EEOICPA
BULLETIN NO.04-03
Issue Date: October 17, 2003
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Effective Date: October 17, 2003
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Expiration Date: October 17,2004
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Subject: Reopening Claims.
Background: At any time after the Final Adjudication
Branch (FAB) has issued a decision, the Director of the Division of Energy
Employees Occupational Illness Compensation (DEEOIC) is given sole discretion
to reopen a claim and/or vacate the FAB’s decision. This rule applies to all decisions issued by
the FAB.
The Director may exercise this
discretion at any time after the FAB issues a final decision (FD), or any other
type of decision. When a claim is reopened and/or a FAB decision vacated, the
Director will issue a Director’s Order that sets the FAB decision aside and
outlines the course of action required to resolve the issue(s) identified in
the Director’s Order. The Director may
reopen a claim and return it to the district office (DO) for further
development and issuance of a new recommended decision (RD). The Director may also reopen a claim and
vacate a final decision or vacate a remand order of the FAB and return the claim
file to the FAB for the issuance of a final decision. 20 CFR § 30.320 gives the
Director the unique power to conduct these actions, and the regulations make it
clear that all matters pertaining to granting a reopening and/or vacating a FAB
decision remain within the realm of the Director’s authority. Unless otherwise
authorized in this Bulletin, the DO and the FAB must comply precisely with any
and all instructions provided by the Director in the Director’s Order.
Additionally, at any time after the FAB
issues a FD a claimant may submit in writing to the Director a specific request
to reopen his or her claim. While every
specific written request for a reopening submitted by a claimant after the
issuance of the FAB’s FD will be reviewed by the Director, in most
circumstances new and compelling evidence must accompany the request in order
for the Director to grant the reopening. The submission of new evidence
regarding covered employment; exposure to radiation, beryllium or silica; a
change in the probability of causation guidelines or dose reconstruction
methods; or the addition of a class of employees to the Special Exposure Cohort
(SEC) may prompt a reopening by the Director.
If the Director deems the new evidence material to the claim, the
Director may grant the request for a reopening and either return the claim to
the DO for further development and the issuance of a new RD, or return the
claim to the FAB for the issuance of a new FD.
A new RD or FD promulgated as a result
of a reopening by the Director is subject to the adjudicatory process as
outlined in Subpart D of the governing regulations.
Reference: 20 CFR § 30.319 and 20 CFR §
30.320.
Purpose: To provide guidance on reopening claims
and/or vacating a FAB decision after the FAB has issued a decision.
Applicability: All staff.
Actions:
1.
Pursuant to 20 CFR § 30.319 a claimant has 30 days from the date on
which the FAB issues its final decision to request a reconsideration of that
final decision. 20 CFR § 30.319(b) allows the FAB to use the postmark date, if
available, as the filing date. Where the
postmark date is not available, the FAB is to use the earliest date of receipt
in any DO or FAB. Once a request for reconsideration is received in a DO or a
district FAB, it must be forwarded to the National Office (NO) FAB for review.
There is no requirement that evidence accompany the claimant’s reconsideration
request, and the FAB will consider each request on its own merits, provided
that the request is submitted within the timeframe allowed under the governing
regulations. If the FAB denies the request for reconsideration no new final
decision will be issued.
2.
Any specific request for reconsideration or other unspecific
correspondence or evidence not specifically requesting a reopening that is
filed within 30 days from the date on which the FAB issued its FD will be
treated as a potential request for reconsideration. All such correspondence and/or evidence must
be immediately forwarded to NO FAB for review. This will be program policy until further
notice (3-6 months), at which time additional guidance will be provided. Once
received in NO FAB, the specific request for reconsideration or unspecific
correspondence or evidence will be assigned to a NO FAB representative other
than the FAB FD’s author. During this
time period any specific request for reopening bypasses NO FAB review and is
sent immediately to the Director.
3. Once the specific request for
reconsideration or unspecific correspondence or evidence is received in NO FAB,
the NO FAB representative will weigh any new evidence and determine whether or
not a reconsideration of the final decision is warranted. Only specific
requests for reconsideration will automatically be treated as a request for
reconsideration. All objections will nonetheless undergo review for the
requisite evidence required for possible reconsideration. Evidence supporting
the diagnosis of a covered condition, establishing covered employment, in
support of survivorship, or other evidence showing the potential for coverage
under the Act could warrant the granting of a request for reconsideration. This evidence review and evaluation remains
at the NO FAB representative’s discretion. With regard to all specific requests
for reconsideration and all unspecific objections submitted directly by a
claimant or a claimant’s authorized representative, the claimant will be
notified whether or not his or her request will be granted or denied. Should
the NO FAB representative identify a piece of evidence material to the claim’s
outcome that warrants granting the reconsideration, the reconsideration will be
granted and the claimant notified even if such evidence is not submitted
directly by the claimant or the claimant’s authorized representative. Should
the NO FAB representative identify a piece of evidence not specifically
requesting a reconsideration that is not submitted directly by the claimant or
the claimant’s authorized representative that fails to materially impact the
outcome of the claim in question, the NO FAB will not treat this as a request
for a reconsideration. Rather, the NO FAB representative will return such
evidence to the DO with a memo explaining that the evidence is not material and
does not warrant a reconsideration of the FAB’s final decision. In order to avoid confusing the claimant, no
notice will be sent to the claimant in such instances.
4. In some instances a specific request
for reconsideration of a FAB final decision will be filed after 30 days from
the date on which the final decision was issued. If such a request is received in the DO or
district FAB it will be forwarded to the NO FAB immediately for review by a FAB
representative other than the FD’s author. If an objection is filed in excess of
30 days from the date on which the final decision was issued and specifically
requests a reconsideration of that final decision, the FAB representative will
review the request and any attached evidence.
The FAB representative will evaluate any evidence submitted with the
untimely request for reconsideration and determine whether or not that evidence
warrants review by the Director for possible reopening. When conducting such a review, the FAB
representative will look for evidence of covered employment; exposure to
radiation, beryllium or silica; a change in the probability of causation
guidelines or dose reconstruction methods; the possible addition of a class of
employees to the SEC; or any other evidence material to the outcome of the
claim. If the FAB representative
determines that the evidence is new and relevant to the claim and warrants
review by the Director, the FAB will issue a denial of request for
reconsideration to the claimant and inform the claimant that his or her file is
being forwarded to the Director for review as a possible reopening. The case
file and all documents will be forwarded to the Director for review, and the
untimely request for reconsideration will be treated as a request for a
reopening. The NO FAB Branch Chief will prepare a memorandum to the Director
outlining the issues identified for possible reopening. If the untimely request
for reconsideration is not accompanied by any new and relevant evidence that
might affect the outcome of the claim, the FAB representative will treat the
request as a late request for reconsideration and deny it outright for failing
to comply with the objection timeframe established in 20 CFR § 30.319.
5.
Every timely or untimely specific request for reconsideration of a FAB
final decision, whether received in the DO or the FAB, must be forwarded to the
NO FAB for proper review and adjudication. As noted above, a NO FAB
representative other than the FD’s author will review all late requests for
reconsideration as potential requests for a reopening and review the request
for the requisite evidence required to warrant the Director’s review.
6.
In some instances 30 days or more after the date on which the FAB issued
its final decision denying a claim, the DO or FAB will receive correspondence
regarding that decision, or evidence related to that claim, that does not
contain any specific language requesting a reconsideration or a reopening. Without exception, any correspondence or
piece of new evidence that does not specifically request a reconsideration or
reopening and is received after 30 days from the date on which the FAB issued
its final decision denying compensation will be reviewed by a NO FAB
representative other than the FD’s author. Should such unspecified
correspondence or evidence be received in the DO or the district FAB, the
office in receipt will immediately forward the case file and all documentation
to the NO FAB for review. This will not be warranted in accepted cases. The NO
FAB representative will carefully examine all correspondence and/or evidence
received to determine whether or not such correspondence and/or evidence is
material to the claim and warrants review by the Director. When reviewing such
evidence, the FAB representative will look for evidence of covered employment;
exposure to radiation, beryllium or silica; a change in the probability of
causation guidelines or dose reconstruction methods; the possible addition of a
class of employees to the SEC; or any other evidence material to the outcome of
the claim. If the FAB representative determines that the unspecified
correspondence or evidence requires the Director’s review, the FAB will send
the case file and all documentation to the NO for the Director’s review as a
request for a reopening. In those instances where the unspecified evidence is
not submitted by the claimant or fails to request any specific action and is
not material to the outcome of the claim, the FAB representative will return
such evidence to the DO with a memo explaining that the evidence does not
warrant a reconsideration of the final decision and no further action will be
taken. In order to avoid confusion, no letter will be sent to the claimant at
that time, as the FAB has determined that the clamant did not request any
specific action on his or her claim.
7. Any claimant correspondence that
specifically requests a reopening in writing at any time after the issuance of
a FAB final decision, whether received in the DO or the FAB, must be forwarded
to the NO for review by the Director, whether or not this request is
accompanied by evidence new and relevant to the case file. If the DO receives
such a specific request for reopening, the DO will forward all documents and
the claim file directly to the NO for the Director’s review. There is no need for the DO to submit such
requests to the FAB for evaluation, as only the Director is authorized to
review a request to reopen a claim and make a determination as to whether or
not such a request should be granted or denied.
If a request for a reopening is received in the FAB, the FAB will forward
all documentation and the claim file to NO for review by the Director. Under no circumstances is the FAB to make any
determination regarding the viability of a specific request for reopening, as
only the Director is granted the authority to evaluate a request for reopening
filed after the FD is issued.
8.
In certain instances the DO director may request that the Director of
DEEOIC review any kind of FAB decision.
Such a request may be made at any time after a FAB decision has been
rendered, regardless of whether the decision is a FD, a remand order, or a
reversal of the district office’s recommended decision. Should the DO district
director disagree with a FAB decision, that particular case file will be
forwarded to the Director of DEEOIC for review.
The district director will prepare a memorandum to the Director of
DEEOIC outlining his or her concerns and requesting that the Director review
the claim file. Pursuant to 20 CFR §
30.320, the Director will determine whether or not to reopen a case file by
vacating a FAB final decision. In the
case of remand orders, the Director will determine whether or not the order
should be vacated as outlined in 20 CFR § 30.320(a), as a remand order is not a
final decision and does not close a claim and require reopening.
9.
In other instances it may be necessary for the Director to initiate
review of a claim for possible reopening, even in the absence of an overt
request from any other concerned party.
In some cases, whether for administrative reasons, a change in the law,
or for any other reason at the sole discretion of the Director, it may be
necessary to reopen a claim and vacate a decision of the FAB. If the Director
initiates such a review, the NO will request the case file from the DO.
10. Once the Director has reviewed a
claim file for reopening and rendered a decision as to whether or not a
reopening is in order, the claim file in question will be forwarded to the
proper office for further handling and file maintenance. In instances where a claim is in posture for
reopening and the FAB FD must be vacated and a new FD issued, a Director’s
Order will be issued reopening the file, vacating the FD, and returning the
claim file to the FAB for the issuance of a new FD. In instances where a reopening is not required
but a FAB remand order must be vacated, a Director’s Order will be issued
vacating the FAB remand order and the claim file will be returned to the FAB
with instructions for further handling and the issuance of a new final
decision. In instances where the claim is in posture for reopening and further
development is required by the DO, a Director’s Order will be issued vacating
the FAB final decision and the claim file will be forwarded to the DO to
perform the required further development and issue a new recommended
decision. In cases where a claim is not
in posture for reopening, a denial letter will be sent from the Director to the
party requesting the reopening, and the claim file will be returned to the proper
DO for file maintenance and storage. An unfavorable decision by the Director
does not prevent a claimant or other interested party from filing subsequent
requests for reopening. In each and every instance outlined above, the proper
ECMS coding will be entered by all staff.
11.
Once the Director has decided to reopen a claim or vacate a FAB remand
order, the Director will draft a Director’s Order vacating the final decision
or remand order of the FAB and the file, depending upon the circumstances, will
be returned to either the DO or the FAB pursuant to the process outlined
above. Once the Director’s Order is
received in the DO or the FAB, it is imperative that the DO or the FAB adhere
to strict compliance with the instructions outlined by the Director. In the
case of a Director’s Order vacating a FAB remand order, under no circumstances
will the FAB deviate from the instructions in the Director’s Order. In most cases, the DO must also strictly
comply with the Director’s instructions outlined in the Director’s Order. However, district-specific knowledge of
unique development procedures that might broaden the scope of the Director’s
Order may be utilized provided the DO’s actions are in keeping with the spirit
of the Director’s Order. Should the DO or the FAB disagree with the Director’s
Order or any of the Director’s findings, such disagreement must be channeled to
the NO through the DO director or the FAB branch chief. Nonetheless, the Director will only entertain
disagreements deemed material to the potential outcome of a claim. The procedural aspect of the reopening
process remains solely in the realm of the Director’s authority as granted by
the governing regulations.
12. The reopening process, whether it
originates with the claimant, the district office, the FAB, or under the auspices
of the Director’s own discretionary authority, requires certain ECMS codes for
identification and tracking. The codes authorized under this bulletin are as
follows:
MC - The claimant requests a reopening.
The DO or FAB received a request for reopening directly from the claimant, or
an untimely request for reconsideration containing the requisite evidence
warranting further review by the Director. In this case, either the DO or the
FAB enters the MC code into ECMS. The
status effective date is the date the request was received in the DO or FAB. In
keeping with the spirit of the governing regulations, the postmark date, if
available, will be used as the date of receipt.
The DO or FAB then prepares a cover memo to the Director outlining the
facts of the case and the issue(s) at hand and forwards the case file to NO.
MQ - Reopening
request received in NO. Only NO staff
will enter this code into ECMS. When a
reopening request is received in NO from either the claimant, the DO, or the
FAB, this code is required to denote receipt of the request and to indicate
that the case file is physically present at the NO. The status effective date
will be the date of receipt of the request for a reopening in the NO.
MI - DO
director requests a reopening. Except in
the case of a FAB remand order sent to NO for a possible Director’s Order, when
the DO district director requests the Director of DEEOIC to review a claim for
possible reopening, the DO will enter the MI code into ECMS prior to forwarding
the file to the NO with a cover memo outlining the DO director’s concerns. The WS code should never be used under these
circumstances. The status effective date
will be the date of the DO director’s memo to the Director of DEEOIC.
M7 – DO director submits a FAB remand
order to NO for possible Director’s Order vacating the remand. When the DO director disagrees with a FAB
remand order, the DO director will prepare a memo outlining his or her concerns
and forward the memo and case file to the NO for review by the Director of
DEEOIC. Under no circumstances should a
WS code be utilized in this instance.
The status effective date will be the date of the DO director’s memo to
the Director of DEEOIC.
MN – NO initiates review for
reopening. Only NO staff will enter this
code into ECMS. When the Director
reviews a claim under the Director’s own initiative for either administrative
purposes, a change in the law, or for reasons within the sole discretion of the
Director, the MN code must be entered into ECMS to denote that the claim file
is in NO and on review for possible reopening and/or vacating of a FAB
decision. The status effective date will
be the date the claim file is received in NO.
MX – Claim not in posture for
reopening. Only NO staff will enter this
code in ECMS. After the Director has
reviewed the request for reopening and has determined that the claim is not
currently in posture for reopening, the NO will enter MX into ECMS to denote
the status of the review. The status
effective date will be the date of the Director’s decision to deny the request
for reopening.
MF – Claim is in posture for reopening
and must be returned to FAB for the issuance of a new final decision. Only NO staff will enter this code into
ECMS. After the Director has determined
that a claim must be reopened and a new FAB final decision must be promulgated,
the MF code will be entered to denote that a reopening has been granted and the
file returned to the FAB for the issuance of a new final decision. The status effective date will be the date of
the order granting the reopening.
MD - Claim is in posture for reopening
and must be returned to the DO for further development and the issuance of a
new recommended decision. Only NO staff
will enter this code into ECMS. After
the Director has reviewed the request for a reopening and has deemed a file in
posture for reopening and further development at the district level, the MD
code will be entered to denote that a reopening has been granted and the file
returned to the DO for further development and the issuance of a new
recommended decision. The status
effective date will be the date of the order granting the reopening.
MV – A FAB remand order must be vacated
and a new final decision must be issued.
After review of the case file and the FAB remand to the DO, the Director
has determined that the remand order was improper and must be set aside and a
new final decision issued. Only NO staff
will enter this code into ECMS. The
status effective date will be the date of the order vacating the FAB remand
order.
MZ – Receipt of Director’s Order in
DO/FAB. Once the Director’s Order and accompanying case file is received from
NO in the DO/FAB, the DO/FAB will enter the MZ code into ECMS to denote date of
receipt. The status effective date will
be the date the Director’s Order is received in the DO/FAB.
Deleting obsolete ECMS codes. With the
addition of the foregoing new ECMS codes, the following ECMS codes are now
obsolete and will be removed from ECMS effective immediately: MO; MU; and ML.
Disposition: Retain until incorporated in the Federal
(EEOICPA) Procedure Manual.
PETER M. TURCIC
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, Representatives, District Office Mail & File Sections