EEOICPA BULLETIN NO.08-38

Attention: This bulletin has been superseded and is inactive.

EEOICPA BULLETIN NO.08-38

Issue Date: June 25, 2008

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Effective Date: June 25, 2008

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Expiration Date: June 25, 2009

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Note: This bulletin replaces Bulletin Nos. 06-10 and 06-14.

Subject: Rescinding Bulletins 06-10 and 06-14.

Background: Given the complexity and number of claims presented under Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), means to expedite the claims adjudication process were developed to assist the Claims Examiner (CE). The Division of Energy Employees Occupational Illness Compensation (DEEOIC) National Office (NO) established criteria for the presumption of causation in certain specific situations as outlined in EEOICPA Bulletin No. 06-08.

DEEOIC specialists researched authoritative scientific publications, medical literature, and occupational exposure records for information to identify medical illnesses for which current scientific knowledge does not show a relationship or an etiology due to biological or chemical exposure. The findings of these specialists were incorporated into the appendices of Bulletin 06-10 and its amendment, Bulletin 06-14, to assist the CE in rendering timely and accurate claim determinations under Part E of the EEOICPA.

The information provided in Bulletins 06-10 and 06-14 were not intended to disqualify claims automatically based on medical conditions with no known causal link to toxic exposure. Bulletins 06-10 and 06-14 allowed the claimant to present evidence to refute the conclusions of the DEEOIC specialists, and did not affect existing procedures in place for establishing causation based upon radiation exposure for cancer.

This bulletin replaces Bulletins 06-10 and 06-14. The information contained in the appendices to Bulletins 06-10 and 06-14 has been rendered operationally obsolete by the continued development of the EEOICP Site Exposure Matrices (SEM) website. SEM represents the most current, accurate, and comprehensive information regarding toxic substances and their known health effects, and is updated regularly. DEEOIC has updated SEM to include new conditions based on evidence received from claimants.

The information housed in SEM in no way precludes the claimant’s ability to present evidence that refutes the conclusions of the DEEOIC specialists. To challenge the scientific conclusions presented, compelling and probative evidence must establish that exposure to a toxic substance has been shown to cause, contribute, or aggravate an occupational illness. This bulletin does not affect existing procedures in place for establishing causation based upon radiation exposure for cancer.

References: Energy Employees Occupational Illness Compensation Act of 2000, 42 U.S.C. § 7384 et seq.; 20 C.F.R. §§ 30.111-30.114, 30.230-30.232, 30.300-30.320, 30.400-30.406, 30.420-30.422, 30.505, 30.700-30.726, 30.815, and 30.900-30.912; the Federal (EEOICPA) Procedure Manual: Part E, Chapter E-500 (Evidentiary Requirements for Causation); the EEOICP Site Exposure Matrices; and the National Library of Medicine Haz-Map.

Purpose: To rescind Bulletin Nos. 06-10 and 06-14.

Applicability: All staff.

Actions:

1. The CE will conduct initial development of medical evidence submitted in support of a Part E claim based upon established procedures as set out in EEOICPA PM 2-300 and E-500. Medical evidence must establish that a covered employee was diagnosed with the disease or illness being claimed. Once the CE has confirmed the existence of a diagnosed illness, he or she should determine if it corresponds to one of the conditions listed in SEM as having a causal link to occupational exposure to a toxic substance.

SEM lists three distinct categories of illnesses: specific medical conditions for which a causal link to toxic substances has been identified; conditions for which no known causal link exists based upon the National Library of Medicine’s Occupational Exposure to Hazardous Agents database (Haz-Map); and specific medical conditions for which there is no established causal link to toxic substance exposure based on Haz-Map, but that the CE will still develop for causation based on biological exposure (for example, legionellosis and hantavirus).

2. If it is determined the diagnosed illness does not appear in SEM, or does not correspond to a condition listed in SEM as having a link to occupational or biological exposure to a toxic substance, the CE prepares a letter to the claimant(s). The letter should notify the claimant(s) that available evidence does not demonstrate a known link between the condition being claimed and exposure to a toxic substance.

· If the claimed condition is cancer, the claimant is advised that DEEOIC will assess the claim based upon exposure to radiation. This is done either through membership in a Special Exposure Cohort (SEC) class or the dose reconstruction process and the resultant Probability of Causation (POC). An SEC analysis is comparatively easy to complete. The CE should check for SEC membership before developing for toxic exposure. However, if there is no SEC class membership, the CE should develop for non-radiation toxic causation while awaiting the results of a POC. If a link between a biological or chemical exposure and the illness is found and the results of the POC analysis are not yet available, the CE should accept the Part E claim and pend the B portion until the POC is returned. If the outcome of the SEC or POC is negative and the CE has found no other link, the claimant must produce evidence that the cancer is affiliated with a toxic substance. (See paragraph 3 for a larger discussion of claimant evidence).

· If the claimed condition is not cancer, the claimant is advised the DEEOIC will evaluate any argument, medical, or scientific evidence submitted in support of a causal relationship between the claimed illness and a toxic substance exposure.

The letter must allow the claimant(s) thirty days to provide a response. If additional time is required to obtain information, the claimant should notify the claims examiner. The CE will permit any reasonable request for an extension of the deadline for evidence submission.

3. The CE must evaluate all evidence received from the claimant(s) or other sources to determine if there is any compelling or probative basis for review by a DEEOIC specialist. There are essentially two types of evidence that a CE might encounter: evidence of a programmatic nature (i.e. broad-based epidemiological studies conducted by a university or peer reviewed articles in a reputable medical journal) and claim-specific evidence (i.e. a well-reasoned and medically rationalized opinion from a treating physician).

Occasionally programmatic evidence will be submitted in support of a claim. Despite the type, the CE must evaluate the evidence on its merits and determine whether or not it is probative in nature and warrants review by a DMC or National Office toxicologist, or both. Evidence not warranting a referral includes: unsubstantiated statements of causal relationship; speculative or equivocal medical/specialist opinions; scientific literature or other documents that do not provide reference to the illness under evaluation; and general news articles from print or the Internet. The CE must follow the guidance below when evaluating all such evidence relative to this Bulletin:

(a) Programmatic Evidence. This type of evidence may allow DEEOIC to make a program-wide policy decision regarding how to treat a certain disease/exposure relationship. Programmatic evidence should be based on studies that are occupational in nature, cover a statistically significant human population, and be published in a peer reviewed journal. This would include, for example, large-scale studies conducted by a university regarding occupational or environmental etiology. Animal and environmental studies may also be useful in certain circumstances. Some chemicals used in the production of nuclear weapons are so unique and exotic that no broad-based studies of their health effects exist; therefore, animal and environmental studies must be assessed for possible program-wide applications.

Evidence that is programmatic in nature must be forwarded to National Office for review by the toxicologist and possibly the DEEOIC Medical Director and other policy makers. Such referrals are routed to National Office utilizing the existing method of referrals to the toxicologist.

(b) Claim-Specific Medical Evidence. Claim specific evidence can be used establish a causal relationship for a specific employee based on his or her unique conditions or history. This evidence would take the form of a reasoned opinion from a qualified medical specialist concerning the employee’s particular circumstances. This reasoned opinion may be accompanied by human epidemiological studies or other scientific findings supporting a causal relationship between an illness and a toxic substance.

Generally, such evidence will require a DMC review to determine whether or not the conclusions drawn by the opining physician are plausible given the facts of the case. If there is a question regarding the exposure aspects of the case, the CE refers the matter to an Industrial Hygienist for an exposure analysis before forwarding the matter on to the DMC.

If the evidence is of such a nature that it establishes, in a logical way, a causal relationship between a disease and an exposure, a review by the National Office toxicologist might be in order. Similarly, if the opinion relates to a chemical about which little is known, a toxicologist review might be necessary. The CE consults his/her supervisor to evaluate the efficacy of a potential toxicologist review and such referrals are made pursuant to existing guidelines. While rare, it is possible that a toxicologist referral of this nature could result in a policy decision and thus equate to programmatic evidence. If the toxicologist determines that the opinion can be used in other decisions meeting similar fact patters, the opinion could be used as a policy making tool and SEM will be updated as noted below.

(c) Programmatic and Claim Specific. At times both types of evidence will be offered. It is possible that a claimant or treating physician will enter evidence of a programmatic nature into the record as claim-specific. If this is the case, the CE must evaluate the evidence with his/her supervisor to determine whether it warrants National Office review. If so, the evidence is forwarded for toxicologist review as noted above.

Evidence that alters policy and is implemented program-wide will be communicated to the National Office SEM POC so that SEM will reflect these policy decisions. The Policy Branch Chief will inform the SEM POC whenever a policy change requires a SEM update. A programmatic change may or may not require the issuance of a bulletin. In either case, SEM updates with policy implications will be evident by the appearance of the small DOL icon in the “References” column in the SEM search result page. The appearance of the DOL icon will inform the CE that policy guidance is present regarding a given subject in SEM and the CE must review the policy statement before proceeding further.

4. If, after reasonable development, the CE has determined the response from the claimant(s) is insufficient to warrant review by a DEEOIC specialist, a finding for causation can be rendered with regard to toxic exposure. The CE will make the finding that an exposure to a toxic exposure was not “at least as likely as not a significant factor in aggravating, contributing to or causing the diagnosed illness.” While it may be necessary to await a dose reconstruction and POC calculation regarding a diagnosed cancer, all non-cancerous conditions immediately receive a recommended decision denying compensation for the illness under the EEOICPA. If any of the non-cancer conditions are consequential to the cancer, a decision on those conditions should not be rendered until the cancer decision is made. The recommended decision includes a citation to this bulletin.

5. The following wording is to be included in the Conclusions of Law in both the recommended and final decisions:

DEEOIC has been unable to identify any relationship between [insert condition] and exposure to toxic substances. There is insufficient evidence to determine that an exposure to a toxic substance was at least as likely as not a significant factor in aggravating, contributing to or causing the diagnosed illness.

6. Claimants are encouraged to submit documentation of established occupational illness correlations for possible inclusion in SEM. Paragraph 3 outlines the programmatic evidence that would assist in modifying SEM. SEM contains a link for claimants to e-mail information on illness causation, and an address for mailing documentation. Each DO and FAB has designated a SEM Point of Contact (POC) that is responsible for forwarding information received in the District Office concerning possible additions to SEM to the NO.

Disposition: Retain until superceded or incorporated into 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