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 Printer-Friendly Version
[Federal Register: May 25, 2001 (Volume 66, Number 102)]
[Rules and Regulations]
[Page 28947-29003]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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Part II
Department of Labor
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Office of Workers' Compensation Programs
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20 CFR Parts 1 and 30
Performance of Functions Under This Chapter; Claims for Compensation
Under the Energy Employees Occupational Illness Compensation Program
Act; Final Rule
[[Page 28948]]
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 1 and 30
RIN 1215-AB32
Performance of Functions Under This Chapter; Claims for
Compensation Under the Energy Employees Occupational Illness
Compensation Program Act
AGENCY: Office of Workers' Compensation Programs, Employment Standards
Administration, Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: This document contains the interim final regulations governing
the administration of the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA or Act), that provides lump-sum
payments and medical benefits to covered employees and, where
applicable, survivors of such employees, of the Department of Energy
(DOE), its predecessor agencies and certain of its vendors, contractors
and subcontractors. The Act also provides for the payment of smaller
lump-sum payments and medical benefits to individuals already found
eligible for benefits under section 5 of the Radiation Exposure
Compensation Act and, where applicable, their survivors. The Department
of Labor's (DOL) Office of Workers' Compensation Programs (OWCP)
administers the adjudication of claims and payment of benefits under
the EEOICPA, with the Department of Health and Human Services (HHS)
calculating the amounts of radiation received by employees alleged to
have sustained cancer as a result of such exposure and establishing
guidelines to be followed in determining whether such cancers are at
least as likely as not related to employment. The Department of Energy
(DOE) and the Department of Justice (DOJ) are responsible for notifying
potential claimants and submitting evidence necessary for DOL's
adjudication of claims under the EEOICPA.
DATES: Effective Date: This interim final rule is effective July 24,
2001.
Compliance Dates: Affected parties do not have to comply with the
information collection requirements in Secs. 30.100, 30.101, 30.102,
30.111, 30.112, 30.206, 30.207, 30.213, 30.214, 30.216, 30.217, 30.401,
30.415, 30.416, 30.417, 30.420, 30.421, 30.505, 30.617, 30.700, 30.701
and 30.702 until the Department publishes in the Federal Register the
control numbers assigned by the Office of Management and Budget (OMB)
to these information collection requirements. Publication of the
control numbers notifies the public that OMB has approved these
information collection requirements under the Paperwork Reduction Act
of 1995.
Comments: The Department invites written comments on the interim
final rule from interested parties. Comments on the interim final rule
must be received by August 23, 2001. Written comments on collections of
information subject to the Paperwork Reduction Act must be received by
July 24, 2001.
ADDRESSES: Submit written comments on the interim final rule to Shelby
S. Hallmark, Acting Director, Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor, Room S-
3524, 200 Constitution Avenue, N.W., Washington, DC 20210.
Written comments on the collection of information requirements
should be sent to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Attention: Desk Officer for Employment
Standards Administration, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Shelby S. Hallmark, Acting Director,
Office of Workers' Compensation Programs, Employment Standards
Administration, U.S. Department of Labor, Room S-3524, 200 Constitution
Avenue, N.W., Washington, D.C. 20210, Telephone: 202-693-0036 (this is
not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. What Is the Energy Employees Occupational Illness Compensation
Program?
The Energy Employees Occupational Illness Compensation Program Act
(EEOICPA), Public Law 106-398, 114 Stat. 1654, 1654A-1231 (October 30,
2000), was enacted as Title XXXVI of the Floyd D. Spence National
Defense Authorization Act for Fiscal Year 2001. The EEOICPA established
a compensation program to provide a lump sum payment of $150,000 and
medical benefits as compensation to covered employees suffering from
designated illnesses incurred as a result of their exposure to
radiation, beryllium, or silica while in the performance of duty for
DOE and certain of its vendors, contractors and subcontractors. This
legislation also provided for payment of compensation to certain
survivors of these covered employees, as well as for payment of a
smaller lump sum ($50,000) to individuals (who would also receive
medical benefits), or their survivor(s), who were determined to be
eligible for compensation under section 5 of the Radiation Exposure
Compensation Act (42 U.S.C. 2210 note).
The EEOICPA further instructed the President to designate one or
more Federal agencies or officials to carry out the compensation
program. Pursuant to this statutory provision, the President issued
Executive Order 13179 (``Providing Compensation to America's Nuclear
Weapons Workers'') of December 7, 2000 (65 FR 77487) which assigned
primary responsibility for administering the compensation program to
DOL. This executive order also directed HHS to, among other things,
develop guidelines to assess the likelihood that an employee with
cancer developed that cancer in the performance of duty at a DOE
facility or atomic weapons facility, to establish methods for
calculating radiation dose estimates for individuals applying for
benefits under this program for whom there are inadequate records of
radiation exposure, and perform such calculations. The President's
order instructed DOE to provide DOL and HHS all relevant information to
which it may have access, and to assist in the development of claims
under the EEOICPA and state workers' compensation programs. Finally,
the executive order directed DOJ to identify and notify RECA
beneficiaries of their possible entitlement to benefits under the
EEOICPA and to assist DOL in the adjudication of those claims.
II. Issuance of Interim Final Rule
Section 3611(a) of the EEOICPA both establishes the Energy
Employees Occupational Illness Compensation Program and provides that
``[t]he President shall carry out the compensation program through one
or more Federal agencies or officials, as designated by the
President.'' Pursuant to this statutory provision, the President issued
Executive Order 13179 section 2(a)(ii) of which directed the Secretary
of Labor to ``promulgate regulations for the administration of the
Program, except for functions assigned to other agencies pursuant to
the Act or this order;'' no later than May 31, 2001. The Act further
stipulates that its provisions for both lump-sum payments and medical
benefits shall take effect ``on July 31, 2001, unless Congress
otherwise provides in an Act enacted before that date.'' The Department
believes that Congress's explicit mandate in the Act that the
provisions for both lump-sum payments and medical benefits take effect
on July 31, 2001 contemplates displacement of Administrative
[[Page 28949]]
Procedure Act (APA) notice and comment procedures and requires the
publication of an Interim Final Rule as an initial matter.
Therefore, the Department believes that the ``good cause''
exception to APA notice and comment rulemaking applies to this rule.
Under that exception, no pre-adoption procedures are required ``when
the agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefor in the rules issued) that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(B). The EEOICPA was
enacted to provide efficient, uniform and adequate compensation for
radiation, beryllium, and silica related health conditions to the
civilian men and women who, over the past 50 years, performed duties
uniquely associated with the nuclear weapons production and testing
programs of DOE and its predecessor agencies. The enactment of EEOICPA
was, in part, the result of the failure of existing state workers'
compensation programs to provide uniform and adequate compensation for
these types of occupational illnesses. DOL cannot begin to accept and
process claims under the EEOICPA until these regulations are
promulgated. The steps necessary for the usual notice and comment under
the APA could not be completed in time for the program to become
effective by July 31, 2001: approval of the notice of proposed
rulemaking by the Secretary and OMB; publication in the Federal
Register; receipt of, consideration of, and response to the comments
submitted by interested parties; modification of the proposed rules, if
appropriate; final approval by the Secretary; clearance by OMB; and
publication in the Federal Register. Moreover, completion of these
steps will further delay the implementation of the program.
Accordingly, the Department believes that under 5 U.S.C. 553(b)(B),
good cause exists for waiver of Notice of Proposed Rulemaking since
issuance of proposed rules would be impracticable and contrary to the
public interest.
While notice of proposed rulemaking is being waived, the Department
is interested in comments and advice regarding changes that should be
made to these interim rules. We will fully consider any comments on
these rules that we receive on or before August 23, 2001, and will
publish the Final Rule with any necessary changes.
III. What Are the Paperwork Requirements (Subject to the Paperwork
Reduction Act) Imposed Under EEOICPA and the Department's
Regulations, and How Are Comments Submitted?
The new collections of information contained in this rulemaking
have been submitted for review to OMB in accordance with the Paperwork
Reduction Act of 1995. No person is required to respond to a collection
of information request unless the collection of information displays a
valid OMB control number. The new information collection requirements
are in Secs. 30.100, 30.101, 30.102, 30.111, 30.112, 30.206, 30.207,
30.213, 30.214, 30.216, 30.217, 30.415, 30.416, 30.417, 30.505, 30.617
and 30.702, and they relate to information required to be submitted by
claimants, medical providers, and witnesses as part of the claims
adjudication process, as well as to information required to be
submitted by claimants in connection with the processing of bills. To
implement all but one of these new collections, the Department is
proposing to create eight new forms (see sections A through E and
sections G through I below). One new collection will be implemented
without any specific form (see section F below).
In addition, this rulemaking contains currently approved
collections of information in Secs. 30.401, 30.420, 30.421, 30.700,
30.701 and 30.702, which relate to information required to be submitted
by claimants and medical providers in connection with the processing of
bills (see OMB-1215-0055, OMB-1215-0176, and OMB-1215-0194). These
collections (Forms OWCP-1500, UB-92 and 79-1A) will be revised to
include EEOICPA respondents.
A. Employee's Claim: Form EE-1 (Secs. 30.100 and 30.102)
Summary: The claims adjudication process for employees begins with
a requirement that they file a written claim for benefits with the
Department on or after July 31, 2001. Employees do not need to use the
``Claim For Benefits Under Energy Employees Occupational Illness
Compensation Program Act'' (Form EE-1) to initiate this process since
any written communication that requests benefits under the EEOICPA will
be considered a claim. They will, however, be required to submit a Form
EE-1 to insure that OWCP has the basic factual information necessary to
begin adjudicating the claim. In Form EE-1, the employee is requested
to provide information with respect to his or her identity, contact
information, the type of illness being claimed (with date of
diagnosis), the location or type of employment, whether he or she is a
member of the Special Exposure Cohort, and whether he or she received
an award letter under the Radiation Exposure Compensation Act (42
U.S.C. 2210 note) or filed a lawsuit regarding the claimed illness.
OWCP may also require employees to provide factual information in
support of any responses made on Form EE-1. All employees will be
required to swear or affirm that the information provided on the Form
EE-1 is true.
Need: Pursuant to the EEOICPA, a claim for benefits is necessary to
both initiate the claims adjudication process and to establish a
commencement date for any possible entitlement to medical benefits.
Respondents and proposed frequency of response: It is estimated
that 43,140 employees annually will file one Form EE-1.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE-1 is estimated to take an average of
15 minutes per employee for a total annual burden of 10,785 hours.
B. Survivor's Claim: Form EE-2 (Secs. 30.101 and 30.102)
Summary: The claims adjudication process for survivors begins with
a requirement that they file a written claim for survivor benefits with
the Department on or after July 31, 2001. Survivors do not need to use
the ``Claim For Survivors Benefits Under Energy Employees Occupational
Illness Compensation Program Act'' (Form EE-2) to initiate this process
since any written communication that requests benefits under the
EEOICPA will be considered a claim. They will, however, be required to
submit Form EE-2 to insure that OWCP has the basic factual information
necessary to begin adjudicating the claim. In Form EE-2, the survivor
is asked to provide information with respect to both his or her
identity and the identity of the deceased employee, contact
information, the type of illness being claimed (with date of
diagnosis), the location or type of employment, whether the deceased
employee was a member of the Special Exposure Cohort, and whether he or
she (or the deceased employee) received an award letter under the
Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or filed a
lawsuit regarding the claimed illness. OWCP may also require survivors
to provide factual information
[[Page 28950]]
in support of any responses made on Form EE-2. All survivors will be
required to swear or affirm that the information provided on the Form
EE-2 is true.
Need: Pursuant to the EEOICPA, a claim for survivor's benefits is
necessary to initiate the claims adjudication process.
Respondents and proposed frequency of response: It is estimated
that 28,760 survivors annually will file one Form EE-2.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE-2 is estimated to take an average of
15 minutes per survivor for a total annual burden of 7,190 hours.
C. Employment History: Form EE-3 (Secs. 30.102, 30.111, 30.112, 30.206,
30.213 and 30.216)
Summary: Employees and/or survivors claiming benefits under the
EEOICPA must establish, among other things, an employment history that
includes at least one period of covered employment. Form EE-3 has been
devised to elicit the basic factual information necessary to enable
OWCP to make this particular finding of fact. In Form EE-3, the
respondent (the employee or survivor) is asked to provide information
with respect to his or her identity and contact information, the
employee's identity, and the employee's complete employment history
that includes dates of employment, the name and location of employers,
position titles and descriptions of work performed, and information
regarding any dosimetry badges worn. All respondents will be required
to swear or affirm that the information provided on the Form EE-3 is
true. Further, the employment history provided on Form EE-3 will be
provided to DOE for verification.
Need: Documentation of a history of covered employment is one of
the elements that must be met to establish entitlement to benefits
under the EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 68,584 employees and/or survivors annually will file one Form EE-
3.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE-3 is estimated to take an average of 1
hour per response for a total annual burden of 68,584 hours.
D. Employment History Affidavit: Form EE-4 (Secs. 30.102, 30.111,
30.112, 30.206, 30.213 and 30.216)
Summary: As noted in section C above, employees and/or survivors
claiming benefits under the EEOICPA must establish, among other things,
an employment history that includes at least one period of covered
employment. In situations where the use of Form EE-3 may not be
practicable (e.g., due to a lack of available information), Form EE-4
may be used as an alternate method to provide OWCP with a basic
employment history by affidavit. In Form EE-4, the respondent (someone
other than the employee or survivor) is asked to provide information as
to his or her identity and relationship to the employee, the employee's
identity, and the employee's employment history that includes dates of
employment, name and location of employers, descriptions of work
performed, and an explanation of the basis for the employment history
provided. All respondents will be required to swear or affirm that the
factual information provided on the Form EE-4 is true. Further, the
employment history provided on Form EE-4 will be provided to DOE for
verification.
Need: Documentation of a history of covered employment is one of
the elements that must be met to establish entitlement to benefits
under the EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 17,146 respondents annually will file one Form EE-4.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE-4 is estimated to take an average of
30 minutes per response for a total annual burden of 8,573 hours.
E. Medical Requirements: Form EE-7 (Secs. 30.102, 30.207, 30.214,
30.217, 30.415, 30.416 and 30.417)
Summary: Employees and/or survivors claiming benefits under the
EEOICPA (except for those who have received an award under section 5 of
the Radiation Exposure Compensation Act (42 U.S.C. 2210 note)) must
also establish, among other things, that the employee sustained a
compensable occupational illness. Form EE-7 has been devised to elicit
the type of medical evidence (prepared by medical providers) needed to
enable OWCP to make this particular finding of fact. Claimants may also
be required to submit additional medical evidence (prepared by medical
providers) as necessary. Form EE-7 describes, in checklist format, both
the general and specific requirements for medical evidence submitted in
support of a claim for each of the occupational illnesses covered by
the EEOICPA.
Need: Documentation of a covered occupational illness is one of the
elements that must be met to establish entitlement to benefits under
the EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 68,584 respondents annually will file one response to Form EE-7.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each collection of this information is estimated to
take an average of 15 minutes per response for a total annual burden of
17,146 hours.
F. Supplemental Medical Evidence (Sec. 30.214)
Summary: Employees and/or survivors claiming that an injury,
illness or disability was sustained as a consequence of a covered
cancer must submit a narrative medical report from a medical provider
which shows a causal relationship between the claimed injury, illness
or disability and the covered cancer. A standardized form or format
will not be used for the submission of this information, which will be
collected on an as-needed basis.
Need: Documentation of a consequential injury is one of the
elements that must be met to establish entitlement to benefits for such
a condition under the EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 4,500 respondents annually will submit this collection of
information once.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each collection of this information is estimated to
take an average of 15 minutes per response for a total annual burden of
1,125 hours.
G. Pre-payment Affidavit: Form EE/EN-15 (Secs. 30.505 and 30.617)
Summary: Once the claims adjudication process has been completed
and a final decision finding coverage under the EEOICPA has been made,
the claimant must still provide information to determine if he or she
is entitled to receive a lump-sum payment, and if so, the amount of
such lump-sum payment. In Form EE/EN-15, the claimant is requested to
provide
[[Page 28951]]
information about any tort suits they may have filed against a
beryllium vendor or atomic weapons employer, and whether they have been
convicted on fraud charges in connection with the EEOICPA or another
federal or state workers' compensation law. Form EE/EN-15 also requests
information on third party settlements, other eligible survivors and
corrections. All respondents will be required to certify that the
information provided on Form EE/EN-15 is true.
Need: Documentation of entitlement to a lump-sum payment and the
level of any such payment is required under the EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 10,926 employees and/or survivors annually will file one Form EE/
EN-15.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE/EN-15 is estimated to take an average
of 40 minutes per response for a total annual burden of 7,284 hours.
H. Acceptance of Payment: Form EE/EN-20 (Secs. 30.505 and 30.617)
Summary: After Form EE/EN-15 is returned (and a determination that
the claimant is entitled to a lump-sum payment is made and the amount
of such entitlement has been calculated), the claimant will be informed
of the award payable under the EEOICPA and that his or her acceptance
of such payment will be in full satisfaction of all claims arising out
of an occupational illness covered by the EEOICPA. The ``Acceptance of
Payment'' (Form EE/EN-20) has been devised for this purpose, and
requests that the claimant indicate whether he or she accepts or
rejects the offered payment within 60 days.
Need: Documentation of a claimant's acceptance of a lump-sum
payment is necessary to establish the full satisfaction of all claims
arising out of an occupational illness covered by the EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 10,926 employees and/or survivors annually will file one Form EE/
EN-20.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE/EN-20 is estimated to take an average
of 5 minutes per response for a total annual burden of 911 hours.
I. Medical Reimbursement: Form EE-915 (Sec. 30.702)
Summary: Once a claim has been accepted, the Department will pay
medical benefits retroactive to the date the claim was filed. The
``Claim For Medical Reimbursement Under Energy Employees Occupational
Illness Compensation Program Act'' (Form EE-915) has been devised to
enable claimants to seek reimbursement for out-of-pocket expenses
pertaining to the medical treatment, prescription medication, and
medical supplies obtained due to an accepted occupational illness or
consequential injury.
Need: Documentation of a claimant's out-of-pocket expenses is
necessary to establish the amount that is payable as medical benefits
for an occupational illness or consequential injury covered by the
EEOICPA.
Respondents and proposed frequency of response: It is estimated
that 5,095 respondents annually will file four Forms EE-915.
Estimated total annual burden: The time required to review
instructions, search existing data sources, gather the data needed, and
complete and review each Form EE-915 is estimated to take an average of
15 minutes per response for a total annual burden of 5,096 hours.
Total public burden: The above information collections have a total
public burden hour estimate of 126,693. Using the current National
minimum wage of $5.15 per hour, the total annual public cost estimate
for all new information collections is estimated to be $652,469.00.
There are no recordkeeping or collection costs associated with the
information collected on the EE-1, EE-2, EE-3, EE-4, EE/EN-15, EE/EN-20
or EE-915. Because the medical information requested by the other two
information collections is kept as a usual and customary business
practice, there is no additional recordkeeping or collection cost
associated with those collections. The only operation and maintenance
cost will be for postage and mailing. An estimated 50% of the EE-1 and
EE-2 forms will involve postage and mailing costs; the remainder will
be received directly by either DOL or DOE personnel. The EE-3 form
always accompanies the EE-1 or EE-2, therefore no additional postage or
mailing is required. An estimated annual total of 167,612 mailed
responses at $0.34 (postage) + $0.03 (envelope) per response would be
$62,016.44.
Request for comments: The public is invited to provide comments on
the above-noted new information collection requirements so that the
Department may:
(1) Evaluate whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimates of the burdens
of the collections of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to
be collected; and
(4) Minimize the burden of the collections of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Send comments regarding this burden estimate, or any other aspect
of this new collection of information, including suggestions for
reducing this burden, to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Attention: Desk Officer for
Employment Standards Administration, Washington, DC 20503 no later than
July 24, 2001.
IV. What Matters Do the Regulations Address?
Congress, in enacting the EEOICPA, created a new Energy Employees
Occupational Illness Compensation Program to ensure an efficient,
uniform, and adequate compensation system for certain employees of DOE,
its vendors, contractors, and subcontractors, who contracted beryllium,
silica, and radiation related health conditions as a result of their
employment in the development of nuclear weapons. These regulations
describe the process that DOL will use so that these employees, and,
when applicable, their survivors, will receive the benefits provided by
the EEOICPA in the efficient and uniform manner intended by Congress.
The following discussion describes the regulations that will appear as
20 CFR parts 1 and 30.
20 CFR Part 1
This part is substantially the same as current part 1 (Secs. 1.1
through 1.6), with the exception of the updated list of assigned
functions contained in Sec. 1.2, and is reprinted in full for the ease
of the reader. This updated list of functions reflects that the
Assistant Secretary for Employment Standards
[[Page 28952]]
has assigned the Department's responsibilities under the EEOICPA and
E.O. 13179 to the Deputy Assistant Secretary for Workers' Compensation
Programs.
20 CFR Part 30
Subpart A--General Provisions
This subpart briefly describes the types of benefits available
under the EEOICPA and provides a summary of how the Department's
regulations under the Act are organized. It also describes the effect
of other general criminal and civil provisions on the EEOICPA claims
process.
Introduction
Sections 30.1 and 30.2 briefly describe how the tasks involved in
administering the EEOICPA have been assigned, both within the
Department and among the Secretaries of Labor, Health and Human
Services, and Energy, and the Attorney General, while Sec. 30.3
summarizes how the regulations in this part are organized by subject
area.
Definitions
This section of the regulation defines the principal terms used in
this part. It includes terms specifically defined in the EEOICPA that,
for the convenience of the user of this part, are repeated in this
section. The Department seeks comments on all of the definitions used
in the regulation, including, in particular, those addressed in the
following paragraphs.
The Sec. 30.5(g) definition of benefit or compensation includes the
money DOL pays to or on behalf of a claimant as well as any other
amounts paid for such things as medical treatment, monitoring,
examinations, services and supplies and the transportation and other
expenses incurred in securing such medical treatment. This section also
distinguishes the meaning of the term ``compensation'' as it is used in
EEOICPA section 3628(a)(1)--the $150,000 lump sum payment--and as it is
used in EEOICPA section 3630(a)--the $50,000 lump sum payment to
covered employees or their survivor(s) under section 5 of the RECA.
EEOICPA section 3630(a) describes a covered uranium employee as
``an individual who receives, or has received, $100,000 under section 5
of the RECA for a claim made under that Act.'' Because either an
eligible employee or that eligible employee's survivor(s) may receive
$100,000 under section 5 of the RECA, interpreting the word
``individual'' in the section 3630(a) definition of ``covered uranium
employee'' as either an employee or that employee's survivor(s) results
in having to award $50,000 to the survivor of a deceased survivor. This
would create a result that does not appear to have been intended by
Congress and is inconsistent with the definitions of covered beryllium
employees, covered employees with cancer, and covered employees with
chronic silicosis under the EEOICPA. These definitions of covered
employee include only persons who are or were employees, they do not
include survivors as covered employees. Such an overly literal
definition of ``covered uranium employee'' in the EEOICPA is
inconsistent with the purpose of the EEOICPA ``to provide for timely,
uniform, and adequate compensation of covered employees and, where
applicable, survivors of such employees suffering from illnesses
incurred by such employees in the performance of duty * * *.'' (see
EEOICPA section 3611(b)). Furthermore, the conference report on the
EEOICPA also notes that section 3630 establishes ``an additional
entitlement for certain uranium miners, millers, and transporters, or
the survivor of any such employee if the employee is deceased, who
receives, or has received, payment of a claim under the Radiation
Exposure Compensation Act (42 U.S.C. 2210 note).'' H.R. Conf. Rep. No.
96-945, at 982 (2000). To avoid compensation of survivors of survivors,
the Department has defined a ``covered uranium employee'' as an
employee who has been determined to be entitled to compensation under
section 5 of the Radiation Exposure Compensation Act, as amended, (42
U.S.C. 2210 note) for a claim made under that Act.
The EEOICPA does not define disability but uses that term in
section 3628(a) as a qualification for entitlement to the $150,000 lump
sum payment. While other federally administered workers' compensation
programs define ``disability'' to require a claimant to establish a
loss of wage earning capacity or permanent impairment, it is clear from
Congress' description of this compensation program in EEOICPA section
3611(b), that an employee need only establish, to OWCP's satisfaction,
that he or she has or has had one of the covered occupational
illnesses, without establishing a loss of wage earning capacity or
permanent impairment as a result of that illness. The definition of
``disability'' in Sec. 30.5(w) reflects this Congressional intent.
The EEOICPA defines survivor as any individual or individuals
entitled to compensation under the survivor provisions of the Federal
Employees' Compensation Act (FECA), 5 U.S.C. 8133. Therefore, the
definition of survivor in Sec. 30.5(dd) identifies those individuals
who would qualify as survivors of a deceased covered employee under
section 8133 of the FECA. A significant feature of the FECA survivor
provision is the limitation that the list of eligible individuals does
not include a child over the age of 18 unless that child is a
``student'' as defined in section 8101(17) of the FECA, or is incapable
of self-support. Similarly, non-dependent parents, siblings,
grandparents and grandchildren do not qualify as survivors.
Information in Program Records
Sections 30.10 and 30.11 describe the Privacy Act system of records
entitled DOL/ESA-49 that covers all OWCP records relating to claims
filed under the EEOICPA. This system of records is both maintained by
and under the control of OWCP. The records contained in DOL/ESA-49 are
considered confidential and may not be disclosed except as provided by
the Privacy Act of 1974. Section 30.12 describes the process that must
be used to either obtain copies of or amend records contained in DOL/
ESA-49.
Rights and Penalties
Section 30.16 makes reference to some of the criminal and civil
proceedings that can result from filing a fraudulent or false claim or
statement with OWCP in connection with a claim under the EEOICPA, and
notes that the Department of Justice has the sole authority to initiate
criminal proceedings. Section 30.17 sets out the Act's statutory
requirement for permanent forfeiture of all benefits whenever a
claimant defrauds the federal government in connection with a claim
under the EEOICPA or any other federal or state workers' compensation
law.
Subpart B--Filing Claims; Evidence and Burden of Proof; Special
Procedures for Certain Cancer Claims
This subpart describes the early steps in OWCP's claims
adjudication process and includes a general description of the evidence
an employee or survivor must submit to meet his or her burden of proof.
It also explains the special procedures used in the early adjudication
of claims for cancer that do not involve members of the Special
Exposure Cohort, which includes HHS's responsibility for calculating a
reconstructed dose.
Claims for Occupational Illness--Employee or Survivor's Actions
Section 30.100 describes how an employee can file (or withdraw) a
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written claim for benefits under the Act, and explains the three
alternate methods that can be used to ``file'' such a claim for the
purpose of establishing a commencement date for any possible
entitlement to medical benefits should the claim ultimately be approved
by OWCP. Since an employee's possible entitlement to any medical
benefits under the Act commences on the date the written claim is
filed, OWCP will choose the earliest filing date from among the three
alternate methods--the date the claim is mailed to OWCP (as determined
by postmark), the date the claim is actually received by OWCP, or the
date the claim is actually received by DOE. Section 30.101 addresses
these same topics in the context of claims of survivors.
Although use of the claim forms that appear in the list of forms
contained in Sec. 30.102 is not required to file a claim (a simple
letter that contains words of claim is legally sufficient), claims
should be filed using OWCP's official claim forms to ensure that all
information necessary for the early stages of the claims adjudication
process has been submitted. Form EE-1 (for an employee claiming for his
or her own occupational illness) and Form EE-2 (for a survivor of such
a deceased employee) are provided for these purposes.
Claims for Occupational Illness--Actions of DOE
In light of the broad range of employment situations that could
lead to an exposure that might result in an occupational illness
compensable under the Act, the Department has decided to seek the type
of basic factual information that an employer would otherwise provide
to OWCP from DOE. Therefore, Sec. 30.105 indicates that DOE will have
the responsibility to either concur or disagree (or indicate that it
lacks sufficient information to either concur or disagree) with the
employment history submitted by the employee in support of his or her
claim. DOE will also be responsible for helping employees establish,
through alternate methods, the necessary factual basis to support their
employment histories when the usual documentary evidence is not
available. Section 30.106 addresses these same DOE responsibilities in
the context of claims of survivors.
Evidence and Burden of Proof
Section 30.110 lists the four classes of individuals who are
entitled to compensation under sections 3623, 3627 and 3630 of the
EEOICPA, and Sec. 30.111 describes the burden of proof on these
individuals to establish their entitlement to benefits under the Act.
While every claimant must establish eligibility by a preponderance of
the evidence, section 30.111(c) permits the use of written affidavits
or declarations as evidence of employment history or survivor
relationship where the claimant attests that actual records on these
matters do not exist. DOL further assists claimants in the development
of their claims by notifying the claimant of any deficiency and
providing an opportunity for correction of the deficiency (section
30.111(b)).
Special Procedures for Certain Cancer Claims
E.O. 13179 assigns the ``primary responsibility for administering''
the compensation program to the Secretary of Labor. However, a portion
of the adjudication process of claims for cancer that do not involve
employees who are members of the Special Exposure Cohort (or a survivor
of such an employee) is assigned to HHS. Accordingly, Sec. 30.115
indicates that if OWCP determines that such an employee (or a survivor
of such an employee) has established that he or she contracted cancer
after beginning covered employment, OWCP will refer the claim to HHS
for dose reconstruction. This package will include, among other things,
any employment history compiled by OWCP. It will not, however,
constitute a recommended or final decision by OWCP on the claim.
After completing such further development of the employment history
as it may deem necessary, HHS will reconstruct the radiation dose and
notify the claimant directly of its findings. At the same time, HHS
will also inform OWCP of its findings regarding the radiation dose, at
which point OWCP will resume adjudication of the claim (based on the
reconstructed dose calculated by HHS) and determine whether the
claimant has met the eligibility criteria set forth in subpart C.
Subpart C--Eligibility Criteria
Eligibility Criteria for Claims Relating to Covered Beryllium
Illness
Section 30.205 describes the criteria, set forth in sections
3621(7) and 3621(8) of the EEOICPA, that a claimant must satisfy to
qualify for compensation for a covered beryllium illness--that he or
she was (or is a survivor of) a ``covered beryllium employee'' who has
a covered beryllium illness. Consistent with other federally
administered workers' compensation laws, this section also provides
compensation (medical benefits only) for any injury, illness,
impairment, or disability sustained as a consequence of a covered
beryllium illness.
To establish the status as a ``covered beryllium employee,'' a
claimant may submit any trustworthy contemporaneous record that
establishes proof of employment or presence at a covered facility
during a period when beryllium dust, particles or vapor was present
(Sec. 30.206(a)). Section 30.206(b) describes the type of records that
may be considered as evidence of employment or presence at a covered
facility. Section 30.207 describes the type of medical evidence
required to establish beryllium sensitivity and chronic beryllium
disease as set forth in sections 3621(8) and 3621(13) of the EEOICPA,
and explains the claimant's burden in establishing a consequential
injury or illness.
Eligibility Criteria for Claims Relating to Cancer
Section 30.210 describes the two types of employees with cancer for
whom the EEOICPA provides compensation. To be eligible for compensation
for cancer, an employee either must be: (1) A member of the Special
Exposure Cohort (SEC) who was a DOE employee, a DOE contractor
employee, or an atomic weapons employee who contracted a specified
cancer after beginning such employment; or (2) a DOE employee, a DOE
contractor employee, or an atomic weapons employee who contracted
cancer (that has been determined, pursuant to guidelines promulgated by
HHS, ``to be at least as likely as not related to such employment''),
after beginning such employment. Consistent with other federally
administered workers' compensation laws, this section also provides
compensation (medical benefits only) for any injury, illness,
impairment, or disability sustained as a consequence of a covered
cancer.
Section 30.213(a) describes the criteria set out in section
3621(14) of the EEOICPA for establishing eligibility as a member of the
SEC. To satisfy the EEOICPA requirement that an eligible employee must
have worked at a designated gaseous diffusion plant for a number of
workdays aggregating at least 250 workdays before February 1, 1992,
Sec. 30.213(b) allows the claimant to aggregate the days of service at
more than one gaseous diffusion plant. Section 30.213(c) describes the
type of evidence a claimant may submit to establish his employment with
a covered employer under this section. A written medical report that
includes a
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diagnosis and the date of diagnosis is sufficient to establish either a
specified cancer, in the case of SEC members, or cancer for other
covered employees, under Sec. 30.214(a). Section 30.214(b) describes
the medical evidence required to establish an injury or disease that
occurs as a consequence of a covered cancer.
Eligibility Criteria for Chronic Silicosis
Section 30.215 sets forth the EEOICPA section 3627 requirements for
entitlement to compensation for chronic silicosis. To be eligible for
benefits, the employee must establish employment with the DOE or with a
DOE contractor and presence for a number of work days aggregating at
least 250 work days during the mining of tunnels at a DOE facility
located in Nevada or Alaska, which were used for atomic weapon tests or
experiments. Section 30.216(c) allows the claimant to aggregate the
days of service at more than one qualifying site. The employee must
have been diagnosed with chronic silicosis, supported by medical
evidence set forth in Sec. 30.217.
Eligibility of Certain Uranium Employees
Section 30.220 describes how beneficiaries of $100,000 under
section 5 of the RECA establish entitlement to an additional $50,000
and medical benefits provided by section 3630 of the EEOICPA. Since
RECA claimants may receive payment under RECA in the form of a promise
to pay at a future date, the Department has interpreted the requirement
in section 3630 of the Act that a claimant ``receives or has received
$100,000'' under RECA to include claimants who receive or have received
a promise of subsequent payment.
Subpart D--Adjudicatory Process
This subpart describes the adjudicatory process OWCP will follow
when it issues decisions on claims under the Act. It contains
information about filing objections following a recommended decision
and requesting a hearing before OWCP's Final Adjudication Branch (FAB),
and describes the manner in which the FAB will issue decisions on
claims after a hearing, a review of the written record, or on a summary
basis. This subpart also indicates when decisions of the FAB will
become final, and describes the process whereby OWCP may exercise its
discretion to modify a final decision, either on its own motion or upon
the motion of a claimant.
Recommended Decisions on Claims
Sections 30.305 through 30.307 contain a basic description of a
``recommended'' decision on a claim, which will contain both findings
of fact and conclusions of law, as appropriate. These sections also
describe the general process OWCP will use when it issues a recommended
decision, and indicate to whom OWCP will send the recommended decision.
It is important to recognize that a recommended decision does not
constitute a final decision by OWCP on a claim; instead, it only
represents an initial recommendation made by an OWCP claims examiner.
Therefore, since a recommended decision will not be OWCP's final
decision on a claim under the EEOICPA, a claimant may not seek review
of such decision in federal court.
Hearings and Final Decisions on Claims
Section 30.310 indicates that when the district office issues a
recommended decision on a claim, it will also forward the record of
such claim to the FAB, whether the recommended decision was favorable
or unfavorable to the claimant. Within 60 days of the date the district
office issues the recommended decision (unless this period is extended
by the FAB), the claimant must object to specific findings of fact and/
or conclusions of law contained in the recommended decision to trigger
either a hearing (upon specific request) or a review of the written
record by the FAB. In the absence of any specific objections,
Sec. 30.311(a) provides that the FAB will summarily affirm the
recommended decision without conducting any further review of such
decision. The Department believes that bringing the claims adjudication
process to an end when a claimant does not raise any specific
objections is appropriate, even if the claimant asks for a hearing,
since the expenditure of administrative resources needed to conduct
further review of a claim under these circumstances will most likely
serve no useful purpose given the non-adversarial nature of the claims
adjudication process. Section 30.311(b) provides that the FAB will also
summarily affirm the recommended decision, in whole or in part, if the
claimant waives any objection to all or part of such decision.
If a claimant files specific objections to a recommended decision
with the FAB, but does not request a hearing on his or her claim,
Sec. 30.312 states that the FAB will consider the objections by means
of a review of the written record of the claim. If the claimant only
objects to a part of the recommended decision (for example, the
claimant objects to OWCP's rejection of the claim with respect to one
occupational disease, but does not object to OWCP's acceptance of the
claim for a different occupational disease), this section notes that
the FAB has the discretionary authority to issue a decision summarily
affirming the uncontested part, if such action is appropriate. Section
30.313 describes the process a FAB reviewer will follow when he or she
conducts a written review of the record, which provides for the
submission of additional evidence or argument from the claimant, or at
the request of the FAB reviewer.
If the claimant files objections and requests a hearing within the
60-day period referred to above, Sec. 30.314 sets out the general
procedural framework that a FAB reviewer will follow through the
completion of the informal hearing process. This section describes a
FAB reviewer's wide discretion in matters of scheduling and in the
conduct of the hearing itself. Consistent with the provision in
Sec. 30.312 allowing partial decisions, Sec. 30.314 also provides that
if the claimant only objects to a part of the recommended decision, a
FAB reviewer has the discretionary authority to issue a decision that
summarily affirms the uncontested part. Section 30.315 completes the
description of the hearing process by indicating that a claimant may
only postpone a scheduled hearing in certain limited circumstances, and
if the hearing cannot be rescheduled in such a way as to prevent delay,
a review of the written record will be conducted instead. It also
indicates that a claimant may request a change to a review of the
written record at any time after requesting a hearing, and that once
such a change is made, no further opportunity for a hearing will be
provided.
The varied processes by which the FAB issues decisions on claims
(or parts of claims) are described in Sec. 30.316. Subsection (a)
provides for summary affirmance (in whole or in part) of a recommended
decision when no specified objections have been raised, subsection (b)
provides for the issuance of a decision on a claim at the conclusion of
either a hearing or a review of the written record, and subsection (c)
provides for the automatic affirmance of any recommended decision that
is pending either a hearing or a review of the written record at the
FAB for more than one year. Subsection (d) indicates that decisions of
the FAB issued pursuant to Sec. 30.316(a), (b) or (c) will become final
upon expiration of 30 days from the date they are issued, unless the
claimant files a timely request for reconsideration
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under Sec. 30.319, and subsection (e) indicates to whom the FAB will
send its decision. Section 30.317 further provides that at any point in
time prior to issuing a decision on a claim, the FAB may request that a
claimant submit additional evidence or argument and may, in the
exercise of its discretion, remand a claim to the district office for
further development without issuing a decision under Sec. 30.316.
Finally, Sec. 30.319 sets out the process whereby a claimant may
request reconsideration of a decision of the FAB before such decision
becomes final, and notes that if the request is granted, the FAB will
review the district office's recommended decision again and issue a new
decision on the claim without holding a hearing. This section also
points out that if the FAB denies the request for reconsideration, the
decision at issue will become final on the date the request is denied.
In Sec. 30.319(c), the Department describes the point at which a
decision on a claim under the EEOICPA becomes final for purposes of
seeking judicial review, which occurs when all administrative review
opportunities have been exhausted.
Modification
In order to accommodate those rare instances when OWCP may wish to
reopen a final decision of the FAB, Sec. 30.320 describes OWCP's
discretionary authority to modify such a decision at any time on its
own motion. This section also provides that a claimant can move for
modification within one year of the date the FAB decision became final,
provided that he or she can establish a mistake of fact in the final
decision or changed circumstances. If OWCP determines that modification
is warranted, this section notes that it may issue a new recommended
decision modifying the prior final decision on a claim. It also notes
that while any new recommended decision issued on modification will be
subject to the adjudicatory process described in subpart D, the scope
of review at the FAB will be limited to the merits of the new
recommended decision; OWCP's discretionary determination to modify the
prior final decision will not be reviewable. Subsection (c) completes
the description of the adjudicatory process by noting that the time
limitations in Sec. 30.320 will not prevent a claimant from filing
another claim for a new occupational disease or consequential injury
not already considered by OWCP, and that regardless of the number of
claims OWCP accepts, no claimant can receive more than one award of
monetary compensation under sections 3628(a)(1) or 3630(a) of the Act.
Subpart E--Medical and Related Benefits
This subpart contains a description of the medical benefits that
are provided to employees under the EEOICPA, the general rules for
obtaining medical care, and information regarding an employee's initial
choice of physician. It also describes the manner in which OWCP may
direct an employee to be examined by another physician of its choosing,
and how OWCP resolves conflicts in the medical evidence that may arise
as a result of such an examination. Finally, subpart E describes the
general requirements for medical reports to be submitted to OWCP, and
the process to be used by employees to seek reimbursement for medical
expenses they have paid.
Medical Treatment and Related Issues
Section 30.400 reflects the basic entitlement to medical benefits
contained in section 3629 of the Act, including the provision that an
employee's entitlement to such benefits commences upon the date the
claim is filed. This section also indicates that medical treatment that
was provided to an employee who dies before the claim is accepted will
be paid for if the claim is accepted, as long as such treatment was
provided on or after the date the employee filed his or her claim.
Section 30.400 indicates that any qualified medical provider may
provide appropriate services, appliances and supplies.
Consistent with OWCP's definition of ``physician'' set out in
subpart A, which is the same as the definition set for
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