EEOICPA BULLETIN NO.03-17

Issue Date: March 3, 2003 ________________________________________________________________

Effective Date: February 24, 2003

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Expiration Date: March 3, 20003

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Subject: Implementation of Final Rule 20 CFR Part 30.

Background: 20 CFR Part 30, "Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended," was issued as a final rule on December 26, 2002.

This rule became effective on February 24, 2003, and applies to all claims filed on or after that date. This rule also applies to any claims that are pending on February 24, 2003.

Many portions of the rule were revised. The more substantial revisions that require actions by the CE are discussed below. Revised items that are already addressed in the Procedure Manual or other bulletins are not covered in this bulletin.

Attachment 1 summarizes the revisions made to the Final Rule 20 CFR Part 30. Notations are included for those revisions already included in the Procedure Manual or a bulletin.

Attachment 2 lists where the sections were originally published in the interim final rule compared to the final rule, as well as any additions or deletions of entire sections. Please note that additions and deletions of just part of a section are NOT on this list.

Reference: Final Rule 20 CFR Part 30; Public Laws 107-20 and 107-107.

Purpose: To address issues related to revisions made to the Final Rule 20 CFR Part 30.

Applicability: All staff.

Actions:

1. Unpaid lump-sum payments of compensation may be subject to garnishment to collect overdue alimony and child support. A request of this type is processed at the district office. The CE must ensure that the request is accompanied by a copy of the pertinent State agency or court order. If such a request is received currently, the district office should forward it to the National Office for processing. (Section 30.15(b))

2. A person filing a claim must inform OWCP of any changes to the information reported on the EE-1 or EE-2 claim forms. This is necessary since the EE/EN-15 will no longer be used. Information previously requested on the EE-15 form will now be requested on the new EE-1 and EE-2 forms (available soon). The CE should be aware of any changes to information contained on the EE-1 or EE-2 forms. Chapter 2-200, "Establishing Survivorship," will be revised to delete the need to use the EE/EN-15 forms. For claims that have been submitted, to date, on the old EE-1 and EE-2 forms, the CE must continue to send out the EE-15. The EE-15 is only unnecessary when the claim is submitted on the new EE-1 or EE-2. (Sections 30.100(c)(1) and 30.101(d)(1))

Alternative methods of establishing the requisite period of covered employment in the absence of supporting DOE data are addressed in section 30.112, which is a new section. PM Chapter 2-400, "Establishing Employment Using the EE-5 or Other Evidence," addresses many of these methods. The CE must become familiar with the content of this section.

One issue not previously addressed concerns DOE (1) certifying that it disagrees with the claimant’s employment information or (2) noting that it can neither concur nor disagree with the claimant’s employment information. The CE needs to evaluate the evidence submitted by the claimant to determine whether the claimant has established covered employment by a preponderance of the evidence. These issues will become simpler when an upcoming revision of the EE-5 form becomes available.

Another issue concerns situations where the only evidence of covered employment is an affidavit from the claimant, and DOE either disagrees with the assertion of covered employment or cannot concur or disagree with the assertion of covered employment. In this case, the language of the new regulation is stronger in suggesting that the CE may reject the claim based upon a lack of evidence of covered employment.

4. A new Section 30.114 gives additional guidance as to how evidence will be evaluated. PM Chapter 2-300, "Developing and Weighing Medical Evidence," addresses many of these types of medical evidence. Although the claimant’s evidentiary burden of proof has not been changed, this section reflects the flexible standard for considering a claimant’s medical evidence in view of the fact that there may be missing information in the record.

5. A new Section 30.212 now specifically addresses claims for cancer not based on membership in the SEC. PM Chapter 2-500, "Establishing Covered Employment with the Department of Energy," addresses many of these issues. The CE must be familiar with the content of this new section, especially with regard to whether the evidence of record supports expanding the relevant time frame for a DOE or AWE facility.

6. Sections 30.220 – 30.225 are relevant to the medical benefits available for consequential injuries of all the occupational illnesses covered under the Act. The CE must review the requirements of these sections concerning chronic silicosis (Sections 30.220 and 30.222) and uranium employees (Section 30.225). A new section 30.226 has been added to address the type of medical evidence that will be needed to establish a causal relationship between a consequential injury and a section 5 RECA illness. The requirement for all cases is that an illness, injury, impairment or disability sustained as a consequence of a covered medical condition must be established with a fully rationalized medical report by a physician that shows the relationship between the illness, injury, impairment or disability and the accepted medical condition. Further instructions regarding consequential injuries will be provided in a transmittal to be released shortly.

7. The requirement that the claimant raise a specific objection to a particular finding of fact or conclusion of law in the recommended decision is removed. FAB personnel must be aware that the claimant needs to state his/her objection to the decision. The claimant does not need to specify precisely the content of the objection in order to be considered. Also, the postmark on the claimant’s letter or the date that the written statement is received at FAB, whichever is earlier, should be used as the "filing" date with regards to the 60 day requirement to respond after the issuance of the recommended decision. PM Chapter 2-1300, "Review Process," addresses this issue and will be revised. (Sections 30.310(b), 30.311(a), 30.312 and 30.314(b))

8. It is OWCP’s policy to schedule the FAB hearing, whenever possible, at a location that is within a reasonable distance from the claimant’s residence. FAB personnel must schedule the hearing at a location that is within 200 miles (roundtrip) of the claimant’s residence. In unusual circumstances, a hearing may be scheduled at a distance greater than 200 miles roundtrip. In these cases, the claimant is reimbursed for reasonable and necessary travel expenses. PM Chapter 2-1400, "Hearings and Reviews of the Written Record," will be revised to address this issue. (Section 30.314(a))

9. The past requirement that a recommended decision is automatically affirmed if no final decision is issued within one year of receipt of the case file from the district office has been changed. The final regulation states that the recommended decision is automatically affirmed one year after the receipt of a written objection and/or request for hearing, or one year from the date of the expiration of the 60 days (for submission of objections) after the recommended decision. PM Chapter 2-1400, "Hearings and Reviews of the Written Record," Section 5 will be revised to address this issue. (Section 30.316(c))

10. The claimant may request that OWCP reopen his or her claim at any time after the FAB has issued a final decision by submitting new and material evidence of covered employment or exposure to radiation, beryllium or silica; or by identifying a material change in the probability of causation guidelines, dose reconstruction methods or an addition of a class of employees to the SEC that occurred after the FAB issued a final decision on the claim. If the Director concludes that the information submitted is material to the claim, the claim will be reopened and returned to the district office for a new determination on the merits of the claim. A specific statement was added that the Director can vacate any other (non-final) decision of FAB. The language no longer refers to a "modification order," and now simply states that a case may be "reopened." The FAB letters currently reflect this change. (Section 30.320)

12. The general restriction is removed on who may accompany a claimant during a referee examination. However, OWCP will retain the restriction for use if the person accompanying the claimant disrupts the examination and OWCP has to refer the claimant to a different physician for the requested referee examination. The CE should be aware of this change to Section 11(d) of PM Chapter 2-300, "Developing and Weighing Medical Evidence," which will be reflected in a future revision. (Section 30.411)

13. Covered employees whose sole occupational illness is beryllium sensitivity are now entitled to the same medical treatments as those with CBD. The letter that is currently sent out to the employees covered for beryllium sensitivity reflects this change. PM Chapter 2-700, "Eligibility Criteria for Beryllium Illness," will be revised to include this requirement. (Section 30.507)

14. Section 30.603 is a new section added to reflect the statutory limits on attorney fees enacted in section 3151(a)(6) of Public Law 107-107. All DEEOIC personnel must be familiar with these limits. The fee limitations shall not apply with respect to representative services that are not rendered in connection with a claim pending before OWCP.

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, Hearing Representatives, District Office Mail & File Sections

NOTE: Revisions addressed in the Procedure Manual or a bulletin are indicated.