EEOICPA CIRCULAR NO.09-01 February 6, 2009
SUBJECT: This Circular provides clarification of the procedure for determining impairment ratings for Part E claims.
Under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), as amended (42 U.S.C. § 7384 et seq.) the Secretary of Labor is required to determine minimum impairment ratings “in accordance with” the American Medical Association’s (AMA’s) Guides to the Evaluation of Permanent Impairment (the Guides). 42 U.S.C. § 7385s-2(b). The Division of Energy Employees Occupational Illness Compensation (DEEOIC), in its implementing regulations, requires that impairments be evaluated in accordance with the “current edition” of the Guides. 20 C.F.R. § 30.901(b). The Guides provide instructions to rating physicians to determine the total percentage of whole body impairment due to injury or illness.
At the time that the amendments to the Act creating Part E were enacted (October 28, 2004), and as of the effective date of DEEOIC’s implementing regulations (February 27, 2007), the current edition of the Guides was the Fifth Edition. In January of 2008, the AMA published the Sixth Edition of the Guides. In the interest of congruity and fairness to claimants, DEEOIC has concluded that evaluations to determine percentages for impairment claims submitted by Part E claimants must be made using the Fifth Edition of the Guides.
Following consultation with DEEOIC medical professionals, the Division has determined that the Sixth Edition of the Guides represent a major departure from the Fifth Edition, and would likely have a significant impact on claimants applying for impairment benefits under Part E. This impact will negatively affect most claims submitted by lowering the percentage of impairment, and add unnecessary delays to the time required to receive an evaluation. DEEOIC has determined that continued use of the Fifth Edition will most benefit EEOICPA Part E claimants, and will result in a more expedient evaluation and compensation process. Additionally, all prior impairment evaluations were performed based on the Fifth Edition of the Guides. A change to the Sixth Edition methodology would unfairly penalize future claimants who file for impairment benefits vis-à-vis previous claimants. Claimants who have already received impairment awards, yet wish to have their percentages reevaluated due to changed circumstances, would likewise be unfairly affected by transition to the Sixth Edition.
As has been discussed, the Act is silent on the edition of the Guides to be used in Part E impairment evaluations. 42 U.S.C. § 7385s-2(b). However, DEEOIC’s regulations require use of the “current edition” of the Guides. 20 C.F.R. § 30.901(b). At the time of the regulation’s effective date, the Fifth Edition was the “current edition” of the Guides. As such, continued use of the Fifth Edition is appropriate given DEEOIC’s administrative rules.
Retention of the Fifth Edition alleviates the need for medical providers and DEEOIC District Medical Consultants (DMCs) to be retrained using the methods required by the Sixth Edition. Part E claimants seeking impairment evaluations will benefit from the greater availability of physicians with training in the Fifth Edition, particularly in medically underserved areas.
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, District Office, Mail & File Sections, Resource Center Managers