Issue Date: February 21, 2013
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Effective Date: February 21, 2013
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Expiration Date: February 21, 2014
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Subject: Systematic Review of Denied Part E Cases
Background: Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) provides compensation for workers for whom it is found that it is at least as likely as not that exposure to a toxic substance at a Department of Energy (DOE) facility was a significant factor in aggravating, contributing to, or causing the illness; and it is as least as likely as not that the exposure to such toxic substance was related to employment at a DOE facility. Determinations under these standards involve case-specific review of the facts surrounding an employee’s exposures to toxic substances at DOE facilities. In addition, it requires evaluation of complex medical information and scientific literature that provides evidence of links between specific toxins and occupational illnesses. Because the state of knowledge about toxins at DOE facilities and the links between those toxins and occupational illnesses is constantly being updated, it is necessary to review cases denied under Part E to determine if there have been material changes to either the toxic exposure profiles at DOE facilities or the associated health effects of such exposures in a way that would alter the outcome of these cases.
References: 42 U.S.C. § 7385s-4(c); 20 C.F.R. § 30.320(a).
Purpose: To provide procedures for reviewing previously denied Part E cases. This Bulletin replaces EEOICPA Bulletin No. 10-15, SEM Quality Assurance Plan.
This Bulletin addresses Part E claims in denial status and delineates procedures for the systematic re-evaluation of these cases. This will be done to ensure that the adjudication of the claim is based upon the most current toxic substance exposure information and scientific knowledge.
In conjunction with this Bulletin, periodic implementing Circulars will be issued on topics requiring review under the broad procedural guidance outlined in this Bulletin. These Circulars may include information about exposures, toxins and occupational illnesses, including new associations between these elements. The implementing Circulars may also contain screening worksheets tailored to the specific set of cases targeted for review.
Applicability: All staff.
Actions:
1. As implementing Circulars are issued, DEEOIC will prepare a case list (or lists, as appropriate) of cases requiring review.
In terms of cases being reviewed under the Systematic Part E review, note that the review is only applicable to cases denied on the basis of either 1)exposure to toxic substance not established and/or 2)it is not established that exposure to a toxic substance caused, contributed or aggravated the diagnosed condition. Cases denied for other reasons, such as survivorship or employment, don’t fall under the guidance issued here, as nothing delineated here or in the subsequent circulars would change the outcome of such cases.
2. As case lists are issued, each case on the list is to be reassessed under Part E. The basic underlying components of these Part E case reviews are:
• conduct a new SEM search
• review the DAR
• review the OHQ
• review any material new to the file since the most recent Part E denial
• consider any additional information conveyed in corresponding implementing Circulars
3. All cases on the list are to undergo an initial screening based upon a case review (described below). The initial screening will place the cases in three categories (described in items 4, 5 and 6 respectively). These categories are “Likely,” “Unlikely,” or “Development Needed,” and are recorded on the worksheet included with the corresponding implementing Circular, or in those instances described later in this item.
“Likely” will be selected if, upon re-examination of the case, exposure to a toxin linked to a diagnosed condition is now established,(a new causation determination is still needed);
“Development Needed” will be selected if development is needed, such as an IH referral;
“Unlikely” will be selected if there is no new evidence of material exposure to a toxin linked to any of the employee’s diagnosed conditions.
The initial screening result must be recorded in ECS. One of the above selections will be made to correspond with the screening worksheet. The date associated with the “Likely,” “Development Needed,” or “Unlikely” initial screening result will be equal to the date of the screening worksheet. An initial screening reason will be selected as well. The reason will reflect either the Circular number and item being reviewed (ie. Rvwd per Circular 13-XX, Bladder Part E) or this Bulletin number (ie. Rvwd per Bulletin 13-XX) for a generic Part E systemic review, which is discussed later in this item. As discussed earlier, periodic implementing Circulars will be issued on topics requiring review under the broad procedural guidance outlined in this Bulletin. These Circulars may include information about facilities, exposures, toxins and occupational illnesses, and new associations between these elements. Each Circular and corresponding worksheet will have a specific reason code in ECS for use in the initial screening.
Initial screening is done at the case level and is completed for all cases on a review list. Initial screening is meant to capture the analysis of the reviewer at the time of review. If after further development, the reviewer changes his or her opinion, the initial screening result should not be updated. The only exception to this being that ECS should be updated to reflect “No Action Necessary” if it is determined that the case will not need a new decision or reopened/new decision issued if the evidence warrants.
In addition to DEEOIC-initiated Part E case review, claimants may request reviews of their denied Part E cases during the normal course of DEEOIC operations. The district offices should handle those cases as they normally would. However, if a comprehensive Part E review is conducted as part of such a reopening request, that review is to be documented on the generic Part E review worksheet included as Attachment 1 of this Bulletin. This will allow DEEOIC to effectively track re-review of Part E cases and can tailor subsequent pull lists in such a way as to reduce duplicative work.
Standard review actions and an initial screening outcome are listed on the worksheet. The initial screening outcome and “No Action Necessary” coding for general Part E systematic case reviews will be the same as that for the specific ones and will have the corresponding ECS coding actions discussed earlier in this bulletin. The only difference for the general Part E case reviews, versus the specific Part E systematic case reviews for which individual Circulars will be issued, is that the general reviews will have a generic “Initial Screening” and “No Action Necessary” reason code of “Rvwd per Bulletin 13-XX, General Systematic Part E Case Review.” Reviews associated with a particular Circular will have their own unique reason code assignment.
4. If, upon review of the case, there is no discernable evidence of material exposure to a toxin linked to any of the employee’s diagnosed conditions, then the “Unlikely” screening code and related Circular/Bulletin reason code is selected and the initial screening date is entered that corresponds to the screening worksheet. Then, the “No Action Necessary” checkbox and reason code are automatically populated, but the CE must enter the date of the “No Action Necessary” (which is likely the same as the screening date). Also at this time, place the printout from the new SEM search in the file, along with a memo to the file indicating the date of the review. This documents for the file that no further action is required. If the SEM search does not involve new search criteria, it does not need to be re-entered into ECS. The screening codes and associated documentation will show that the search was completed.
5. If the review of the case, in conjunction with guidance from an implementing Circular, and a new SEM search now provides information that a finding of toxic exposure related to the employee’s diagnosis is now appropriate; or there is compelling evidence in the case file of material exposure to a toxic substance(s) that is now linked to the employee’s diagnosis; then, the CE is to conclude that the employee had a material exposure to the substance. These cases are categorized as “Likely” under this structure, for “exposure established.” Cases in this category still need an assessment for causation (discussed at item number 7).
6. If the case does not in fit in either category, “Likely” or “Unlikely,” then an IH referral may be appropriate if there is some evidence that suggests some level of exposure, but the CE is unsure of its significance. These cases are identified as “Development Needed.”
7. Once a case is either identified as a “Likely” (exposure established) or after an IH indicates potential for substantial exposure linked to one or more of the employee’s diagnoses, the case is posed for a medical opinion on whether it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the illness.
8. If the written medical opinion does not support a finding of causation of the illness based upon the accepted exposure, the CE is to draft a short memo memorializing the result of the medical opinion. The memo is placed in the file with the new SEM report and any additional evidence collected through development that was conducted under this Bulletin. In ECS, selection of the “No Action Necessary” associated with the initial screening is made at this time. The date associated with the “No Action Necessary” is the date of the memo discussing that no further action is needed at this time.
9. If the medical opinion supports causation between the accepted exposure and the diagnosed illness, then the case is to be reopened. In the exercise of the DEEOIC Director’s discretion in the reopening process, the Director is delegating authority to the four District Directors (DD) and the Assistant District Directors (ADD) to sign Director’s Orders to reopen cases based on guidance in this Bulletin and related Circulars when those cases are now poised for acceptance. Attachment 2 is a sample Director’s Order. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated. After the district office issues a Director’s Order, issuance of a new recommended decision can proceed.
11. For cases currently pending a final decision at the FAB that are identified on the list associated with the implementing Circular, existing guidance already requires that the Hearing Representative/Claims Examiner (CE) re-run the SEM as part of their review of the case. In the event that this reexamination requires further development, FAB is to remand the recommended decision to the district office. The Remand Order should direct the district office to review the case in accordance with the further development found by FAB to be necessary. FAB staff then codes ISD, ISL (which would result in a remand), or, if their review results in an ISU, proceed with denial.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
RACHEL P. LEITON
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, Resource Centers and District Office Mail & File Sections