Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended, 78520-78568 [E6-21839]

Agencies

• DEPARTMENT OF LABOR
• Office of Workers' Compensation Programs
• Workers' Compensation Programs Office

[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78520-78568]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21839]



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Part II





Department of Labor





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Office of Workers' Compensation Programs



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20 CFR Parts 1 and 30



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

Federal Register / Vol. 71, No. 250 / Friday, December 29, 2006 / 
Rules and Regulations

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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.

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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 Sec.  30.112(b) to recognize that pursuant to Sec.  
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 Sec.  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 Sec.  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 Sec.  
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, Sec.  
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 Sec.  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 Sec.  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

[[Page 78521]]

eligibility of survivors under Part B and Part E of EEOICPA already 
appear at Sec.  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 Sec. Sec.  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 Sec. Sec.  30.100 and 30.101 were not made.
    Two individuals disputed the provision in Sec.  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 Sec.  30.101(c) was not made.
    Three advocacy groups suggested that the provision in Sec.  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 Sec.  
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 Sec.  30.103(b), 
these forms are available on the Internet at https://www.dol.gov/esa/
regs/compliance/owcp/eeoicp/main.htm. Therefore, the suggested change 
to Sec.  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, Sec.  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 Sec.  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 Sec.  30.111(a).
    Another individual suggested that OWCP amend Sec.  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 Sec.  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

[[Page 78522]]

final rule. A third individual suggested that language be added to 
Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  30.114 was 
not made.

Section 30.115

    Two individuals asserted that application of the dose 
reconstruction process discussed in Sec.  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 Sec.  
30.5(ff)) at newly designated Special Exposure Cohort worksites. With 
respect to the first of these two concerns, the discussion of Sec.  
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 Sec.  30.2(b)). For 
the above reasons, no changes were made to Sec.  30.115 in the final 
rule based on these three comments.

Section 30.213

    OWCP received 19 comments regarding the operation of Sec.  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

[[Page 78523]]

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

[[Page 78524]]

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 Sec. Sec.  30.230 through 30.232. As a 
result, no changes were made to Sec.  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 Sec.  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, Sec.  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 Sec.  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 Sec.  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 Sec.  30.231 have 
not been adopted.
    One advocacy group objected to the requirement in Sec.  
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 Sec.  
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 Sec.  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

[[Page 78525]]

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 Sec.  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 Sec.  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 Sec.  30.301 have not been adopted.
    One attorney suggested that Sec.  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 Sec.  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 Sec.  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 Sec.  30.303. However, in order to accommodate DOE's 
belief that it requires additional time to comply with these necessary 
requests, OWCP has amended Sec.  30.303(a) to provide DOE with 90 days 
within which to respond.

Sections 30.307 and 30.316

    One attorney suggested that Sec. Sec.  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, 
Sec. Sec.  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 Sec.  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, Sec.  30.315(b) has been amended as 
suggested by the commenter.

Section 30.320

    One attorney suggested that Sec.  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

[[Page 78526]]

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 Sec.  30.320(a), which 
permits the Director, at his discretion, to reopen a final decision at 
any time. For these reasons, the suggestion regarding Sec.  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 Sec. Sec.  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, Sec. Sec.  
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 
Sec. Sec.  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, Sec.  
30.410(b) and Sec.  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 Sec.  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, Sec.  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 Sec. Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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

[[Page 78527]]

suggestions to change Sec.  30.505(a) have not been adopted.
    One labor organization suggested that Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  30.513 of the interim final 
regulations notes the general authority of OWCP to waive recovery of an 
overpayment of EEOICPA benefits, Sec. Sec.  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 
Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  30.603 only to claims filed on or after 
June 8,

[[Page 78528]]

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

Section 30.609

    Two advocacy groups disagreed with the requirement in Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  30.806 in 
the final rule. However, because of these concerns, Sec.  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