Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended

DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB51

Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended

AGENCY:

Office of Workers' Compensation Programs, Employment Standards Administration, Labor.

ACTION:

Final rule.

SUMMARY:

On June 8, 2005, the Department of Labor (DOL) published interim final regulations that govern its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act). Part B of the Act provides lump-sum payments of $150,000 and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B also provides lump-sum payments of $50,000 and medical benefits to individuals found eligible by the Department of Justice (DOJ) for $100,000 under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or calendar years of qualifying wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any calendar years of qualifying wage-loss). Part E also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of RECA and, where applicable, to survivors of such employees.

At the same time the Department published the interim final regulations, it also invited written comments and advice from interested parties regarding possible changes to those regulations. This document amends the interim final regulations based on comments that the Department received.

DATES:

Effective Date:

This rule will be effective on February 27, 2007, and will apply to all claims filed on or after that date. This rule will also apply to any claims that are pending on February 27, 2007.

FOR FURTHER INFORMATION CONTACT:

Shelby Hallmark, Director, Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., Washington, DC 20210, Telephone: 202-693-0031 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

The Department of Labor's interim final regulations implementing its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384

et seq.

), were published in the

Federal Register

on June 8, 2005 (70 FR 33590). They took effect immediately and included a 60-day period for comment. During the comment period, the Department received 533 timely comments: two joint comments from 39 congressional representatives; two from labor organizations; four from attorneys; four from advocacy groups; one from a lay representative; one from DOE; one from a DOE contractor; and 518 from individuals. The Department also received untimely comments from one physician, one attorney, one advocacy group, the Coconino County (Arizona) Board of Supervisors, one labor organization, the Navajo Nation and 23 individuals; all of the points they raised were also raised by the timely comments. Almost all of the timely comments (521) addressed the issue of eligibility for survivor benefits under Part E of EEOICPA; 494 of the comments addressed this issue alone. They also addressed a number of other issues, including the administrative claims process used to adjudicate claims under EEOICPA, entitlement qualifications, and the extent of coverage provided under Part E. The Department's section-by-section analysis of the timely comments it received is set forth below (see sections I and II).

Some minor changes have been made to the interim final regulations that did not result from any comments. One such change is the addition of new language to § 30.112(b) to recognize that pursuant to § 30.106, entities other than DOE may be verifying alleged periods of employment that claimants have reported to OWCP. A second change is the addition of language to § 30.301(c) clarifying that OWCP will also not issue a subpoena for the testimony of employees of the National Institute for Occupational Safety and Health (NIOSH) or contractors of either OWCP or NIOSH acting in their official capacities with respect to the EEOICPA claims adjudication process. In addition, the existing language of § 30.316(c) has been modified so that a recommended decision on a claim that is pending for more than one year after the date it was reopened for issuance of a new final decision will be considered a final decision on that claim as of that date, and § 30.400(a) has been modified to reflect the current practice of OWCP to pay for medically necessary treatment of a primary cancer in claims where the accepted occupational illness or covered illness is a secondary cancer.

When publishing a final rule following a comment period, it is customary to publish only the changes that have been made to the rule; however, in order to be more user-friendly, the Department is publishing the entire rule, including the parts that have not been changed. By doing so, only one document containing all of the regulations and commentary needs to be consulted rather than multiple documents.

I. Comments on the Interim Final Regulations

The section numbers used in the headings of the following analysis are those that were used in the interim final regulations. Unless otherwise stated, the section numbers in the text of the analysis refer to the numbering used for the final regulations. No comments were received with respect to part 1.

Section 30.5

One individual suggested that the definition for the statutory term “Department of Energy facility” be modified to more clearly identify the “list of facilities established by the Department of Energy” referred to in the interim final regulation. To eliminate any confusion with respect to this list, and as suggested by the comment, § 30.5(x) has been amended in this final rule to specify which list of facilities the Department has adopted. Another individual believed that the five-year latency period requirement for specified cancers listed in § 30.5(ff)(5) was “in error” and suggested that it be deleted. However, the latency period requirement is contained within section 7384l(17)(A) of the Act and cannot be modified in these regulations. Therefore, the suggested change was not made. A third individual suggested that § 30.5(gg) be modified to more clearly describe the requirements for eligibility of survivors under Part E. Section 30.5(gg) is only intended to inform readers that survivors must be alive to receive a payment. Because complete descriptions of the requirements for

eligibility of survivors under Part B and Part E of EEOICPA already appear at § 30.500, the suggested change is unnecessary and was not made.

Sections 30.100, 30.101, 30.102 and 30.103

One attorney pointed out that while employees and survivors can use Forms EE-1 and EE-2 to file their initial claims with OWCP, there was no form provided for filing a claim for an alleged consequential illness or injury. The absence of a specific form for claiming an alleged consequential illness or injury is intentional since in those situations, OWCP would already have all of the necessary factual information that could be requested by a form. Claimants need only submit written “words of claim” to OWCP, together with the type of supporting medical evidence described in §§ 30.207(d), 30.215, 30.222(b), 30.226 or 30.232(c), to file a claim for a consequential illness or injury. Therefore, no new form has been designed and the suggested changes to §§ 30.100 and 30.101 were not made.

Two individuals disputed the provision in § 30.101(c) that a survivor must be alive to receive a payment under the Act and noted that if all of the eligible survivors die before payment can be made, no payment can be made to any other individual as the heir of a deceased eligible survivor. However, this result is required under both Parts B and E of EEOICPA pursuant to sections 7384s(e)(1) and 7385s-3(c), which require that survivors under both Part B and Part E must be alive at the time of payment, and cannot be altered by regulation. Therefore, the requested change to § 30.101(c) was not made.

Three advocacy groups suggested that the provision in § 30.102 that OWCP will only adjudicate a claim for an increased impairment rating if it is filed at least two years from the date of the last award of impairment benefits is unreasonable and proposed that the waiting period to be reduced to either one year or six months. The claim development process that OWCP uses when it determines a covered Part E employee's minimum impairment rating is necessarily complex and usually takes a considerable amount of time to complete. For example, the medical evidence submitted in support of an alleged rating may not contain all of the information that OWCP will need to determine an impairment rating. OWCP would then have to seek that information from another source, or obtain an impairment evaluation by another physician before it would be able to determine the extent of the alleged permanent impairment based on the evidence in the case record. If claimants were permitted to apply for an increased impairment rating sooner than two years after their prior award for impairment benefits, the claims processing system would inevitably become less efficient and claimants who have not had their initial impairment claims adjudicated and who have not received benefits for their compensable permanent impairments would necessarily have to wait even longer to receive a decision from OWCP. Therefore, in order to maintain an efficient system of adjudication for all claimants and to best use its limited resources, OWCP concludes that the two-year waiting period should remain in place and none of the suggested changes to this section have been adopted.

One of these same advocacy groups also noted that while § 30.103 requires claimants to use approved forms when filing claims under Part E of EEOICPA, “the present forms do not allow for claiming diseases other than cancer, berylliosis or silicosis.” On June 20, 2005, the Office of Management and Budget approved new versions of Forms EE-1 and EE-2 that allow claimants to file for all illnesses potentially compensable under Part E. As noted in § 30.103(b), these forms are available on the Internet at

http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm

. Therefore, the suggested change to § 30.103 is unnecessary and has not been made.

Section 30.106

One individual questioned whether DOE was in possession of sufficient employment data to enable it to verify alleged periods of employment for “most” claims. OWCP does not dispute that there are a number of facilities for which DOE does not have access to any employment data. However, OWCP has developed a number of alternative methods to be used for verifying alleged employment at those facilities. In acknowledgement of this situation, § 30.106 describes the various alternative methods by which OWCP may seek to verify alleged periods of employment at those facilities for which DOE has no employment data, and no change to this section was made in the final rule.

Sections 30.111, 30.113 and 30.114

One individual and two labor organizations questioned the description of the

general

burden of proof that all claimants must meet in order to establish their entitlement to any compensation under either Parts B or E of EEOICPA. Section 30.111(a) describes the general burden of proof that claimants must meet, “[e]xcept where otherwise provided in the Act and these regulations,” with respect to all of the required elements involved in a claim. As one of these labor organizations noted, there are differing burdens of proof between Parts B and E, as well as between different claimed illnesses within a single Part of the Act. This fact, however, does not mean that the description of the

general

burden of proof in § 30.111(a) is incorrect. OWCP is committed to helping claimants meet their burden of proof and is aware that some claimants may have difficulty proving both the presence of and their exposure to a toxic substance at a particular facility under Part E. In an effort to remedy this situation, OWCP is currently developing exposure matrices that will compile information provided by a variety of sources, including DOE, former worker medical survey programs, and epidemiological studies. For all of the DOE facilities, extensive documentation exists covering thousands of toxic materials. The matrices now being developed will be posted on our Web site and will be available to claimants and their representatives. While it is not possible to define precisely in a regulation how these complex matrices will be used in each case, OWCP's procedural guidance documents will provide additional clarity in this regard, and those documents will also be available to the public on our Web site. Nevertheless, it would not be appropriate to relieve claimants of their ultimate obligation to prove their claims, which is a standard requirement of all state and federal workers' compensation programs. Since Part E was intended to substitute for the state workers' compensation benefits that claimants could have sought DOE's assistance in obtaining under former Part D of EEOICPA, OWCP's application of standard workers' compensation principles is appropriate and no changes were made to § 30.111(a).

Another individual suggested that OWCP amend § 30.111(c) to state that an affidavit submitted by a claimant is not, in and of itself, sufficient to establish a period of alleged employment. Section 30.111(c) currently states that such affidavits “may be relied on in determining whether a claim meets the requirements of the Act. * * *” However, since § 30.112(b)(3) already makes clear that OWCP may reject a claim when the only evidence of covered employment is a “self-serving affidavit,” the suggested change is unnecessary and was not adopted in the

final rule. A third individual suggested that language be added to § 30.111 stating that when OWCP requests a second opinion from a medical specialist, it will only provide such specialist with copies of the “medical” evidence in the case file to review instead of all “relevant” evidence in the file. This suggestion ignores the fact that factual evidence from a case file may be highly relevant (

e.g.

, evidence of exposure levels, environmental assessments, etc.) to the probative value of the specialist's medical opinion and as a result, the requested change was not made.

A third individual requested that § 30.113(a) be changed to indicate that OWCP will accept various types of “electronic” submissions in support of claims for compensation under EEOICPA, while an advocacy group suggested that § 30.113(c) be changed due to its belief that all statements regarding the substance of lost or destroyed factual or medical evidence would be “self-serving” and therefore not acceptable. Both of these provisions have been in effect since the issuance of the first final rule on December 26, 2002, and have not proved problematic in practice. Therefore, the requested changes were not made in this final rule.

A fourth individual disagreed with the general requirement in § 30.114 that claims for compensation under EEOICPA be supported with medical evidence that establishes the existence of the alleged occupational illness under Part B or covered illness under Part E. However, these medical requirements are derived from the statutory requirements in the Act itself and cannot be altered through the rulemaking process. Therefore, the requested change to § 30.114 was not made.

Section 30.115

Two individuals asserted that application of the dose reconstruction process discussed in § 30.115 of the interim final regulations to Part E cancer claims would be neither just nor fair, and one advocacy group asked how OWCP planned to adjudicate the claims of employees with non-specified cancers (those not listed at § 30.5(ff)) at newly designated Special Exposure Cohort worksites. With respect to the first of these two concerns, the discussion of § 30.213 in the preamble to the interim final rule described the scientific and administrative reasons why OWCP decided to use the existing dose reconstruction process from Part B to adjudicate certain radiogenic cancer claims filed under Part E, and the two commenters have not presented any arguments challenging the underlying bases for that decision. As for the comment regarding OWCP's adjudication of non-specified cancer claims following an administrative addition of a class of employees to the Special Exposure Cohort, this question involves the manner in which the Department of Health and Human Services (HHS) defines the new class of employees and the unique factual basis for its addition to the Special Exposure Cohort. However, since neither of these matters are within the jurisdiction of OWCP, they cannot be addressed in the context of this rulemaking (see § 30.2(b)). For the above reasons, no changes were made to § 30.115 in the final rule based on these three comments.

Section 30.213

OWCP received 19 comments regarding the operation of § 30.213 with respect to the 50 percent compensable level of probability of causation (PoC) it will use to adjudicate claims for radiogenic cancer under Part E of EEOICPA (three comments were received from advocacy groups, 11 from individuals, two from congressional representatives, one from a lay representative, and two from a single labor organization). These comments requested that OWCP lower the compensability level below the 50 percent level that is used for Part B claims, but gave no scientific or other rationale for setting the compensability level at any particular point below 50 percent. Rather, the commenters base their arguments on the fact that the statutory causation standard for Part E uses language that differs from the language used for Part B. For the reasons set forth below, OWCP has determined that it is more consistent with congressional intent and current science to continue to use HHS's regulations in making the determination required by section 7385s-4(c)(1)(A) of the Act because those regulations provide the only reasonable factual basis upon which OWCP can determine if it is “at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility was a “significant factor in aggravating, contributing to, or causing” radiogenic cancer for which compensation is claimed under Part E.

It is clear from the scientific literature that it is not possible to definitively attribute any individual's cancer to any particular cause, and no commenter identified a method of attribution. As noted in Science Panel Report No. 6,

Use of Probability of Causation by the Veterans Administration in the Adjudication of Claims of Injury Due to Ionizing Radiation,

issued by the Committee on Interagency Radiation Research and Policy Coordination of the Office of Science and Technology Policy, Executive Office of the President (August 1988), “[a]nalysis of medical findings cannot separate the ‘radiogenic cases’ from those unrelated to radiation exposure; no ‘biological markers' have yet been identified that can unequivocally point to radiogenic cancers as distinct from non-radiogenic cancers. An excess incidence of cancer is identifiable in a statistical sense only.”

It is, thus, not surprising that Congress required the use of statistical probability in the determination whether to compensate an individual with a claimed cancer under Part B. Under Part B, an individual will be determined to have sustained “cancer in the performance of duty for purposes of the compensation program if, and only if, the cancer [at issue] was at least as likely as not

related to

employment at the facility” (emphasis added), determined pursuant to guidelines based upon radiation dose and “the upper 99 percent confidence interval of the probability of causation in the radioepidemiological tables published under section 7(b) of the Orphan Drug Act (42 U.S.C. 241 note),” as well as a number of other factors. The technical documentation prepared by HHS to explain the computer program used to make this calculation similarly notes that “it is not possible to determine, for a given individual, whether his or her cancer resulted from workplace exposure to ionizing radiation.” (NIOSH—Interactive RadioEpidemiological Program (IREP) Technical Documentation, June 18, 2002). Part B, thus, requires that a claimed cancer be determined to be “related to” employment at a covered facility if the radiation dose and other factors combined indicate that there is a statistical probability that the cancer would not have occurred in the absence of work-related exposure to radiation. In other words, the PoC determination made for purposes of Part B is actually a determination that there is a 50 percent or better chance that radiation was a factor, however slight, “in aggravating, contributing to, or causing” a claimed cancer because, in the absence of work-related exposure to radiation, the cancer would not have occurred at all.

Because it is impossible to determine the extent to which any individual factor contributed to the development of cancer, OWCP has concluded that the only way to comply with the statutory

mandate in Part E is, in effect, to interpret “a significant factor” as including any factor. Accordingly, the determination made pursuant to HHS regulations issued under Part B whether there is a 50 percent probability that radiation was a factor in the development of cancer (

i.e.

, that in the absence of work-related exposure to radiation, the cancer would not have occurred at all) will be deemed sufficient to establish that radiation was not only a factor, but was also a significant factor “in aggravating, contributing to, or causing” the cancer in question.

The position taken by the commenters appears to be based on a misunderstanding of the test used by Congress in Part B of EEOICPA for determining coverage for cancer due to exposure to radiation. The standard used is whether a cancer suffered by a worker is “related to” his or her employment at a covered facility. The commenters suggest that Part B awards benefits only for cancers caused by exposure to radiation, while Part E was intended to award benefits where the cancer was either caused by or contributed to by exposure to radiation. This misunderstanding may well stem from use of the term “probability of causation” to describe the results of the statistical determination made by the radioepidemiological tables used in the process. By using the term “related to” in Part B, however, Congress encompassed all cancers for which there is a statistical probability that exposure to radiation was a factor in the development of the cancer. Despite the use of the word “causation” in the term “probability of causation,” the determination reached is not an individual determination of the mechanism of cause and effect leading to a particular cancer, which as explained above is not scientifically possible, but a statistical prediction of the probability that the cancer would not have occurred in the absence of exposure to radiation. Thus, the HHS technical documentation describes PoC as “the likelihood that an existing cancer resulted from that [workplace radiation] exposure.” (NIOSH-IREP Technical Documentation, June 18, 2002). Scientific analysis does not distinguish between cancers that are caused or contributed to by radiation. Since the actual mechanisms of cause (or contribution) for a given cancer are not known, only probabilistic assertions can be made, and they address only whether the cancer is more or less likely not to have occurred absent the exposure. The IREP approach identifies all conceivable cancers that might have resulted from the radiation exposure. This probabilistic approach is the only generally accepted scientific means of assigning responsibility for cancers in relation to radiation exposure. The Department of Veterans Affairs and the Defense Department also utilize essentially the same statistical probability test to adjudicate benefits for potentially radiogenic cancer cases incurred by veterans exposed to radiation.

Further, it should be noted that the epidemiological method utilized in this determination is actually far more favorable towards claimants than merely requiring a determination that radiation exposure was “at least as likely as not” a significant factor. The method specified by Congress for Part B and adopted by OWCP for Part E requires that OWCP use the upper 99 percent confidence interval to determine whether cancers of employees are to be compensable. In essence, a confidence interval indicates the likelihood that a statistical sample will reflect actual results and is often demonstrated in terms of a margin of error (

e.g.

, ±5 percentage points in a poll). The precise statistical definition of the 99 percent confidence interval is that if a study or poll were conducted 100 times, the results would be within the sample's margin of error 99 times and one time the results would be either higher or lower. For purposes of the calculations performed under Parts B and/or E of EEOICPA, an upper 99 percent confidence interval establishes a significant margin of error in favor of claimants for whether the exposures that appeared at least as likely as not to cause cancer actually did. That is, use of this confidence interval means that there is only a one percent chance that the exposure level has been underestimated and a 99 percent chance that it has been overestimated. Because of this extremely claimant-favorable margin of error, we believe that it is reasonable to conclude that the use of this method for adjudicating radiogenic cancer claims under Part E will provide compensation in any case in which it is at least as likely as not that an employee would not have suffered cancer absent his or her employment-related exposure to radiation.

This conclusion finds further support in the

Report of the NCI-CDC Working Group to Revise the 1985 NIH Radioepidemiological Tables

(September 2003), which found that the PoC model was a viable method to adjudicate claims for radiation-related instances of cancer that appropriately summarized “the likelihood that prior radiation exposure might be causally related to cancer occurrence.” The report described the Department of Veterans Affairs' use of PoC calculated at the 99 percent credibility limit (the term used in that report for confidence interval) as “highly unlikely to exclude persons with meritorious claims. However it is likely to award many persons whose true [PoC's] are very much less than 50 percent.” For example, as noted in that report, because of the substantial margin for error established by use of the 99 percent confidence level, a cancer that is actually nine percent likely to have been caused by the alleged exposure, but for which data is limited, could yield a PoC of 82 percent under the HHS PoC guidelines.

OWCP also believes that utilizing the 50 percent PoC process for Part E is more likely to result in a scientifically valid and consistent determination process than attempting to reach a determination based on medical opinions from physicians that inevitably contain a significant speculative component. Use of the PoC guidelines for claims under both Part B and Part E allows OWCP to adjudicate the entitlement of radiogenic cancers that are potentially compensable under both Part B and Part E in a uniform manner. Any process for determining coverage of claims for radiogenic cancers that would yield inconsistent results as to whether that cancer is compensable under Parts B and E is unlikely to be understood or accepted by claimants and other stakeholders.

The commenters' argument that eligibility for a radiogenic cancer under Part E should be based on a lower than 50 percent PoC level apparently is based on their interpretation of the language of section 7385s-4(c)(1)(A), which requires a determination that it is “at least as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing” the claimed cancer. While Congress utilized different terminology to establish the test for compensation in Part E and Part B, the differences reflect the fact that Part B was intended to establish narrowly drawn tests for specific medical conditions, such as radiogenic cancer or chronic beryllium disease. Part E, on the other hand, sets forth a broad test that must be used to determine the compensability of a virtually unlimited array of illnesses potentially caused by exposure to the tens of thousands of toxic substances present at Department of Energy facilities. While there is no way to distinguish between causation and

contribution in regard to cancer related to exposure to radiation (because it is only possible to determine the statistical probability that, absent work-related exposure to radiation, the employee in question would not have incurred the cancer or cancers from which he or she suffered), Part E applies to other types of illnesses for which the concept of “contribution” may be highly relevant. Indeed, unlike the case of radiogenic cancer, it is possible to determine that toxic exposure contributed to a number of other illnesses or that other pre-existing illnesses were aggravated by toxic exposure. Therefore, the difference in the statutory language between the standard in Part B and the standard in Part E does not indicate that Part E was intended to establish a more lenient test, but can be explained by the fact that it was designed to cover a wide variety of situations and circumstances, as opposed to the more narrowly drawn Part B radiogenic cancer standard, where no difference existed between causation and contribution.

It should also be noted that the regulation specifies that the PoC model will be determinative under Part E only with respect to claims where the sole alleged condition is radiogenic cancer. When a claim for cancer under Part E cannot be accepted based on exposure to radiation alone because the PoC was determined to be less than 50 percent, the claimant is provided the opportunity to establish that the cancer was caused by a combination of exposure to radiation and exposure to one or more other toxic substances. OWCP will adjudicate those claims for cancer allegedly due to exposure to radiation combined with exposure to one or more other toxic substances using the eligibility criteria for other covered illnesses in §§ 30.230 through 30.232. As a result, no changes were made to § 30.213(c) in the final rule.

Sections 30.230, 30.231 and 30.232

One labor organization suggested that the statutory terms “aggravated,” “contributed to” and “caused” from one portion of the Part E causation standard appearing in section 7385s-4(c)(1)(A) of EEOICPA be defined in § 30.230 of the final rule so it will be “possible to determine how DOL will adjudicate claims.” However, these statutory terms have a long and settled history in workers' compensation law, and OWCP believes any attempt to further define those terms (which involve matters of administrative discretion and professional medical opinion) would only lead to increased confusion. As a result, § 30.230 has not been amended in the final rule.

Two comments from congressional representatives, three from advocacy groups and one from an individual asserted that it would be extremely difficult for claimants to satisfy their burden of proof under § 30.231 to establish both the presence of a toxic substance and the employee's exposure to the substance without the development of site exposure assessments of toxic substances. OWCP shares this concern and is committed to studying all of the available information pertaining to these sites and making publicly available a listing of the toxic substances present at such sites. The information compiled from these studies will be accepted as probative evidence in determining the eligibility of claimants, barring extraordinary and unusual circumstances, and § 30.231(b) has been modified to clarify OWCP's policies regarding this matter. However, the remainder of the suggested changes to the burden of proof described in § 30.231 have not been adopted.

One advocacy group objected to the requirement in § 30.232(a)(2) that each claimant under Part E provide a signed medical release authorizing the release of any diagnosis, medical opinion or medical records documenting the employee's alleged covered illness and that it resulted from exposure to a toxic substance. The advocacy group is concerned that in some cases such documents may no longer exist. OWCP is aware of this problem and has established procedures in § 30.113 by which a claimant can nevertheless meet this requirement through the submission of affidavits attesting to medical evidence that was contained in documents that no longer exist. However, a signed medical release is needed in all Part E claims so OWCP may thoroughly investigate the claim. Thus, the suggestion to drop this requirement was not adopted. The same advocacy group and another advocacy group suggested that the requirement contained in § 30.232(c) that a claimant establish that a covered Part E employee suffered an injury, illness, impairment or disease as a consequence of a covered illness be deleted. These commenters feel that OWCP claims examiners should have enough documentation and medical evidence in the case file to made these determinations without requiring the submission of additional medical evidence. However, the nature of these consequential conditions is that they only arise subsequent to the development of an underlying condition, thus necessitating the submission of more recent medical evidence establishing their causal relationship to an existing covered illness. Accordingly, the suggestion was not adopted in the final rule.

Section 30.300

Two comments from individuals, two from congressional representatives and one from an advocacy group suggested that OWCP use Physicians Panels to make determinations when there is a dispute with regard to issues of causation or the degree of impairment. After considering the use of Physicians Panels in the adjudication of Part E claims, OWCP decided in the interim final rule to base the formal adjudicatory and review structure for those claims on the same successful and streamlined structure that has been used for Part B claims since 2001. The use of Physicians Panels as deciding bodies for claims submitted to DOE under former Part D of EEOICPA proved to be both inefficient and extremely time-consuming. Nevertheless, OWCP will use a full range of qualified medical specialists to assist in the development of claims, especially the kind of complex cases these comments discuss. When a claim involves extreme complexity and multiple medical disciplines, OWCP may refer the claimant to a panel of physicians for a medical evaluation. Once a report is received, OWCP's adjudicatory staff will then consider it when they make a decision on the claim. OWCP continues to believe that this type of claims adjudication process provides for a more efficient and expeditious handling of medical disputes and the application of more uniform criteria to resolve such disputes. Thus, the suggested changes have not been adopted.

The same advocacy group suggested that OWCP state in the regulations the processes it will follow with respect to classified information that may be pertinent to a claim under EEOICPA, and urged that in situations where the claimant or his or her representative lacked the requisite security clearances, OWCP should ask the Ombudsman to provide a properly cleared lawyer or qualified technical expert to evaluate the factual evidence and advocate on behalf of the claimant during the claims adjudication process. OWCP is also concerned about the impact of using classified information to adjudicate claims under the Act. However, since it is not the classifying agency with respect to such information, it cannot allow greater access to the information than is currently permitted. As for the suggestion that OWCP should ask the Ombudsman to nominate or otherwise provide a person with the requisite security clearance to advocate for

claimants, the Ombudsman is not authorized to perform that function by either the statute or Secretary's Order 1-2005 (70 FR 33328), which established the Office of the Ombudsman within the Department. The Ombudsman does not have any role in the claims adjudication process administered by OWCP. Thus, the suggestions were not adopted in the final rule.

Another advocacy group suggested that the claims adjudication processes described in § 30.300 be altered to include a review by an “independent entity” like an administrative law judge. This same suggestion was made by several commenters with respect to this section as it appeared in the first interim final rule governing its administration of the Act that OWCP published on May 25, 2001 (66 FR 28948). As it noted when it subsequently published the first final rule governing its administration of EEOICPA on December 26, 2002 (67 FR 78874), OWCP believed that utilizing administrative law judges or another type of independent review body would unnecessarily complicate and delay the claims adjudication process to the detriment of claimants. The commenter did not present any new reason not previously considered by OWCP when it originally decided to retain the adjudicatory structure described in § 30.300, or any evidence of problems with it since its inception in 2001. Therefore, the suggested change to this section of the regulations was not adopted.

Sections 30.301 and 30.302

One advocacy group suggested that OWCP extend the ability to request issuance of a subpoena to include Part E claims as well as Part B claims, and that this ability should be extended to all stages of the claims adjudication process. Section 30.301 indicates that a claimant may request that a Final Adjudication Branch (FAB) reviewer issue a subpoena in connection with a claim under Part B of EEOICPA. The statutory authority underlying this section is derived from section 7384w, which only applies to claims filed under Part B; Part E does not contain a similar provision. Therefore, OWCP does not have authority to extend the ability to request a subpoena to claimants under Part E. Further, OWCP has found it to be more efficient to limit the use of subpoenas by claimants to the portion of the claims adjudication process that includes the right to request an oral hearing,

i.e.

, the portion before the FAB. OWCP claims examiners regularly assist claimants in obtaining relevant documents and information in the early development of claims under EEOICPA, and adding subpoena requests to this assistance would not appear to be either efficient or productive. Therefore, the suggested changes to § 30.301 have not been adopted.

One attorney suggested that § 30.302 be modified so that claimants will be relieved of their obligation to pay the costs associated with subpoenas they have requested when the subpoenaed witness submits evidence into the case record that is relevant to the claimant's case and where the witness failed before the hearing to provide written evidence after being requested to provide such evidence by the claimant. OWCP believes that the suggested modification erroneously presumes that there will likely be situations where a witness will refuse to provide requested evidence without issuance of a subpoena by a FAB reviewer. This has not been the experience of OWCP in other benefit programs it administers, and OWCP does not contemplate that it will occur in its future administration of Part B. Up to the present time, OWCP has not encountered significant difficulty obtaining the factual or medical evidence necessary for it to adjudicate these claims, and there is no reason to think that these sorts of difficulties will occur in the future. Therefore, the suggestion to modify § 30.302 was not adopted in the final rule.

Section 30.303

DOE commented that the 60-day period within which it was required to respond to a request from OWCP for information or documents relevant to a claim under Part E of the Act in § 30.303 was unreasonable, and noted that it would not be able to respond to such a request in a timely manner if the evidence needed to be reviewed for declassification purposes. As an alternative, DOE proposed that the standard for compliance with such a request be “as soon as possible.” While it does not dispute the validity of this concern, OWCP believes that the suggested proposal would effectively remove the time period for response from § 30.303. However, in order to accommodate DOE's belief that it requires additional time to comply with these necessary requests, OWCP has amended § 30.303(a) to provide DOE with 90 days within which to respond.

Sections 30.307 and 30.316

One attorney suggested that §§ 30.307(a) and 30.316(e) be amended to provide that a copy of the recommended decision and the final decision be sent to both the claimant and the claimant's representative. These sections currently provide that the recommended decision and final decision be sent to the claimant, unless he or she has a representative. In such a case, the recommended decision and final decision are to be sent only to the representative. OWCP believes that these suggestions have merit, and also notes that this has been the administrative practice of the program for some time. Thus, §§ 30.307(a) and 30.316(e) have been amended in the final rule to provide that OWCP will send a copy of the recommended decision and the final decision on a claim to both the claimant and the claimant's representative, if any.

Section 30.315

One attorney suggested that § 30.315 be amended to permit, at the discretion of the FAB reviewer, a postponement of a hearing if the claimant's representative provides reasonable notice that the representative has a medical reason that prevents his or her attendance at the claimant's hearing. The interim final rule permits such a postponement where the claimant is prevented from attending the hearing for medical reasons, and it is the current practice of OWCP to permit such postponements for representatives whose attendance is prevented for the same reasons. Thus, § 30.315(b) has been amended as suggested by the commenter.

Section 30.320

One attorney suggested that § 30.320(b) be amended to require the reopening of a final adverse decision on a claim if the claimant submits new evidence of a medical condition or discovers additional medical reports. The section currently requires the Director for Energy Employees Occupational Illness Compensation to a reopen a final decision on a claim if he concludes that the claimant has submitted new and material evidence with regard to either covered employment or exposure to a toxic substance, or identifies either a material change in the PoC guidelines, a material change in the dose reconstruction methods or a material addition of a class of employees to the Special Exposure Cohort. The experience of OWCP with respect to the processing and adjudicating of claims based on occupational or covered illnesses is that new medical evidence of a condition is easily obtained and, upon consideration, rarely sufficient to warrant the reversal of an earlier determination regarding a claimed condition. To permit an automatic reopening of a final decision based on such evidence would inevitably lead to

numerous frivolous reopenings and the attendant administrative inefficiencies would deprive claimants with meritorious claims of the opportunity to have those claims adjudicated in a timely manner. It should be noted, however, that claims may be reopened on the basis of new medical evidence by the Director under § 30.320(a), which permits the Director, at his discretion, to reopen a final decision at any time. For these reasons, the suggestion regarding § 30.320(b) has not been adopted.

Sections 30.400, 30.403, 30.404 and 30.405

OWCP received three comments from advocacy groups, one from an attorney and two from congressional representatives objecting to the wording in §§ 30.400, 30.403, 30.404 and 30.405 that suggested that there was no way for a claimant to administratively challenge a denial of a particular medical benefit. The wording in question was intended to describe the process that OWCP's medical billing contractor uses to inform claimants of decisions on medical bills that are submitted for payment. However, this wording incorrectly suggested that there was no administrative method by which a claimant could challenge an adverse medical billing determination by OWCP's contractor. To rectify this situation, and as suggested by the commenters, §§ 30.400, 30.403, 30.404 and 30.405 have been changed to indicate that a claimant may administratively challenge an adverse medical billing determination by utilizing the internal adjudicatory processes described in subpart D of the regulations.

Sections 30.410 and 30.411

One advocacy group asked that OWCP clarify the provisions in §§ 30.410(b) and 30.411(c) regarding disruptions of directed medical examinations. The provisions in question are intended to remind employees and their representatives that these medical examinations are under the control of medical professionals and are not, therefore, a proper forum for disputing aspects of individual claim adjudications. These physicians have been asked to conduct an examination at the request of OWCP in order to further clarify aspects of an employee's alleged medical condition, not to treat the employee, and therefore they do not have the type of ethical obligations regarding the employee that would otherwise naturally arise with a normal “doctor-patient” relationship. Since any attempt to interfere with a directed examination would disrupt the purpose of the examination, § 30.410(b) and § 30.411(c) set out the consequences of taking such actions, and have not been altered in the final rule.

This same advocacy group disagreed with § 30.411(b), which states that when OWCP finds that a conflict in the medical evidence exists, OWCP will select a third physician to conduct a referee examination that resolves such conflict. This process has been in place since the inception of OWCP's administration of Part B, and was not altered in any way with the promulgation of the interim final rule. Further, this same process has been used successfully in other benefit programs administered by OWCP. Accordingly, § 30.411(b) was not modified in the final rule.

The same advocacy group and another advocacy group criticized the absence of any “conflict of interest” provisions with respect to physicians in the interim final rule. These comments asserted that it was important that OWCP indicate that physicians involved in the claims adjudication process who submitted medical evidence upon which OWCP claims examiners would make determinations on claims would be subject to some sort of constraints regarding such matters as prior involvement with a claimant, former work for a claimant's employer, etc. OWCP agrees with the general thrust of these comments, and has added provisions to §§ 30.410 and 30.411 that indicate that physicians who perform directed medical examinations at the request of OWCP in connection with the claims adjudication process will be subject to “conflict of interest” standards devised by OWCP to ensure their compliance with ethical standards of professional conduct.

Sections 30.500 and 30.501

A total of 521 comments objecting to the definitions of “covered” child and “surviving spouse” for the purposes of Part E in § 30.500(a) were received from 502 individuals and one lay representative (several individual commenters submitted multiple comments on this issue). While the definition of a “surviving spouse” is the same one that applies to Part B claims, a “covered” child under Part E must meet the same definition of a “child” used in Part B and, as of the date of the covered Part E employee's death, be either under the age of 18, under the age of 23 and a full-time student who was continuously enrolled in one or more educational institutions since attaining the age of 18 years, or any age and incapable of self-support. These definitions merely follow, as they must, the definitions for these two terms that appear in section 7385s-3(d). Since these terms cannot be altered through the rulemaking process, the suggestions were not adopted and no changes were made to § 30.500(a).

The same lay representative and two of the same individuals also objected to the order of precedence for survivors under Part E that is set out in § 30.501(b) and argued that a surviving spouse should not be required to share an award with children of a deceased Part E employee under any circumstances. This section states that if there is a surviving spouse and at least one “covered” child of a deceased covered Part E employee who is living at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, half of the payment is made to the surviving spouse and the other half is shared equally among all “covered” children of the employee who are living at the time of payment. As was the case with the survivor definitions discussed in the preceding paragraph, the regulatory order of precedence for survivors under Part E of the Act merely tracks the statutory order of precedence contained in section 7385s-3(c)(3) of EEOICPA. Since the order of precedence for survivors under Part E cannot be modified by regulation, the suggestion was not adopted.

Section 30.505

Two advocacy groups suggested that the unified benefit payment processes for both Parts B and E described in § 30.505(a) be amended to require OWCP to issue a “partial” award of $12,500 to covered Part E employees at the time it determines that they have contracted a covered illness, and to determine the balance of any compensation due them within another six months. Unlike Part B of EEOICPA, which compensates individuals upon a finding that a covered Part B employee contracted an occupational illness, Part E monetary compensation can only be awarded if OWCP further determines that a covered Part E employee's wage-loss, impairment or death was due to his or her covered illness. Thus, this suggestion would result in the issuance of a monetary award to a claimant before OWCP has determined that the statutory entitlement criteria established by Part E have been met, and that a payment is due after any required offsets have been calculated. Shortening the monetary benefit payment processes for Part E as suggested by these two commenters would violate the explicit terms of EEOICPA, and therefore the

suggestions to change § 30.505(a) have not been adopted.

One labor organization suggested that § 30.505(d) be amended to permit a claimant to receive up to the $250,000 maximum aggregate compensation payable under Part E for both wage-loss and impairment, for each of his or her covered illnesses. As OWCP noted in the preamble discussion of this provision of the interim final rule, 42 U.S.C. 7385s-12 “limits the aggregate compensation (other than medical benefits) that OWCP may pay under Part E to all claimants for each individual whose illness or death serves as a basis for compensation or benefits under Part E to a total of $250,000. This is the only reading of the statutory language that is consistent with the statutory requirement that the computation of both impairment benefits and wage-loss benefits under [section] 7385s-2 be based upon impairment or wage-loss that is 'the result of any covered illness.' This reading is also consistent with congressional intent, as reflected in the Conference Report for Public Law 108-375, which states that the ‘maximum aggregate benefit available under [Part] E of EEOICPA is $250,000.’

See

H.R. Conf. Rep. No. 108-767, at 894 (2004).” Thus, the suggested changes have not been adopted.

Section 30.509

Two advocacy groups asked why § 30.509(c) indicates that OWCP will only make an impairment determination for a deceased Part E employee if an eligible survivor makes an election to receive the compensation of the employee as permitted by section 7385s-1(2)(B) of EEOICPA, when the Conference Report states that survivors under Part E are to receive a minimum lump-sum payment of $125,000. These comments are based on a misunderstanding of the operation of § 30.509, which describes the very limited universe of survivors who are eligible to make the election described in section 7385s-1(2)(B), and the fact that the only survivors entitled to utilize this election provision would not be entitled to survivor benefits because the election is only available to survivors of a covered Part E employee who died “from a cause other than the covered illness of the employee.” Survivors who make this election will therefore not be eligible to receive any other compensation (such as the $125,000 lump-sum payment) under the terms of section 7385s-3. Accordingly, the provision discussed in § 30.509(c) is correct, and no changes were made to this section in the final rule.

Sections 30.513 Through 30.517

One lay representative suggested that in § 30.517, OWCP should more specifically describe the circumstances under which it would decide to waive its statutory right to recover an overpayment pursuant to section 7385j-2 of EEOICPA. While § 30.513 of the interim final regulations notes the general authority of OWCP to waive recovery of an overpayment of EEOICPA benefits, §§ 30.514 through 30.517 elaborate on that authority with a substantial amount of detail. In light of the variety of factual circumstances and fairness considerations that may apply in any specific case, it is not possible to identify particular circumstances rather than general principles concerning how this authority is to be exercised. Therefore, since §§ 30.513 through 30.517 in the interim final regulations adequately identify the standards that OWCP will use to make these determinations without depriving OWCP of sufficient flexibility to administer this aspect of the program, the suggested changes have not been adopted.

Section 30.600

One individual suggested that § 30.600(b) make it clearer that a claimant can grant a person a “power of attorney” to act on his or her behalf, and that such person can then designate a representative to pursue the claim under EEOICPA. OWCP believes there is merit in this suggestion. Thus, additional language was added to § 30.600(b) to clarify that a person who has been granted a power of attorney by a claimant under EEOICPA may designate a representative to pursue that claim before OWCP. Also, one attorney suggested that OWCP change § 30.600(c)(2) to allow an attorney or representative to complete, but not sign, a Form EN-20. OWCP believes that this suggestion has merit, and § 30.600(c)(2) has been amended as requested.

Section 30.603

One attorney suggested that the 10 percent limit for attorney fees for filing objections to a recommended decision should apply to the amount of the lump-sum awarded in the final decision. The interim final rule currently applies this limit to the amount by which the lump-sum award is

increased

as a result of the objections, and is consistent with the mandate in section 7385s-9 to limit such fees in Part E cases in the same manner as Part B cases. Since Part B claimants either receive a full lump-sum award or no award at all, successful objections to a recommended decision provide a claimant with an “increased” lump-sum award equal to the entire amount payable under Part B. Section 30.603(b)(2) in the interim final rule merely applies this same principle to Part E cases as required by the explicit terms of the Act. Since lump-sum awards to covered Part E employees may vary according to their level of impairment and the extent of their wage-loss, there may be instances where an objection to a recommended decision proposing to award benefits under Part E may result in a final decision awarding greater benefits. In such a case, the gain to the covered Part E employee from the filing of the objection will not be the entire lump-sum award; the gain will the difference between the lump-sum payment and the amount proposed in the recommended decision. To be consistent with Part B, as required by the statute, the attorney fees under Part E have to be limited to the difference in lump-sum amounts. Thus, the suggested change has not been adopted.

This attorney and two other attorneys also objected to the provision in § 30.603(b)(1) that does not permit a representative to charge a two percent fee unless he or she was retained prior to the initial filing of the claim. This provision, however, is based on the limitation contained in 42 U.S.C. 7385g(b)(1), which states that a representative may only charge a two percent fee “for the filing of an initial claim for payment of lump-sum compensation. * * *” OWCP believes that it would violate the statute to permit a representative to charge a fee of two percent of the lump-sum award if the representative was retained after the claim was filed. One of these two other attorneys also suggested that the term “initial claim” be defined to include the filing of amended claim forms, the submission of additional documents or data, or the reopening of the claim following the issuance of a final decision by the FAB; in the alternative, he also suggested that the limitations described in the interim final rule not apply to claims that were filed prior to the effective date of that rule,

i.e.

, June 8, 2005. OWCP believes that an expansive definition of the term “initial claim” would be inconsistent with the plain meaning of the statute, which has not changed in this regard since section 7385g was amended on December 28, 2001. For this same reason, OWCP also believes that there would be no justification for applying the fee limitations described in § 30.603 only to claims filed on or after June 8,

2005. Thus, none of these suggested changes were adopted in the final rule.

Section 30.609

Two advocacy groups disagreed with the requirement in § 30.609 that claimants must report (for offset purposes) any payments that they receive due to medical malpractice resulting from treatment of their occupational illness or covered illness. Such medical malpractice payments have as their genesis exposures for which compensation is payable under Part B or Part E of EEOICPA. Under section 7385 of EEOICPA, benefits payable under Part B or Part E must be offset to reflect these types of payments. Thus, OWCP must be informed of these types of payments so it can perform the statutorily mandated offset of EEOICPA benefits, and the suggestion to eliminate this section has not been adopted in the final rule.

Section 30.626

One lay representative and five individuals objected to § 30.626, which describes the required coordination of payments under Part E of EEOICPA with benefits from state workers' compensation programs for the same covered illness or illnesses. However, OWCP is required to coordinate Part E benefits in this manner by section 7385s-11 of the Act. Thus, the suggestion to eliminate this section has not been adopted.

Sections 30.801, 30.805, 30.806 and 30.815

One individual suggested that § 30.801 indicate that compensation will be provided to employees who have suffered occasional days of lost pay due to their covered illnesses. However, Part E is not a program that provides compensation for

any

wage-loss, regardless of amount, that a covered Part E employee may experience due to his or her covered illness. Instead, Part E only provides compensation under a specific formula in section 7385s-2(a)(2)(A) based on a qualifying amount of wage-loss sustained in a given calendar year, and this formula cannot be altered in this final rule. Thus, the suggestion has not been adopted.

One labor organization asserted that it is more difficult for employees who worked intermittently at DOE facilities to establish their average annual wage and their alleged calendar years of wage-loss through reliance on wage data received from the Social Security Administration, and that this will result in employees having to use the methods of § 30.806 to convince OWCP to determine a different average annual wage and/or the extent of compensable calendar years of wage-loss than it determined using § 30.805. However, the labor organization did not put forward any discernable proposal to address the purported problem it raised in its comment. While it is possible that some employees may incur difficulties in securing the type of records described as acceptable to OWCP in § 30.806, these difficulties alone should not relieve them of their burden to produce records that show a level of wage-loss sufficient to make them eligible for an award. OWCP claims examiners are instructed to accept tax returns, pay stubs, union records and pension records as evidence of earnings. In addition, claims examiners can request earning records from employers. Therefore, no change has been made to § 30.806 in the final rule. However, because of these concerns, § 30.805 has been amended in the final rule to more precisely define the term “wages.” Another labor organization asserted that some occupations are more likely to be affected by the business cycle than others, and asked that the wages of employees in these occupations be determined by looking to the average wages of their “peer group” rather than to their own individual wages. OWCP does not believe that adjustments for fluctuations in demand for labor in certain occupations can be made fairly or efficiently, nor does it believe that it has the authority to make this type of change to the statutory formulae for determining these matters by regulation. As a result, this suggested change has also not been adopted.

One individual suggested a stylistic change for the wording of § 30.815(b), which he felt was too confusing. Section 30.815(b) is merely intended to inform readers that in most situations, OWCP will determine the number of compensable years of wage-loss in accordance with the procedures described in §§ 30.800 through 30.811. The suggested change is not substantive in nature and would be, in OWCP's opinion, more confusing than the language that currently appears in § 30.815(b). Therefore, the suggested change to this section has not been adopted in the final rule.

Section 30.901

One labor organization questioned OWCP's ability to make the type of apportionment determinations described in § 30.901(a) of the interim final rule and asserted that there was no reasoned basis for allocating the cause of a permanent impairment of an organ or body function among both compensable and non-compensable exposures. This provision was based on the somewhat ambiguous language of section 7385s-2(a)(1)(A) of the Act, which can be read in such a way as to require the apportionment described in § 30.901(a) of the interim final rule. However, after carefully considering both the dearth of support for such apportionments in the medical literature and the practical difficulties that claims examiners would be faced with if they were required to make these particular types of determinations, OWCP agrees with the commenter and has decided to interpret the statutory provision in question as not requiring such an apportionment. Thus, OWCP has modified § 30.901(a) in the final rule to remove this requirement. Conforming changes have also been made to §§ 30.901(d), 30.902, and 30.908(b) and (c).

One lay representative, four individuals and the same labor organization also criticized the description of the criteria for physicians to perform impairment evaluations set out in § 30.901(b), and suggested that OWCP modify that description to make the criteria less restrictive so as to increase the potential pool of physicians who can perform impairment evaluations acceptable to OWCP. After considering several different potential criteria since the issuance of the interim final rule, OWCP believes that it has developed criteria that will satisfy the commenters' concern that there will be few physicians who meet the criteria in a given locality, or that claimants will not be able to use their local physicians to perform the testing and measurements upon which an impairment evaluation under Part E can be performed by a physician who meets the criteria. As changed, these criteria will now provide that a physician has to establish (to OWCP's satisfaction) that he or she possesses knowledge and experience in using the American Medical Association's

Guides to the Evaluation of Permanent

Impairment (AMA's

Guides

) and/or possesses the requisite professional background and work experience to conduct acceptable impairment evaluations. Further, while a claimant's local physician may not be able to satisfy all of the criteria described in § 30.901(b) and perform the impairment evaluation itself, the claimant can still elect to have such a physician perform the underlying objective testing and other procedures that another physician who does satisfy the criteria could rely upon in arriving at an evaluation of his or her impairment. Since OWCP has changed the policy to which the commenters

objected, no changes were made to § 30.901(b) in the final rule.

Sections 30.905 and 30.906

One individual objected to the provision in § 30.905(b)(1) that only impairment evaluations performed by physicians who meet the criteria identified by OWCP will be considered probative. The comment suggests that impairment evaluations performed by physicians of the Radiation Exposure Screening and Education Program (RESEP) that is administered by the Health Resources and Services Administration within HHS be considered probative under Part E of EEOICPA. OWCP has no objection to claimants submitting impairment evaluations performed by a RESEP physician, so long as that physician meets the qualifications set forth by OWCP. The same would be true for physicians who are affiliated with other government-sponsored health clinics. Not all physicians, however, have the necessary training to perform impairment evaluations (as noted above, claimants can utilize any physician to perform the testing and measurements upon which an impairment evaluation can be performed by a physician who meets OWCP's criteria). Thus, OWCP must put into place certain criteria to identify those physicians who are qualified to perform impairment evaluations upon which it can base its ratings. As a result, no changes to § 30.905(b)(1) were made in the final rule. Two other individuals objected to the requirement found in § 30.905(b)(2) that an impairment evaluation must have been performed within one year of its submission to OWCP for it to be considered probative in determining the permanent impairment of a covered Part E employee and suggested that this requirement be deleted. OWCP does not find any merit to this objection because the Act requires OWCP to determine the minimum impairment rating of the employee as of the time it is adjudicating the claim for the award. In light of this requirement, OWCP believes that it is reasonable to insist that the rating be based on an impairment evaluation that is no more than one year old. Two advocacy groups also suggested that this same requirement be deleted because covered Part E employees with previous temporary impairments from which they have recovered would not receive compensation. OWCP believes that the reasoning behind these latter comments ignores the mandate in the Act to compensate covered Part E employees for their permanent impairment rather than their temporary impairment. Thus, the suggestions to delete the requirement in § 30.905(b)(2) were not adopted.

Two attorneys suggested that § 30.906 be amended to provide that OWCP will pay for the cost of any additional impairment evaluation if such impairment evaluation increases the minimum impairment rating. In the interim final rule, this section states that OWCP will pay for one evaluation if it meets the criteria set forth in § 30.905(b), and that it will also pay for any additional impairment evaluations that it directs the employee to undergo (and reimburse the employee for reasonable expenses, as defined in the rule, that are associated with such an evaluation). OWCP is not persuaded that there is a reasonable basis for paying for additional impairment evaluations beyond those already described in § 30.906, and therefore the suggestion was not adopted in the final rule.

Sections 30.907 and 30.908

Two advocacy groups asserted that § 30.907(b) did not provide a process whereby a dispute regarding a covered Part E employee's impairment evaluation could be resolved. While § 30.907(b) in the interim final rule noted that the procedures for “directed medical examinations” set out in §§ 30.410 and 30.411 of the regulations applied to these types of disputes, OWCP acknowledges that it did not explicitly note that such procedures include the process by which OWCP resolves medical disputes in general. Therefore, in order to make this provision more clear, § 30.907(b) has been modified slightly in the final rule to explicitly note that OWCP will resolve medical disputes regarding impairment through the “referee examination” process set out in § 30.411.

One labor organization objected to the provisions in § 30.908 requiring that medical evidence of impairment submitted to the FAB in opposition to the impairment evaluation that was relied upon in a recommended decision conform to the requirements set out in § 30.905(b) in order to be afforded any probative value, and noted that claimants have the burden of proving that the new medical evidence has greater probative value than the impairment evaluation relied upon in the recommended decision. Requirements of this sort that set out minimum standards for new evidence and the assumption of the burden of proof when challenging a determination made below are standard features of any adjudicative system, and are necessary to conserve scarce administrative resources. OWCP does not agree that their use in this context is either unduly burdensome on claimants or inherently unfair in a system such as Part E. Therefore, no changes were made to § 30.908 as a result of the comment.

Section 30.910

Two comments from congressional representatives, four from advocacy groups and two from individuals objected to the provision in § 30.910(a) of the interim final rule that an impairment that cannot be assigned a numerical percentage using the AMA's

Guides

will not be included in a covered Part E employee's impairment rating, and noted that the Conference Report for Public Law 108-375 suggests that for those illnesses for which the AMA's

Guides

do not provide a method to assign a numerical percentage, the Department should devise another method to determine the amount of an impairment award to a covered Part E employee.

See

H.R. Conf. Rep. No. 108-767, at 893 (2004). However, as the Department pointed out when it promulgated § 30.910, the plain language of section 7385s-2(b) requires OWCP to determine the amount of an impairment award to a covered Part E employee in accordance with the AMA's

Guides

and does not contain the exception referred to in the Conference Report for “an illness for which the [AMA's

Guides

] do not provide an impairment rating. * * *” It should be noted that this suggestion appears to be based on the assumption that the AMA's

Guides

cannot be used to determine an impairment rating for an illness unless they explicitly provide a method to evaluate that particular illness. However, because the

Guides

evaluate the impairment of organs and body functions rather than illnesses

per se

, even a newly identified illness can be evaluated using the

Guides

so long as its effects on those organs and/or body functions are known and quantifiable.

As noted above, section 7385s-2(b) of EEOICPA requires that impairment ratings “shall be determined in accordance with the American Medical Association's

Guides to the Evaluation of Permanent Impairment

.” The discussion of mental impairments that do not originate from documented physical dysfunctions of the nervous system in Chapter 14 (Mental and Behavioral Disorders) of the AMA's

Guides

states that “there are no precise measures of impairment in mental disorders. The use of percentages implies a certainty that does not exist.” Chapter 14 then explains that the authors of the current (fifth) edition of

the AMA's

Guides

are “unaware of data that show the reliability” of any percentages for these particular types of impairments and that “the Committee on Disability and Rehabilitation of the American Psychiatric Association advised

Guides

contributors against the use of percentages in the chapter on mental and behavioral disorders of the fourth edition, and that remains the opinion of the authors of the present chapter.” In support of their decision not to assign numerical percentages to mental impairments that do not originate from documented physical dysfunctions of the nervous system, the authors point out that “[n]o available empirical evidence supports any method for assigning a percentage of impairment of the whole person” to these disorders. Since the AMA's

Guides

clearly takes the position that there is no basis to calculate numerical percentages of mental impairment due to mental disorders, attempting to do so by devising a rating mechanism independent of the AMA's

Guides

would violate EEOICPA's requirement that impairment ratings be determined “in accordance with” the AMA's

Guides

. Thus, § 30.910(b) indicates that these types of mental impairments will not be included in an impairment rating; no change was made to this section in the final rule.

Section 30.911

Two comments from individuals, two from congressional representatives, two from advocacy groups and two from attorneys questioned the appropriateness of the provision in § 30.911(a) in light of the progressive nature of the covered illnesses that would be compensable under Part E of EEOICPA. OWCP's intent in the interim final rule was to apply the requirement that an individual reach “maximum medical improvement” in order for an impairment rating to be determined in a manner that is appropriate for the conditions covered by EEOICPA. OWCP recognizes that many of these covered illnesses are progressive, and that many employees may find themselves in a situation where their accepted condition is not likely to improve but can be expected to gradually deteriorate. The intent in the interim final rule was to allow for minimum impairment ratings to be calculated and compensated in such circumstances. However, since the wording of § 30.911(a) in the interim final rule did not convey this intent as clearly as it could have, this provision has been modified slightly in the final rule by changing the word “change” to “improve” in the final rule.

II. Miscellaneous Comments

Several of the 533 timely comments the Department received raised issues that either were not addressed in the interim final regulations or involved extraneous matters. The Department's analysis of these miscellaneous comments follows:

The Ombudsman

OWCP received one comment from an advocacy group pointing out that the interim final regulations did not address the role and functions of the Ombudsman provided for in section 7385s-15 of EEOICPA. However, this omission was intentional and required by the terms of section 7385s-15(d), which requires that the Ombudsman be independent “from other officers and employees of the Department [of Labor] engaged in activities relating to the administration of the provisions of” Part E of EEOICPA. Instead, the role and the functions of the Ombudsman are set out in Secretary's Order 1-2005. Therefore, the final rule also does not address either the role or the functions of the Ombudsman.

The Rulemaking Process

OWCP received one comment from an attorney on a specific aspect of the rulemaking process. Without identifying any particular provision of the regulations, the commenter opined that at least some of them would not be comprehensible to some members of the public and should be rewritten in “plain English.” OWCP acknowledges that some of the regulations for Part E involve complex medical matters or complicated arithmetic calculations. However, while these concepts can be difficult to comprehend, OWCP went to great lengths in an effort to ensure that the corresponding regulations in subparts I and J were written in a clear and understandable manner. Since the commenter neither identified a particularly incomprehensible provision of the regulations nor provided any suggested improvements, no additional changes were made to the regulations based on this comment.

Coverage

One DOE contractor and four individuals made suggestions about which workers or survivors should be covered by Part E of EEOICPA. However, the Act mandates the categories of workers and survivors covered under Part B and Part E and the regulations cannot be changed to either expand or restrict these categories unless the Act is amended. Therefore, the suggested changes have not been made in this final rule.

III. Publication in Final

The Department of Labor has determined, pursuant to 5 U.S.C. 553(b)(B), that good cause exists for waiving public comment on this final rule with respect to the following changes: (1) Corrections of typographical errors; and (2) minor wording changes and clarifications that do not affect the substance of the regulations. For these changes, publication of a proposed rule and solicitation of comments would be neither necessary nor fruitful.

IV. Statutory Authority

Section 7384d of EEOICPA provides general statutory authority, which E.O. 13179 allocates to the Secretary, to prescribe rules and regulations necessary for administration of Part B of the Act. Section 7385s-10(e) also provides the Secretary with the general statutory authority to prescribe regulations necessary for administration of Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide the specific authority regarding medical treatment and care, including authority to determine the appropriateness of charges. The Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701

et seq.

), authorizes imposition of interest charges and collection of debts by withholding funds due the debtor.

V. Paperwork Reduction Act

This final rule contains information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501

et seq.

The requirements set out in §§ 30.401, 30.404, 30.420, 30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule were both submitted to and approved by OMB under the PRA in OMB Control Nos. 1215-0054 (expires June 30, 2007), 1215-0055 (expires October 31, 2009), 1215-0137 (expires March 31, 2007), 1215-0144 (expires October 31, 2009), 1215-0176 (expires January 31, 2007), 1215-0193 (expires March 31, 2007) and 1215-0194 (expires March 31, 2007). The requirements in §§ 30.100, 30.101, 30.102, 30.103, 30.111, 30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215, 30.221, 30.222, 30.226, 30.231, 30.232, 30.415, 30.416, 30.417, 30.505, 30.620, 30.806, 30.905 and 30.907of this rule were also both submitted to and approved by OMB under the PRA in OMB Control No. 1215-0197 (expires August 31, 2007).

Following publication of this final rule, the Department plans to seek OMB approval of two new information collections under the PRA and will issue 60-day

Federal Register

notices

seeking public comment on (1) a collection that will annually request updated information relating to state workers' compensation benefits received by EEOICPA Part E beneficiaries; and (2) a collection annually requesting verifying information on state workers' compensation benefits from state authorities. These collections will implement the Department's responsibilities under section 7385s-11 of EEOICPA.

VI. Executive Order 12866

This rule is being treated as a “significant regulatory action,” within the meaning of E.O. 12866, because it is “economically significant” as defined by section 3(f)(1) of that Order. The payment of the benefits provided for by EEOICPA through the program administered pursuant to this regulatory action has an annual effect on the economy of $100 million or more. However, this rule does not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, the environment, public health or safety, or State, local, or tribal governments or communities, as defined by section 3(f)(1) of E.O. 12866. This rule is also a “significant regulatory action” because it meets the criterion of section 3(f)(4) of that Order in that it raises novel or legal policy issues arising out of the legal mandate established by EEOICPA.

Based on the factors and assumptions set forth below, DOL's estimate of the aggregate cost of benefits and administrative expenses of this regulatory action implementing Part B and Part E of EEOICPA is, in millions of dollars:

FY2007

FY2008

FY2009

FY2010

FY2011

Admin

$162

$163

$147

$127

$111

Benefits

1,123

861

752

656

579

The Department's estimate of the benefits to be paid pursuant to EEOICPA and of the administrative costs of providing those benefits is based on program experience to date, data collected from other federal agencies, assumptions about the incidence of cancer, covered beryllium disease, chronic silicosis and other covered illnesses in the claimant population, life expectancy tables, dose reconstruction acceptance rates, Physicians Panel acceptances under the former Part D of the Act, the anticipated distribution of benefit amounts, and its experience in estimating administrative and medical costs of workers' compensation programs. The Department's benefit estimates are not based on any projections regarding the number of future additions to the Special Exposure Cohort (SEC).

For Part B benefits, estimates for cancer claims are based on the actual number of claims received by OWCP, the anticipated number of future claims, and the historical approval rates for both SEC and non-SEC claims. Part B benefit estimates for beryllium exposure are based on the actual number of such claims received by OWCP, anticipated future claims, and the historical approval rate. Benefit estimates for chronic silicosis are based on similar factors. Benefit estimates for claims that require receipt of an award from DOJ under section 5 of RECA are based on historical claim receipts and include the amounts awarded by DOJ under RECA but paid from the compensation fund. Medical benefits for living employees eligible under Part B are computed using an average of $10,000 per year.

Part E benefit estimates for Part E cases are based on cases received by OWCP to date, future expected receipts, and the average Part B approval rate. The benefit amounts for Part E are calculated based on an estimated distribution of approved claims with varying degrees of compensable impairment and wage-loss, with an average benefit amount of $135,000 and average medical costs of $10,000 per year for each eligible living employee. Additional Part E benefits for individuals who are determined to be eligible RECA section 5 uranium workers are computed based upon the number of such claims received to date and the expected number of such claims in the future.

Administrative cost estimates were developed based upon OWCP's experience to date in administering Part B and the other workers' compensation programs that fall within its area of administrative responsibility, using calculations of the number of incoming claims and forecasting the necessary full-time equivalents and other resources that are necessary to efficiently administer the program.

No more extensive economic impact analysis of this rule is necessary because this regulatory action only addresses the transfer of funds from the federal government to individuals who qualify under EEOICPA and to providers of medical services in that program. This regulatory action has no affect on the functioning of the economy and private markets, on the health and safety of the general population, or on the natural environment. In addition, because this rule implements a statutory mandate, there are no feasible alternatives to this regulatory action. Finally, to the extent that policy choices have been made in interpreting statutory terms, those choices have no significant impact on the cost of this regulatory action. Such policy choices may affect who will be entitled to receive benefits (such as covered Part E employees with unratable impairments due to a covered illness), but will not have a significant impact on the number of eligible Part B or E beneficiaries or the level of benefits to which they are entitled.

OMB has reviewed the rule for consistency with the President's priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801

et seq.

), the Department will report to Congress promulgation of this final rule prior to its effective date. The report will state that the Department has concluded that this final rule is a “major rule” because it will likely result in an annual effect on the economy of $100 million or more.

VIII. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531

et seq.

) directs agencies to assess the effects of federal regulatory actions on state, local, and tribal governments, and the private sector, “other than to the extent that such regulations incorporate requirements specifically set forth in law.” For purposes of the Unfunded Mandates Reform Act, this final rule does not include any federal mandate that may result in increased annual expenditures in excess of $100 million by state, local or tribal governments in the aggregate, or by the private sector.

IX. Regulatory Flexibility Act

The Department believes that this rule has “no significant economic impact upon a substantial number of small entities” within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601

et seq.

). The provisions of this rule that apply cost-control measures to payments for medical expenses are the only ones that could have a monetary effect on small businesses, and have been in effect since OWCP began administration of Part B of EEOICPA on July 31, 2001. The economic effect of these cost-control measures are not significant for a substantial number of those businesses who participate in the program under Parts B and E of EEOICPA, however, because no one business bills a significant amount to OWCP for EEOICPA-related services, and the monetary effect on bills that are submitted, while a worthwhile savings for the Government in the aggregate, are not significant for any individual business affected.

The cost-control provisions are: (1) A set schedule of maximum allowable fees for professional medical services; (2) a set schedule for payment of pharmacy bills; and (3) a prospective payment system for hospital inpatient services. The methodologies used for the first two of these provisions were explained in the text of the preamble to two earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 28948) and 2002 (67 FR 78874), which essentially adopted payment systems that are prevalent in the industry. Their adoption for use in connection with OWCP's administration of Part E of the Act results in continued efficiencies for the Government and providers. The Government benefits because OWCP did not develop new cost containment measures for Part E claims, but rather adopted existing and well-recognized measures that were already in place. The providers benefit because submitting a bill and receiving a payment is almost the same as submitting it to Medicare, a program with which they are already familiar and have existing systems in place for billing—they do not have to incur unnecessary administrative costs to learn a new process because the EEOICPA bill process for Part E claims is identical to the bill process that applies to Part B claims, and is not readily distinguishable from the Medicare billing process. Similarly, pharmacies are familiar with billing through clearing houses and having their charges subject to limits by private insurance carriers. By adopting private sector uniform billing requirements and a familiar cost control methodology, OWCP has not altered the billing environment with which pharmacies are already familiar. The methods chosen, therefore, represent systems familiar to the providers. The third of these three provisions does not have an effect on a substantial number of “small entities” under Small Business Administration (SBA) standards, since most hospitals providing services for medical conditions covered by EEOICPA have annual receipts that exceed the set maximum.

The implementation of these cost-control methods does not have a significant effect on any single medical professional or pharmacy since they are already used by Medicare, CHAMPUS, and the Departments of Labor and Veterans Affairs, among Government entities, and by private insurance carriers. In actual terms, the amount by which these provider bills are reduced does not have a significant impact on any one small entity since these charges are currently being processed by other payers applying similar cost-control provisions. The costs to providers whose charges are reduced also are relatively small because EEOICPA bills simply do not represent a large share of any single provider's total business. Since the small universe of potential claimants is spread across the United States and this bill processing system covers only those employees who have sustained an occupational illness or a covered illness and require medical treatment on or after October 30, 2000, the number of bills submitted by any one small entity which may be subject to these provisions is likely to be very small. Therefore, the “cost” of this rule to any one pharmacy or medical professional is negligible. On the other hand, OWCP reaps substantial aggregate cost savings that benefit both OWCP (by strengthening the integrity of the program) and the taxpayers to whom the costs of the program are eventually charged.

The Assistant Secretary for Employment Standards has certified to the Chief Counsel for Advocacy of the SBA that this rule does not have a significant impact on a substantial number of small entities. The factual basis for this certification has been provided above. Accordingly, no regulatory impact analysis is required.

X. Executive Order 12988 (Civil Justice Reform)

This final rule has been drafted and reviewed in accordance with E.O. 12988 and will not unduly burden the federal court system. While Part B of EEOICPA does not provide any specific procedures that claimants under that Part must follow in order to seek review of decisions on their claims, Part E specifies that claimants under that Part have 60 days to file petitions for review of decisions on their claims in the United States district courts, and mandates the use of an “arbitrary and capricious” standard of review. It is reasonably likely that some EEOICPA claimants will seek review of adverse decisions in United States district courts pursuant to 28 U.S.C. 1331 (for claims under Part B of EEOICPA) or the EEOICPA itself (for claims under Part E). This rule should help minimize the burden placed on courts by litigation seeking to challenge decisions under EEOICPA by providing claimants with an opportunity to seek administrative review of adverse decisions prior to resorting to the court system, and by providing a clear legal standard for affected conduct. The rule has been reviewed carefully to eliminate drafting errors and ambiguities.

XI. Executive Order 13045 (Protection of Children From Environmental, Health Risks and Safety Risks)

In accordance with E.O. 13045, the Department has evaluated the environmental health and safety effects of this rule on children. The Department has determined that the final rule will have no effect on children.

XII. Executive Order 13132 (Federalism)

The Department has reviewed this final rule in accordance with E.O. 13132 and has determined that it does not have any “federalism implications.” The final rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

XIII. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use)

In accordance with E.O. 13211, the Department has evaluated the effects of this final rule on energy supply, distribution or use, and has determined that this rule is not likely to have a significant adverse effect on them.

XIV. Submission to Congress and the General Accountability Office

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the Department will submit to each House of the Congress and to the Comptroller General

a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this notice. The report will note that this rule constitutes a “major rule” as defined by 5 U.S.C. 804(2).

XV. Catalog of Federal Domestic Assistance Number

This program is listed in the Catalog of Federal Domestic Assistance as No. 17.310.

List of Subjects

20 CFR Part 1

Organization and functions (Government agencies).

20 CFR Part 30

Administrative practice and procedure, Cancer, Claims, Kidney diseases, Leukemia, Lung diseases, Miners, Radioactive materials, Tort claims, Underground mining, Uranium, Workers' compensation.

Text of the Rule

For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended as follows:

Subchapter A—Organization and Procedures

1. Part 1 is revised to read as follows:

PART 1—PERFORMANCE OF FUNCTIONS

Sec.

1.1

Under what authority was the Office of Workers' Compensation Programs established?

1.2

What functions are assigned to OWCP?

1.3

What rules are contained in this chapter?

1.4

Where are other rules concerning OWCP functions found?

1.5

When was the former Bureau of Employees' Compensation abolished?

1.6

How were many of OWCP's current functions administered in the past?

Authority:

5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.

§ 1.1

Under what authority was the Office of Workers' Compensation Programs established?

The Assistant Secretary of Labor for Employment Standards, by authority vested in him by the Secretary of Labor in Secretary's Order No. 13-71 (36 FR 8755), established in the Employment Standards Administration an Office of Workers' Compensation Programs (OWCP) by Employment Standards Order No. 2-74 (39 FR 34722). The Assistant Secretary subsequently designated as the head thereof a Director who, under the general supervision of the Assistant Secretary, administers the programs assigned to OWCP by the Assistant Secretary.

§ 1.2

What functions are assigned to OWCP?

The Assistant Secretary of Labor for Employment Standards has delegated authority and assigned responsibility to the Director of OWCP for the Department of Labor's programs under the following statutes:

(a) The Federal Employees' Compensation Act, as amended and extended (5 U.S.C. 8101

et seq.

), except 5 U.S.C. 8149 as it pertains to the Employees' Compensation Appeals Board.

(b) The War Hazards Compensation Act (42 U.S.C. 1701

et seq.

).

(c) The War Claims Act (50 U.S.C. App. 2003).

(d) The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384

et seq.

), except activities, pursuant to Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000, assigned to the Secretary of Health and Human Services, the Secretary of Energy and the Attorney General.

(e) The Longshore and Harbor Workers' Compensation Act, as amended and extended (33 U.S.C. 901

et seq.

), except: 33 U.S.C. 919(d) with respect to administrative law judges in the Office of Administrative Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board; and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant Secretary of Labor for Occupational Safety and Health.

(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901

et seq.

).

§ 1.3

What rules are contained in this chapter?

The rules in this chapter are those governing the OWCP functions under the Federal Employees' Compensation Act, the War Hazards Compensation Act, the War Claims Act and the Energy Employees Occupational Illness Compensation Program Act of 2000.

§ 1.4

Where are other rules concerning OWCP functions found?

(a) The rules of the OWCP governing its functions under the Longshore and Harbor Workers' Compensation Act and its extensions are set forth in subchapter A of chapter VI of this title.

(b) The rules of the OWCP governing its functions under the Black Lung Benefits Act program are set forth in subchapter B of chapter VI of this title.

(c) The rules and regulations of the Employees' Compensation Appeals Board are set forth in chapter IV of this title.

(d) The rules and regulations of the Benefits Review Board are set forth in Chapter VII of this title.

§ 1.5

When was the former Bureau of Employees' Compensation abolished?

By Secretary of Labor's Order issued September 23, 1974 (39 FR 34723), issued concurrently with Employment Standards Order 2-74 (39 FR 34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32 FR 12979), which had delegated authority and assigned responsibility for the various workers' compensation programs enumerated in § 1.2, except the Black Lung Benefits Program and the Energy Employees Occupational Illness Compensation Program not then in existence, to the Director of the former Bureau of Employees' Compensation.

§ 1.6

How were many of OWCP's current functions administered in the past?

(a) Administration of the Federal Employees' Compensation Act and the Longshore and Harbor Workers' Compensation Act was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the Commission was abolished and its functions were transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation within such Agency. By Reorganization Plan No. 19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 1271), said Bureau was transferred to the Department of Labor (DOL), and the authority formerly vested in the Administrator, Federal Security Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to make from time to time such provisions as he shall deem appropriate, authorizing the performance of any of his functions by any other officer, agency, or employee of the DOL.

(b) In 1972, two separate organizational units were established within the Bureau: an Office of Workmen's Compensation Programs (37 FR 20533) and an Office of Federal Employees' Compensation (37 FR 22979). In 1974, these two units were

abolished and one organizational unit, the Office of Workers' Compensation Programs, was established in lieu of the Bureau of Employees' Compensation (39 FR 34722).

2. Subchapter C consisting of part 30 is revised to read as follows:

Subchapter C—Energy Employees Occupational Illness Compensation Program Act of 2000

PART 30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

Subpart A—General Provisions

Introduction

Sec.

30.0

What are the provisions of EEOICPA, in general?

30.1

What rules govern the administration of EEOICPA and this chapter?

30.2

In general, how have the tasks associated with the administration of the EEOICPA claims process been assigned?

30.3

What do these regulations contain?

Definitions

30.5

What are the definitions used in this part?

Information in Program Records

30.10

Are all OWCP records relating to claims filed under EEOICPA considered confidential?

30.11

Who maintains custody and control of claim records?

30.12

What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?

Rights and Penalties

30.15

May EEOICPA benefits be assigned, transferred or garnished?

30.16

What penalties may be imposed in connection with a claim under the Act?

30.17

Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?

Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims

Filing Claims for Benefits Under EEOICPA

30.100

In general, how does an employee file an initial claim for benefits?

30.101

In general, how is a survivor's claim filed?

30.102

In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?

30.103

How does a claimant make sure that OWCP has the evidence necessary to process the claim?

Verification of Alleged Employment

30.105

What must DOE do after an employee or survivor files a claim?

30.106

Can OWCP request employment verification from other sources?

Evidence and Burden of Proof

30.110

Who is entitled to compensation under the Act?

30.111

What is the claimant's responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?

30.112

What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?

30.113

What are the requirements for written medical documentation, contemporaneous records, and other records or documents?

30.114

What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?

Special Procedures for Certain Radiogenic Cancer Claims

30.115

For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?

Subpart C—Eligibility Criteria

General Provisions

30.200

What is the scope of this subpart?

Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA

30.205

What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B?

30.206

How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?

30.207

How does a claimant prove a diagnosis of a beryllium disease covered under Part B?

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA

30.210

What are the criteria for eligibility for benefits relating to radiogenic cancer?

30.211

How does a claimant establish that the employee has or had contracted cancer?

30.212

How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility?

30.213

How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility?

30.214

How does a claimant establish that the employee is a member of the Special Exposure Cohort?

30.215

How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?

Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA

30.220

What are the criteria for eligibility for benefits relating to chronic silicosis?

30.221

How does a claimant prove exposure to silica in the performance of duty?

30.222

How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease?

Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA

30.225

What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees?

30.226

How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease?

Eligibility Criteria for Other Claims Under Part E of EEOICPA

30.230

What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA?

30.231

How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?

30.232

How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?

Subpart D—Adjudicatory Process

30.300

What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions?

30.301

May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?

30.302

Who pays the costs associated with subpoenas?

30.303

What information may OWCP request in connection with a claim under Part E of EEOICPA?

Recommended Decisions on Claims

30.305

How does OWCP determine entitlement to EEOICPA compensation?

30.306

What does the recommended decision contain?

30.307

To whom is the recommended decision sent?

Hearings and Final Decisions on Claims

30.310

What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?

30.311

What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?

30.312

What will the FAB do if the claimant objects to the recommended decision but does not request a hearing?

30.313

How is a review of the written record conducted?

30.314

How is a hearing conducted?

30.315

May a claimant postpone a hearing?

30.316

How does the FAB issue a final decision on a claim?

30.317

Can the FAB request a further response from the claimant or return a claim to the district office?

30.318

Can the FAB consider objections to HHS's reconstruction of a radiation dose or to the guidelines OWCP uses to determine if a claimed cancer was at least as likely as not related to employment?

30.319

May a claimant request reconsideration of a final decision of the FAB?

Reopening Claims

30.320

Can a claim be reopened after the FAB has issued a final decision?

Subpart E—Medical and Related Benefits

Medical Treatment and Related Issues

30.400

What are the basic rules for obtaining medical treatment?

30.401

What are the special rules for the services of chiropractors?

30.402

What are the special rules for the services of clinical psychologists?

30.403

Will OWCP pay for the services of an attendant?

30.404

Will OWCP pay for transportation to obtain medical treatment?

30.405

After selecting a treating physician, may an employee choose to be treated by another physician instead?

30.406

Are there any exceptions to these procedures for obtaining medical care?

Directed Medical Examinations

30.410

Can OWCP require an employee to be examined by another physician?

30.411

What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?

30.412

Who pays for second opinion and referee examinations?

Medical Reports

30.415

What are the requirements for medical reports?

30.416

How and when should medical reports be submitted?

30.417

What additional medical information may OWCP require to support continuing payment of benefits?

Medical Bills

30.420

How should medical bills and reimbursement requests be submitted?

30.421

What are the time frames for submitting bills and reimbursement requests?

30.422

If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee?

Subpart F—Survivors; Payments and Offsets; Overpayments

Survivors

30.500

What special statutory definitions apply to survivors under EEOICPA?

30.501

What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?

30.502

When is entitlement for survivors determined for purposes of EEOICPA?

Payment of Claims and Offset for Certain Payments

30.505

What procedures will OWCP follow before it pays any compensation?

30.506

To whom and in what manner will OWCP pay compensation?

30.507

What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA?

30.508

What is beryllium sensitivity monitoring?

30.509

Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?

Overpayments

30.510

How does OWCP notify an individual of a payment made on a claim?

30.511

What is an “overpayment” for purposes of EEOICPA?

30.512

What does OWCP do when an overpayment is identified?

30.513

Under what circumstances may OWCP waive recovery of an overpayment?

30.514

If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it?

30.515

Is a recipient responsible for an overpayment that resulted from an error made by OWCP?

30.516

Under what circumstances would recovery of an overpayment defeat the purpose of the Act?

30.517

Under what circumstances would recovery of an overpayment be against equity and good conscience?

30.518

Can OWCP require the recipient of the overpayment to submit additional financial information?

30.519

How does OWCP communicate its final decision concerning recovery of an overpayment?

30.520

How are overpayments collected?

Subpart G—Special Provisions

Representation

30.600

May a claimant designate a representative?

30.601

Who may serve as a representative?

30.602

Who is responsible for paying the representative's fee?

30.603

Are there any limitations on what the representative may charge the claimant for his or her services?

Third Party Liability

30.605

What rights does the United States have upon payment of compensation under EEOICPA?

30.606

Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP?

30.607

How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery?

30.608

How does the United States calculate the amount to which it is subrogated?

30.609

Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP?

30.610

Are payments to a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?

30.611

If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers

30.615

What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA?

30.616

What happens if this type of tort suit was filed prior to October 30, 2000?

30.617

What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?

30.618

What happens if this type of tort suit was filed after December 28, 2001?

30.619

Do all the parties to this type of tort suit have to take these actions?

30.620

How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of EEOICPA?

Coordination of Part E Benefits With State Workers' Compensation Benefits

30.625

What does “coordination of benefits” mean under Part E of EEOICPA?

30.626

How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers' compensation programs?

30.627

Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits?

Subpart H—Information for Medical Providers

Medical Records and Bills

30.700

What kind of medical records must providers keep?

30.701

How are medical bills to be submitted?

30.702

How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?

30.703

What are the time limitations on OWCP's payment of bills?

Medical Fee Schedule

30.705

What services are covered by the OWCP fee schedule?

30.706

How are the maximum fees defined?

30.707

How are payments for particular services calculated?

30.708

Does the fee schedule apply to every kind of procedure?

30.709

How are payments for medicinal drugs determined?

30.710

How are payments for inpatient medical services determined?

30.711

When and how are fees reduced?

30.712

If OWCP reduces a fee, may a provider request reconsideration of the reduction?

30.713

If OWCP reduces a fee, may a provider bill the employee for the balance?

Exclusion of Providers

30.715

What are the grounds for excluding a provider for payment under this part?

30.716

What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?

30.717

When are OWCP's exclusion procedures initiated?

30.718

How is a provider notified of OWCP's intent to exclude him or her?

30.719

What requirements must the provider's reply and OWCP's decision meet?

30.720

How can an excluded provider request a hearing?

30.721

How are hearings assigned and scheduled?

30.722

How are subpoenas or advisory opinions obtained?

30.723

How will the administrative law judge conduct the hearing and issue the recommended decision?

30.724

How can a party request review by OWCP of the administrative law judge's recommended decision?

30.725

What are the effects of non-automatic exclusion?

30.726

How can an excluded provider be reinstated?

Subpart I—Wage-Loss Determinations Under Part E of EEOICPA

General Provisions

30.800

What types of wage-loss are compensable under Part E of EEOICPA?

30.801

What special definitions does OWCP use in connection with Part E wage-loss determinations?

Evidence of Wage-Loss

30.805

What evidence does OWCP use to determine a covered Part E employee's average annual wage and whether he or she experienced compensable wage-loss under Part E of EEOICPA?

30.806

May a claimant submit factual evidence in support of a different determination of average annual wage and/or wage-loss than that found by OWCP?

Determinations of Average Annual Wage and Percentages of Loss

30.810

How will OWCP calculate the average annual wage of a covered Part E employee?

30.811

How will OWCP calculate the duration and extent of a covered Part E employee's initial period of compensable wage-loss?

30.812

May a covered Part E employee claim for subsequent periods of compensable wage-loss?

Special Rules for Certain Survivor Claims Under Part E of EEOICPA

30.815

Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee's compensable wage-loss?

Subpart J—Impairment Benefits Under Part E of EEOICPA

General Provisions

30.900

Who can receive impairment benefits under Part E?

30.901

How does OWCP determine the extent of an employee's impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?

30.902

How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E?

Medical Evidence of Impairment

30.905

How may an impairment evaluation be obtained?

30.906

Who will pay for an impairment evaluation?

30.907

Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?

30.908

How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?

Ratable Impairments

30.910

Will an impairment that cannot be assigned a numerical percentage using the AMA's

Guides

be included in the impairment rating?

30.911

Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?

30.912

Can a covered Part E employee receive benefits for additional impairment following an award of such benefits by OWCP?

Authority:

5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 4-2001, 66 FR 29656.

Subpart A—General Provisions

Introduction

§ 30.0

What are the provisions of EEOICPA, in general?

Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384

et seq.

, provides for the payment of compensation benefits to covered Part B employees and, where applicable, survivors of such employees, of the United States Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors. Part B also provides for the payment of supplemental compensation benefits to other covered Part B employees who have already been found eligible for benefits under section 5 of the Radiation Exposure Compensation Act, as amended (RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such persons. Part E of the Act provides for the payment of compensation benefits to covered Part E employees and, where applicable, survivors of such employees. The regulations in this part describe the rules governing filing, processing, and paying claims for benefits under both Part B and Part E of EEOICPA.

(a) Part B of EEOICPA provides for the payment of either lump-sum monetary compensation for the disability of a covered Part B employee due to an occupational illness or for monitoring for beryllium sensitivity, as well as for medical and related benefits for such illness. Part B also provides for the payment of monetary compensation for the disability of a covered Part B employee to specified survivors if the employee is deceased at the time of payment.

(b) Part E of EEOICPA provides for the payment of monetary compensation for the established wage-loss and/or impairment of a covered Part E employee due to a covered illness, and for medical and related benefits for such covered illness. Part E also provides for the payment of monetary compensation for the death (and established wage-loss, where applicable) of a covered Part E employee to specified survivors if the covered Part E employee is deceased at the time of payment.

(c) All types of benefits and conditions of eligibility listed in this section are subject to the provisions of EEOICPA and this part.

§ 30.1

What rules govern the administration of EEOICPA and this chapter?

In accordance with EEOICPA, Executive Order 13179 and Secretary's Order No. 4-2001, the primary responsibility for administering the Act, except for those activities assigned to the Secretary of Health and Human Services (HHS), the Secretary of Energy and the Attorney General, has been delegated to the Assistant Secretary of Labor for Employment Standards. The Assistant Secretary, in turn, has delegated the responsibility for administering the Act to the Director of the Office of Workers' Compensation Programs (OWCP). Except as otherwise

provided by law, the Director of OWCP and his or her designees have the exclusive authority to administer, interpret and enforce the provisions of the Act.

§ 30.2

In general, how have the tasks associated with the administration of EEOICPA claims process been assigned?

(a) In E.O. 13179, the President assigned the tasks associated with administration of the EEOICPA claims process among the Secretaries of Labor, HHS and Energy, and the Attorney General. In light of the fact that the Secretary of Labor has been assigned primary responsibility for administering EEOICPA, almost the entire claims process is within the exclusive control of OWCP. This means that all claimants file their claims with OWCP, and OWCP is responsible for granting or denying compensation under the Act (see §§ 30.100 through 30.102). OWCP also provides assistance to claimants and potential claimants by providing information regarding eligibility and other program requirements, including information on completing claim forms and the types and availability of medical testing and diagnostic services related to occupational illnesses under Part B of the Act and covered illnesses under Part E of the Act. In addition, OWCP provides an administrative review process for claimants who disagree with its recommended and final adverse decisions on claims of entitlement (see §§ 30.300 through 30.320).

(b) However, HHS has exclusive control of the portion of the claims process under which it provides reconstructed doses for certain radiogenic cancer claims (see § 30.115). HHS also has exclusive control of the process for designating classes of employees to be added to the Special Exposure Cohort under Part B of the Act, and has promulgated regulations governing that process at 42 CFR part 83. Finally, HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee's radiogenic cancer (see § 30.213). DOE and DOJ must, among other things, notify potential claimants and submit evidence that OWCP deems necessary for its adjudication of claims under EEOICPA (see §§ 30.105, 30.112, 30.206, 30.212 and 30.221).

§ 30.3

What do these regulations contain?

This part 30 sets forth the regulations governing administration of all claims that are filed with OWCP, except to the extent specified in certain provisions. Its provisions are intended to assist persons seeking benefits under EEOICPA, as well as personnel in the various federal agencies and DOL who process claims filed under EEOICPA or who perform administrative functions with respect to EEOICPA. The various subparts of this part contain the following:

(a) Subpart A: The general statutory and administrative framework for processing claims under both Parts B and E of EEOICPA. It contains a statement of purpose and scope, together with definitions of terms, information regarding the disclosure of OWCP records, and a description of rights and penalties involving EEOICPA claims, including convictions for fraud.

(b) Subpart B: The rules for filing claims for entitlement under EEOICPA. It also addresses general standards regarding necessary evidence and the burden of proof, descriptions of basic forms and special procedures for certain cancer claims.

(c) Subpart C: The eligibility criteria for occupational illnesses and covered illnesses compensable under Parts B and E of EEOICPA, respectively.

(d) Subpart D: The rules governing the adjudication process leading to recommended and final decisions on claims for entitlement filed under Parts B and E of EEOICPA. It also describes the hearing and reopening processes.

(e) Subpart E: The rules governing medical care, second opinion and referee medical examinations and impairment evaluations directed by OWCP as part of its adjudication of entitlement, and medical reports and records in general. It also addresses the kinds of medical treatment that may be authorized and how medical bills are paid.

(f) Subpart F: The rules relating to the payment of monetary compensation available under Parts B and E of EEOICPA. It includes provisions on medical monitoring for beryllium sensitivity, on the identification, processing and recovery of overpayments of compensation, and on the maximum aggregate amount of compensation payable under Part E.

(g) Subpart G: The rules concerning the representation of claimants in connection with the administrative adjudication of claims before OWCP, subrogation of the United States, the effect of tort suits against beryllium vendors and atomic weapons employers, and the coordination of benefits under Part E of EEOICPA with state workers' compensation benefits for the same covered illness.

(h) Subpart H: Information for medical providers. It includes rules for medical reports, medical bills, and the OWCP medical fee schedule, as well as the provisions for exclusion of medical providers.

(i) Subpart I: The rules relating to the adjudication of alleged periods of wage-loss of covered Part E employees. It also includes provisions on the use by OWCP of Social Security Administration earnings information and certain medical evidence to establish compensable wage-loss.

(j) Subpart J: The rules relating to the adjudication of alleged permanent impairment due to the exposure of covered Part E employees to toxic substances. It includes provisions relating to the medical evaluation of ratable impairments, the rating of progressive conditions, and qualifications of physicians.

Definitions

§ 30.5

What are the definitions used in this part?

(a)

Act

or

EEOICPA

means the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384

et seq.

).

(b)

Atomic weapon

means any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device), the principle purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapon test device.

(c)

Atomic weapons employee

means:

(1) An individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; or

(2)(i) An individual employed at a facility that the National Institute for Occupational Safety and Health (NIOSH) reported had a potential for significant residual contamination outside of the period described in paragraph (c)(1) of this section;

(ii) By the atomic weapons employer that owned the facility referred to in paragraph (c)(2)(i) of this section, or a subsequent owner or operator of such facility; and

(iii) During a period reported by NIOSH, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, to have a potential for significant residual radioactive contamination.

(d)

Atomic weapons employer

means any entity, other than the United States, that:

(1) Processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(2) Is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

(e)

Atomic weapons employer facility

means any facility, owned by an atomic weapons employer, that:

(1) Is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling; and

(2) Is designated as such in the list periodically published in the

Federal Register

by DOE.

(f)

Attorney General

means the Attorney General of the United States or the United States Department of Justice (DOJ).

(g)

Benefit

or

Compensation

means the money the Department pays to or on behalf of either a covered Part B employee under Part B, or a covered Part E employee under Part E, from the Energy Employees Occupational Illness Compensation Fund. However, the term “compensation” used in section 7385f(b) of EEOICPA (restricting entitlement to only one payment of compensation under Part B) means only the payments specified in section 7384s(a)(1) and in section 7384u(a). Except as used in section 7385f(b), these two terms also include any other amounts paid out of the Fund for such things as medical treatment, monitoring, examinations, services, appliances and supplies as well as for transportation and expenses incident to the securing of such medical treatment, monitoring, examinations, services, appliances, and supplies.

(h)

Beryllium sensitization or sensitivity

means that the individual has an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.

(i)

Beryllium vendor

means the specific corporations and named predecessor corporations listed in section 7384l(6) of the Act and any of the facilities designated as such in the list periodically published in the

Federal Register

by DOE.

(j)

Chronic silicosis

means a non-malignant lung disease if:

(1) The initial occupational exposure to silica dust preceded the onset of silicosis by at least 10 years; and

(2) A written diagnosis of silicosis is made by a medical doctor and is accompanied by:

(i) A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or

(ii) Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or

(iii) Lung biopsy findings consistent with silicosis.

(k)

Claim

means a written assertion to OWCP of an individual's entitlement to benefits under EEOICPA, submitted in a manner authorized by this part.

(l)

Claimant

means the individual who is alleged to satisfy the criteria for compensation under the Act.

(m)

Compensation fund

or

fund

means the fund established on the books of the Treasury for payment of benefits and compensation under the Act.

(n)

Contemporaneous record

means any document created at or around the time of the event that is recorded in the document.

(o)

Covered beryllium illness

means any of the following:

(1) Beryllium sensitivity as established by an abnormal LPT performed on either blood or lung lavage cells.

(2) Established chronic beryllium disease (see § 30.207(c)).

(3) Any injury, illness, impairment, or disability sustained as a consequence of a covered beryllium illness referred to in paragraphs (o)(1) or (2) of this section.

(p)

Covered Part E employee

means, under Part E of the Act, a Department of Energy contractor employee or a RECA section 5 uranium worker who has been determined by OWCP to have contracted a covered illness (see paragraph (r) of this section) through exposure at a Department of Energy facility or a RECA section 5 facility, as appropriate.

(q)

Covered Part B employee

means, under Part B of the Act, a covered beryllium employee (see § 30.205), a covered employee with cancer (see § 30.210(a)), a covered employee with chronic silicosis (see § 30.220), or a covered uranium employee (see paragraph (s) of this section).

(r)

Covered illness

means, under Part E of the Act relating to exposures at a DOE facility or a RECA section 5 facility, an illness or death resulting from exposure to a toxic substance.

(s)

Covered uranium employee

means, under Part B of the Act, an individual who has been determined by DOJ to be entitled to an award under section 5 of RECA, whether or not the individual was the employee or the deceased employee's survivor.

(t)

Current or former employee as defined in 5 U.S.C. 8101(1)

as used in § 30.205(a)(1) means an individual who fits within one of the following listed groups:

(1) A civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States;

(2) An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;

(3) An individual, other than an independent contractor or individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;

(4) An individual appointed to a position on the office staff of a former President; or

(5) An individual selected and serving as a Federal petit or grand juror.

(u)

Department

means the United States Department of Labor (DOL).

(v)

Department of Energy

or

DOE

includes the predecessor agencies of the DOE, including the Manhattan Engineering District.

(w)

Department of Energy contractor employee

means any of the following:

(1) An individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months.

(2) An individual who is or was employed at a DOE facility by:

(i) An entity that contracted with the DOE to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii) A contractor or subcontractor that provided services, including construction and maintenance, at the facility.

(x)(1)

Department of Energy facility

means, as determined by the Director of OWCP, any building, structure, or premise, including the grounds upon which such building, structure, or premise is located:

(i) In which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by E.O. 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and

(ii) With regard to which the DOE has or had:

(A) A proprietary interest; or

(B) Entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

(2) DOL has adopted the determinations of the Department of Energy regarding Department of Energy facilities that were contained in the list of facilities published in the

Federal Register

on August 23, 2004 (69 FR 51825). DOL will periodically update this list as it deems appropriate in its sole discretion by publishing a revised list of Department of Energy facilities in the

Federal Register

.

(y)

Disability

means, for purposes of determining entitlement to payment of Part B benefits under section 7384s(a)(1) of the Act, having been determined by OWCP to have or have had established chronic beryllium disease, cancer, or chronic silicosis.

(z)

Eligible surviving beneficiary

means any individual who is entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of the Act to receive a payment on behalf of a deceased covered Part B employee or a deceased covered Part E employee.

(aa)

Employee

means either a current or former employee.

(bb)

Occupational illness

means, under Part B of the Act, a covered beryllium illness, cancer sustained in the performance of duty as defined in § 30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has awarded compensation under section 5 of RECA.

(cc)

OWCP

means the Office of Workers' Compensation Programs, United States Department of Labor. One of the four divisions of OWCP is the Division of Energy Employees Occupational Illness Compensation.

(dd)

Physician

includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. The term “physician” includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.

(ee)

Qualified physician

means any physician who has not been excluded under the provisions of subpart H of this part. Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP.

(ff)

Specified cancer

(as defined in section 4(b)(2) of RECA and in EEOICPA) means:

(1) Leukemia (other than chronic lymphocytic leukemia) provided that the onset of the disease was at least 2 years after first exposure;

(2) Lung cancer (other than in situ lung cancer that is discovered during or after a post-mortem exam);

(3) Bone cancer;

(4) Renal cancers; or

(5) The following diseases, provided onset was at least 5 years after first exposure:

(i) Multiple myeloma;

(ii) Lymphomas (other than Hodgkin's disease); and

(iii) Primary cancer of the:

(A) Thyroid;

(B) Male or female breast;

(C) Esophagus;

(D) Stomach;

(E) Pharynx;

(F) Small intestine;

(G) Pancreas;

(H) Bile ducts;

(I) Gall bladder;

(J) Salivary gland;

(K) Urinary bladder;

(L) Brain;

(M) Colon;

(N) Ovary; or

(O) Liver (except if cirrhosis or hepatitis B is indicated).

(6) The specified diseases designated in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.

(gg)

Survivor

means:

(1) For claims under Part B of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse, child, parent, grandchild and grandparent of a deceased covered Part B employee.

(2) For claims under Part E of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse and child of a deceased covered Part E employee.

(3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) of this section do not include any individuals not living as of the time OWCP makes a lump-sum payment or payments to an eligible surviving beneficiary or beneficiaries.

(hh)

Time of injury

means:

(1) In regard to a claim arising out of exposure to beryllium or silica, the last date on which a covered Part B employee was exposed to such substance in the performance of duty in accordance with sections 7384n(a) or 7384r(c) of the Act; or

(2) In regard to a claim arising out of exposure to radiation under Part B, the last date on which a covered Part B employee was exposed to radiation in the performance of duty in accordance with section 7384n(b) of the Act or, in the case of a member of the Special Exposure Cohort, the last date on which the member of the Special Exposure Cohort was employed at the Department of Energy facility or the atomic weapons employer facility at which the member was exposed to radiation; or

(3) In regard to a claim arising out of exposure to a toxic substance, the last date on which a covered Part E employee was employed at the Department of Energy facility or RECA section 5 facility, as appropriate, at which the exposure took place.

(ii)

Toxic substance

means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.

(jj)

Workday

means a single workshift whether or not it occurred on more than one calendar day.

Information in Program Records

§ 30.10

Are all OWCP records relating to claims filed under EEOICPA considered confidential?

All OWCP records relating to claims for benefits under EEOICPA are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act and the Privacy Act of 1974.

§ 30.11

Who maintains custody and control of claim records?

All OWCP records relating to claims for benefits filed under the Act are covered by the Privacy Act system of records entitled DOL/ESA-49 (Office of Workers' Compensation Programs, Energy Employees Occupational Illness Compensation Program Act File). This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/ESA-49 are official records of OWCP. The protection, release, inspection and copying of records covered by DOL/ESA-49 shall be accomplished in accordance with the rules, guidelines and provisions of this part, as well as those contained in 29 CFR parts 70 and 71, and with the notice of the system of records and routine uses published in the

Federal Register

. All questions relating to access, disclosure, and/or amendment of claims records maintained by OWCP are to be resolved in accordance with this section.

§ 30.12

What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?

(a) A claimant seeking copies of his or her official EEOICPA file should address a request to the District Director of the OWCP district office having custody of the file.

(b) Any request to amend a record covered by DOL/ESA-49 should be directed to the district office having custody of the official file.

(c) Any administrative appeal taken from a denial issued by OWCP under this section shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.

Rights and Penalties

§ 30.15

May EEOICPA benefits be assigned, transferred or garnished?

(a) Pursuant to section 7385f(a) of the Act, no claim for EEOICPA benefits may be assigned or transferred.

(b) Provisions of the Social Security Act (42 U.S.C. 659) and regulations issued by the Office of Personnel Management at 5 CFR part 581 permit the garnishment of payments of EEOICPA monetary benefits to collect overdue alimony and child support. A request to garnish a payment for either of these purposes should be submitted to the district office that is handling the EEOICPA claim, and must be accompanied by a copy of the pertinent state agency or court order.

§ 30.16

What penalties may be imposed in connection with a claim under the Act?

(a) Other statutory provisions make it a crime to file a false or fraudulent claim or statement with the federal government in connection with a claim under the Act. Included among these provisions is 18 U.S.C. 1001. Enforcement of criminal provisions that may apply to claims under the Act is within the jurisdiction of the Department of Justice.

(b) In addition, administrative proceedings may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801

et seq.

, to impose civil penalties and assessments against persons or entities who make, submit or present, or cause to be made, submitted or presented, false, fictitious or fraudulent claims or written statements to OWCP in connection with a claim under EEOICPA. The Department's regulations implementing PFCRA are found at 29 CFR part 22.

§ 30.17

Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?

When a beneficiary either pleads guilty to or is found guilty on either federal or state criminal charges of defrauding the federal or a state government in connection with a claim for benefits under the Act or any other federal or state workers' compensation law, the beneficiary forfeits (effective the date either the guilty plea is accepted or a verdict of guilty is returned after trial) any entitlement to any further benefits for any injury, illness or death covered by this part for which the time of injury was on or before the date of such guilty plea or verdict. Any subsequent change in or recurrence of the beneficiary's medical condition does not affect termination of entitlement under this section.

Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims

Filing Claims for Benefits Under EEOICPA

§ 30.100

In general, how does an employee file an initial claim for benefits?

(a) To claim benefits under EEOICPA, an employee must file a claim in writing. Form EE-1 should be used for this purpose, but any written communication that requests benefits under EEOICPA will be considered a claim. It will, however, be necessary for an employee to submit a Form EE-1 for OWCP to fully develop the claim. Copies of Form EE-1 may be obtained from OWCP or on the Internet at

http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.

The employee's claim must be filed with OWCP, but another person may do so on the employee's behalf.

(b) The employee may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (

e.g.

, the employee may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations). The employee may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.

(c) Except as provided in paragraph (d) of this section, a claim is considered to be “filed” on the date that the employee mails his or her claim to OWCP, as determined by postmark, or on the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a claim under Part B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor will a claim under Part E of EEOICPA be considered to be “filed” earlier than October 30, 2000.

(1) The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on the Form EE-1 is true, and must inform OWCP of any subsequent changes to that information.

(2) Except for a covered uranium employee filing a claim under Part B of the Act, the employee is responsible for submitting with his or her claim, or arranging for the submission of, medical evidence to OWCP that establishes that he or she sustained an occupational illness and/or a covered illness. This required medical evidence is described in § 30.114 and does not refer to mere recitations of symptoms the employee experienced that the employee believes indicate that he or she sustained an occupational illness or a covered illness.

(d) For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the employee mailed his or her claim to DOE, as determined by postmark, or on the date that the claim was received by DOE, whichever is the earliest determinable date. However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.

§ 30.101

In general, how is a survivor's claim filed?

(a) A survivor of an employee who sustained an occupational illness or a covered illness must file a claim for compensation in writing. Form EE-2 should be used for this purpose, but any written communication that requests survivor benefits under the Act will be considered a claim. It will, however, be necessary for a survivor to submit a Form EE-2 for OWCP to fully develop the claim. Copies of Form EE-2 may be obtained from OWCP or on the Internet at

http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.

The survivor's claim must be filed with OWCP, but another person may do so on the survivor's behalf. Although only one survivor needs to file a claim under this section to initiate the development process, OWCP will distribute any monetary benefits payable on the claim among all eligible surviving beneficiaries who have filed claims with OWCP.

(b) A survivor may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (

e.g.

, the survivor may not want to claim

for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations). The survivor may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.

(c) A survivor must be alive to receive any payment under EEOICPA; there is no vested right to such payment.

(d) Except as provided in paragraph (e) of this section, a survivor's claim is considered to be “filed” on the date that the survivor mails his or her claim to OWCP, as determined by postmark, or the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a survivor's claim under Part B of the Act be considered to be “filed” earlier than July 31, 2001, nor will a survivor's claim under Part E of the Act be considered to be “filed” earlier than October 30, 2000.

(1) The survivor, or the person filing the claim on behalf of the survivor, shall affirm that the information provided on the Form EE-2 is true, and must inform OWCP of any subsequent changes to that information.

(2) Except for the survivor of a covered uranium employee claiming under Part B of the Act, the survivor is responsible for submitting, or arranging for the submission of, evidence to OWCP that establishes that the employee upon whom the survivor's claim is based was eligible for such benefits, including medical evidence that establishes that the employee sustained an occupational illness or a covered illness. This required medical evidence is described in § 30.114 and does not refer to mere recitations by the survivor of symptoms the employee experienced that the survivor believes indicate that the employee sustained an occupational illness or a covered illness.

(e) For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the survivor mailed his or her claim to DOE, as determined by postmark, or on the date that the claim was received by DOE, whichever is the earliest determinable date. However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.

(f) A spouse or a child of a deceased DOE contractor employee or RECA section 5 uranium worker, who is not a covered spouse or covered child under Part E, may submit a written request to OWCP for a determination of whether that deceased DOE contractor employee or RECA section 5 uranium worker contracted a covered illness under section 7385s-4(d) of EEOICPA.

(1) Any such request submitted pursuant to paragraph (f) of this section will not be considered a survivor's claim for benefits under Part E of the Act.

(2) As part of its consideration of any request submitted pursuant to paragraph (f) of this section, OWCP will apply the eligibility criteria in subpart C of this part. However, the adjudicatory procedures contained in subpart D of this part will not apply to OWCP's consideration of such a request, and OWCP's response to the request will not constitute a final agency decision on entitlement to any benefits under EEOICPA.

§ 30.102

In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?

(a) An employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits. Such claim must be based on an increase in the employee's minimum impairment rating attributable to the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP. OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits. However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness.

(b) An employee previously awarded wage-loss benefits by OWCP may be eligible for additional wage-loss benefits for periods of wage-loss that were not addressed in a prior claim only if the employee had not reached his or her Social Security retirement age at the time of the prior award. OWCP will adjudicate claims filed on a yearly basis in connection with each succeeding calendar year for which qualifying wage-loss under Part E is alleged, as well as claims that aggregate calendar years for which qualifying wage-loss is alleged.

(c) Employees should use Form EE-10 to claim for additional impairment or wage-loss benefits under Part E of EEOICPA.

(1) The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on Form EE-10 is true, and must inform OWCP of any subsequent changes to that information.

(2) The employee is responsible for submitting with any claim filed under this section, or arranging for the submission of, factual and medical evidence establishing that he or she experienced another calendar year of qualifying wage-loss, and/or medical evidence establishing that he or she has an increased minimum impairment rating, as appropriate.

§ 30.103

How does a claimant make sure that OWCP has the evidence necessary to process the claim?

(a) Claims and certain required submissions should be made on forms prescribed by OWCP. Persons submitting forms shall not modify these forms or use substitute forms.

Form No.

Title

(1) EE-1

Claim for Benefits Under the Energy Employees Occupational Illness Compensation Program Act.

(2) EE-2

Claim for Survivor Benefits Under the Energy Employees Occupational Illness Compensation Program Act.

(3) EE-3

Employment History for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.

(4) EE-4

Employment History Affidavit for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.

(b) Copies of the forms listed in this section are available for public inspection at the Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. They may also be obtained from OWCP district offices and on the Internet at

http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.

Verification of Alleged Employment

§ 30.105

What must DOE do after an employee or survivor files a claim?

(a) After it receives a claim for benefits described in §§ 30.100 or 30.101, OWCP may request that DOE verify the employment history provided by the claimant. Upon receipt of such a request, DOE will complete Form EE-5 as soon as possible and transmit the completed form to OWCP. On this form, DOE will certify either that it concurs with the employment history provided by the claimant, that it disagrees with such history, or that it can neither concur nor disagree after making a reasonable search of its records and also making a reasonable effort to locate

pertinent records not already in its possession.

(b) Claims for additional impairment or wage-loss benefits under Part E of the Act described in § 30.102 will not require any verification of employment by DOE, since OWCP will have made any required findings on this particular issue when it adjudicated the employee's initial claim for benefits.

§ 30.106

Can OWCP request employment verification from other sources?

(a) For most claims filed under EEOICPA, DOE has access to sufficient factual information to enable it to fulfill its obligations described in § 30.105(a). However, in instances where it lacks such information, DOE may arrange for other entities to provide OWCP with the information necessary to verify an employment history submitted as part of a claim. These other entities may consist of either current or former DOE contractors and subcontractors, atomic weapons employers, beryllium vendors, or other entities with access to relevant employment information.

(b) On its own initiative, OWCP may also arrange for entities other than DOE to perform the employment verification duties described in § 30.105(a).

Evidence and Burden of Proof

§ 30.110

Who is entitled to compensation under the Act?

(a) Under Part B of EEOICPA, compensation is payable to the following covered Part B employees, or their survivors:

(1) A “covered beryllium employee” (as described in § 30.205(a)) with a covered beryllium illness (as defined in § 30.5(o)) who was exposed to beryllium in the performance of duty (in accordance with § 30.206).

(2) A “covered Part B employee with cancer” (as described in § 30.210(a)).

(3) A “covered Part

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