clearly indicate that the claimant is only receiving a decision on a portion of their claim under Part E and must specify the extent of adjudication that has taken place and what further steps will be taken when the Interim Final Regulations take effect. Decisions on claims that are issued during the Preliminary Administration Period may require adjudication of a claimant’s entitlement under both Part B and Part E. The decisions must carefully distinguish between decisions made in regard to claims under Part B and decisions made in regard to claims under Part E, and specify whether a decision on any portion of the Part E claim is being deferred until after the effective date of the Interim Final Regulations.

8. Case development during the Preliminary Administration Period will be limited to obtaining information necessary to make the determinations specified in Item 6, except that if DEEOIC determines that an employee is a covered DOE contractor employee with a covered illness, or if it determines that a deceased employee was a covered DOE contractor employee with a covered illness whose death was causally related to that covered illness, the claimant will be requested to supply any information or evidence relevant to wage-loss or to the extent of any impairment due to the covered illness. DEEOIC will resume development of these matters expeditiously after the effective date of the Interim Final Regulations.

9. CE’s should develop claims during the Preliminary Administration Period using the development actions set out in Chapters 2-100 through 2-500 of the Federal (EEOICPA) Procedure Manual, to the extent such actions are feasible.

10. DEEOIC will adjudicate Part E claims using the entire two-step adjudicatory structure applicable to Part B claims as set out in 20 C.F.R. §§ 30.300-30.320, with recommended decisions being issued by district offices and final decisions being issued by the Final Adjudication Branch (FAB). Claimants will have the ability to request reconsideration before the FAB and/or reopening by the Director of the DEEOIC. Any final decision on a Part E claim issued by FAB must indicate that any person aggrieved by such decision may seek review of the decision by filing a petition in United States district court within 60 days of the date of such decision.

11. Consistent with the requirement for offsetting Part B compensation to reflect certain payments received for an occupational illness in 42 U.S.C. § 7385, Part E benefits must also be offset under that same section of the EEOICPA. Therefore, DEEOIC will perform these offsets and any other required adjustments to compensation using its current Part B procedures, based on the general guidelines set out in 20 C.F.R. § 30.505(b).

12. Once a Part E claim of a DOE contractor employee is accepted, medical benefits will be provided in accordance with the existing requirements for authorized medical treatment and related travel, the timely submission of bills by medical providers and reimbursement requests by beneficiaries, and the fee schedule that applies to all medical services provided for pursuant to the EEOICPA.

Disposition: Retain until superceded or incorporated into the Federal (EEOICPA) Procedure Manual

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Attachment

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