Chapter 2-1800 Exhibit 5

Sample Denial of Reconsideration Request (New Evidence and/or New Argument Submitted)

NOTICE OF DENIAL OF REQUEST FOR RECONSIDERATION

This is a response to your request for reconsideration of the July 1, 2011 final decision of the Final Adjudication Branch (FAB) under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or Act) which denied your Part E claim for sleep apnea consequential to sarcoidosis. The FAB received your request and determined that it was timely filed. 20 C.F.R. § 30.319 (2011). On August 15, 2011, the FAB acknowledged receipt of your request for reconsideration. However, the evidence of record shows that, to date, you have not submitted any additional evidence.

In your request for reconsideration, you stated, “The opinion of Dr. Smith and the Contract Medical Consultant (CMC) conflicted, which would require that the matter be sent to a third physician for a referee opinion, and it was an error not to do so.” The Federal (EEOICPA) Procedure Manual Chapter 2-0800.13 provides guidance when making a determination as to when a claim is to be referred for a referee opinion:

In most instances, careful weighing of the medical evidence should allow for resolution of the issues without having to resort to a referee or "impartial" specialist. However, where the weight of medical evidence is divided equally between the opinion of the treating doctor and that of the second opinion physician, a referee opinion must be obtained...a conflict of medical opinion must actually exist as determined by weighing the medical evidence. The CE must decide the relative value of opposing opinions in the medical record by considering all factors, to include each physician’s specialty and qualifications, completeness and comprehensiveness of evaluations and rationale, and consistency of opinions.

The FAB weighed the medical evidence and determined that the conflicting medical opinions were not of equal weight. In such cases, a referee specialist examination is not necessary. I have reviewed the evidence of record, including the CMC report and the medical evidence you have submitted and the opinion of Dr. Smith. I have determined that the report of the CMC is of greater weight and probative value because Dr. Smith failed to provide a complete and comprehensive medical report. The FAB noted that the district office requested such a report; however none was provided. Accordingly, the FAB gave consideration to the relative value of the opposing opinions, including considering the rationale and consistency of the respective opinions, and determined the CMC’s report should be granted more weight.

Additionally, in your request for reconsideration you stated, “The treating physician who examined and treated the claimant was not given proper weight over a CMC who never saw the claimant.” According to the EEOICPA Procedure Manual, in evaluating the merits of medical reports, greater value is assigned to a well-rationalized opinion which is based on complete factual and medical information over an opinion based on incomplete, subjective or inaccurate information. The FAB notes that Dr. Smith stated in his report that he “believed your sleep apnea was indirectly related to your lung disease.” Dr. Smith continued, “I do not have any concrete evidence to prove this, but it is my opinion.” As such, Dr. Smith’s opinion is not based on complete factual and medical information, but is instead subjective. In contrast, the opinion of the CMC was found to be well-rationalized, supported by the medical evidence in this case and cites recent scientific and medical literature in support of his conclusion. Further, the EEOICPA Procedure Manual outlines that the opinion of an expert in the relevant medical field is to be granted greater value. Dr. Smith is a general practitioner specializing in geriatric medicine. The CMC is an expert in occupational medicine.

Your request for reconsideration goes on to object to the handling of your claim by the Hearing Representative (HR). You state that the HR “applied the wrong standard of proof by a preponderance of evidence instead of the at least as likely as not standard in the Conclusions of Law.” The Regulations at 20 C.F.R. § 30.111(a) state that the claimant bears the burden of proving, by a preponderance of evidence, the existence of all criteria necessary to establish eligibility under the EEOICPA. To establish eligibility for a consequential condition under Part E, you must prove by preponderance of the evidence that the diagnosed illness, in this case sleep apnea, occurred as a result of an accepted illness. This is established by a fully-rationalized medical report by a physician which shows the relationship between the claimed consequential condition and the accepted illness. The “at least as likely as not” standard cited in your request only pertains to causation determinations for primary illnesses, which is not at issue in your claim for a consequential illness.

Finally, the request for reconsideration renewed your previous objections to the June 9, 2010 recommended decision of the Denver district office. These objections were previously considered by the FAB and were addressed in the July 1, 2011 final decision.

The EEOICPA is administered according to the Act itself, 42 U.S.C. § 7384, et seq., the associated Code of Federal Regulations, 20 C.F.R. Part 30, Bulletins, Circulars and the Federal EEOICPA Procedure Manual. The FAB has thoroughly reviewed your case file and finds that your claim has been properly adjudicated according to the Act and its associated regulations, policies and procedures.

The Federal (EEOICPA) Procedure Manual Chapter 2-1800 provides that a timely request for reconsideration may be denied if it does not contain sufficient probative evidence or substantiated argument that directly contradicts a material finding of fact or conclusion of law set forth in the final decision. You have not submitted a new argument or evidence that directly contradicts the conclusions reached in the July 1, 2011 final decision. As such, your request for consideration is denied. The denial of your Part E claim for sleep apnea is final on the date of issuance of this denial of your request for reconsideration. 20 C.F.R. § 30.319(c).

Denver, Colorado

Hearing Representative

Final Adjudication Branch