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Developments, problems, and thoughts on the implementation of EEOICPA  

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Radioactive Daughter

Thoughts on EEOICPA and America's history of atomic weapons

 

 

Penny Wise and Pound Foolish

May 23, 2019


I got a call from an advocate this week who said her sick workers were getting letters from Department of Labor and freaking out. The letters were telling them that their case managers will only be allowed to spend 15 minutes per week managing their care. The advocate works in a rural area where case managers may have to drive several hours to reach each client. I asked DOL about this and they said that they do not pay case manager travel time. This seems a bit off to me because if the sick worker needed to drive to a medical appointment EEOICPA would pay the travel time.

The advocate also brought up the fact that many of her sick workers do not speak English and part of what the case managers do for these people is to translate communications for them. I can’t even imagine what this would be like. I know I have spent a fair amount of time translating DOL and NIOSH letters from bureaucratic speak into comprehendible English. This would be much harder if communications then needed to be translated further. I’m not sure even one letter, let alone medical test results could be done in 15 minutes.

This really worries me. Case managers do a whole lot more than just translate test results and letters. They coordinate care between different medical providers as well. I don’t know about you but I can’t remember the last time I was able to get a question answered or set up an appointment with a physician in less than 15 minutes when you figure all the time spent on hold.

Case managers also need to document the sick worker’s care. These can mean spending more than 15 minutes keeping track on changes in care and medication. They also need to evaluate how the care plan is working for the sick worker.

National Institutes of Health have reported studies on how case managers spend their time. According to a 2016 study from Australia 22% of case manager’s time is spent on care coordination and 8% of the time was spent on outcome evaluation. Here is how 15 minutes per week of case management would break down:


Case management is a field that has shown to reduce costs and improve the health of patients. It seems to me that reducing the amount of time case managers spend with sick workers will lead to worse health outcomes, and additional costs for increased hospitalizations.

The British have a saying, “Penny wise and pound foolish” that seems to address this new policy. DOL may well save a couple of dollars for each sick worker but I fear the cost will be much larger than the savings-in dollars and health.

 

What Can We Do about DOL's New Rules?

March 20, 2019

 





When the nuclear weapons complex was established the government chose to have private contractors manage the facilities.  Because these private companies were concerned about liability the government excluded them from safety regulations and allowed them to regulate themselves.  What do you suppose happens when industry is faced with making more profit or spending more on worker safety?  Bingo!  Profit wins over safety every time. 

The Energy Employee Occupational Illness Compensation Program (EEOICPA) was created to correct the damage done to these workers. In the law that created EEOICPA Congress states that “nuclear weapons workers… were put at risk without their knowledge and consent”. EEOICPA is a remedial law.  In other words, a law created to correct a wrong.  Remedial laws are to be interpreted more broadly than regular laws.

DOL’s new rules, which were published last month do not conform to the definition of a remedial law.  They narrow the interpretation of the law.  This will restrict benefits and make it more difficult for claimants to get a claim approved. 

A simple example of this is that currently sick workers covered by EEOICPA can change doctors when they feel it is necessary.  There are many valid reasons a patient might want to change doctors.  The new rules require that a patient get approval from DOL before being allowed to change.  Requiring a government agency’s permission to change doctors and is not appropriate in a remedial law.  It’s also not smart medicine.

Advocates, a senator, and stakeholder organizations have pointed out to DOL that these rule changes add to the already difficult burden these sick workers must struggle under and asked DOL to rescind these changes.  DOL refused.

These rules are scheduled to go into effect on April 9-three weeks from today. 

This is where Professional Case Management (PCM) comes in. PCM agreed that the new rules will be harmful to the claimants.  When there seemed no path left forward to get DOL to change their mind, PCM filed a lawsuit to try to force DOL to rescind the rules and work with stakeholders to develop improved regulations.  As you can imagine, filing a lawsuit against the federal government is no small (or cheap) undertaking.  I, for one, am very grateful to them for doing this.  As a disclaimer, I began working part-time for Cold War Patriots, a division of PCM, about three years ago.

There is no way to know how this lawsuit will progress.  But there is something we can all do.  We can send DOL Secretary Acosta an email at: acosta.alexander@dol.gov or give him a call toll-free at 866-301-0070.  All you need to do is to tell the Secretary that you would like him to withdraw the EEOICPA final rules and have DOL negotiate with stakeholders on the rules.

Cold War Patriots has set up a special page with information on the lawsuit.

 

Zombie Policy Rides Again!

Image by 5187396 on Pixabay

EEOICPA claims can be complicated.  We all know this.  And I have a fair amount of sympathy for Claims Examiners who need to keep up to date with all the various changes and policies.  Adjudicating claims is difficult work and I appreciate Claims Examiners who do their best to provide fair adjudication.

Recently I took a look at a Recommended Decision dated February 22, 2019, which recommended denial of a claim for COPD.  In this decision, the claims examiner quotes the Industrial Hygienist, saying: “There is no available evidence (i.e., personal and/or area industrial hygiene monitoring data) to support that, after the mid-1990's, his exposures to these agents would have exceeded existing regulatory standards.

I found this startling and reviewed the opinion written on December 11, 2018 by Linda C. Brady, a contractor certified Industrial Hygienist hired by DEEOC’s contractor Banda Group International.  In the opinion Ms. Brady states six times, “there is no available evidence (i.e., personal and/or area industrial hygiene monitoring data) to support that, after the mid-1990s, his exposures would have exceeded existing regulatory standards.” This opinion was reviewed and signed by two members of DEEOIC’s staff.

I found this even more worrying and reviewed the opinion written on February 11, 2019 by Dr. Gideon Letz, a DEEOIC contractor physician.  And the same rescinded circular influenced language appears in this opinion as well, “After the mid-1990s it is assumed that exposures were within existing regulator standards.

All of this made the hair on the back of my neck stand up.  Why? Because in 2014 Department of Labor’s Division of Energy Employees Occupational Illness Compensation Division (DEEOIC) issued a circular providing guidance to Claims Examiners that stated that after 1995 Department of Energy had made such significant improvements in their safety and health programs that it was unlikely that workers would have been exposed to enough toxic materials to make them sick.

The advocates disagreed with this and many discussions were held with DEEOIC about this point.  The Advisory Board on Toxic Substances and Worker Health weighed in on this at the October 17-19, 2016 meeting and recommended this guidance be rescinded.  DEEOIC agreed to rescind the circular and stated they had a plan to review claims that may have been affected.

On February 2, 2017 the circular was reversed which meant that workers no longer had the presumption that DOE workers were no longer safe from toxic materials after 1995.

Apparently after more than two years of the removal of the circular DEEOIC’s contractor employees and staff members are still using the information as a basis for denying claims.  That’s what alarmed me.

This is not an issue that an average claimant would have the knowledge to understand, nor should they have to.  It takes a lot of experience in the history of EEOICPA to catch a wonky issue like this.  I’m sure DEEOIC will take a second look at THIS claim but my concern is how many other claims have been denied based on this erroneous guidance after the rescision of the guidance?  What training was done to DEEOIC contractors and staff that this circular was no longer in effect?  What will DEEOIC do to correct this situation for this worker and other workers who were likely wrongly denied?

 

DOL proposes changing the Rules

December 1, 2015



On November 18th, right before the Thanksgiving holiday, DOL released its proposed Rule changes for EEOICPA.  In reviewing these proposed Rules changes it appears DEEOIC rushed the project.  Detail is non-existent and there is no supporting documentation.  Statements are made without any information to back them up. They give no reasons why DEEOIC thinks these changes are needed.  This is a fairly comprehensive re-write of the rules with over 130 separate changes being proposed.

This seems to be a “trust me, I’m the government” proposal for Rules changes.  Unfortunately, DEEOIC does not have a good record for this type of trust.

Many of these proposed changes, while making the administration of the program easier on DEEOIC, could have a profoundly negative impact on ill or disabled workers’ ability to get their claims approved as well as receiving the medical care that EEOICPA guarantees them.  EEOICPA is a remedial program.  It was put into place because the government damaged these workers without their knowledge or consent.  DOL needs to honor that. 

None of the proposed changes provide any reasons for the changes, what problems DEEOIC is trying to fix, or any metrics on the number of times the problems have occurred.  It is hard to make a case for justifying these rules changes without pertinent facts and documentation.

Another problem with these proposed changes is that DEEOIC is using them to “memorialize” or “codify” practices already in use.  Advocates have long suspected that DEEOIC was overstepping the law with some of these practices.  Codifying these practices with the proposed Rules is putting the cart before the horse.  An agency needs to propose new Rules BEFORE they put policies like this into practice, not afterwards.  

Over the next week or so I’ll be exploring how these changes could impact an ill worker’s claim using an actual claim to illustrate the points.

These proposed rules changes are premature and need to be withdrawn.  Before these changes can be proposed two things need to happen:

1.            An audit of the program needs to take place. 

2.            The new Advisory Board on Toxic Substances and Worker Health needs to review all the proposed rules changes.  This is exactly the type of issue that the Board was created to assist DEEOIC with.  It appears DEEOIC may be rushing these proposed changes through to circumvent the Board’s assistance in this matter.

An Attempt at a Plain English Translation of EEOICPA Rules Changes

December 3, 2015

 

Possible problems for claimants are written in red.

Government entities involved in EEOICPA with hierarchy:

·         Department of Health and Human Services (HHS)

o   National Institute of Occupational Safety and Health (NIOSH)

·         Department of Labor (DOL)

o   Office of Workers’ Compensation

§  Division of Energy Employees Occupational Illness Compensation

·         Department of Energy (DOE)

·         Department of Justice (DOJ)

§ 30.1 What rules govern the administration of EEOICPA and this chapter?

·         Except for what the law assigned to HHS, OWCP is to administer the law.  They did this by establishing DEEOIC.

 

§30.2(b) In general, how have the tasks associated with the administration of EEOICPA claims process been assigned?

·         NIOSH has control over the dose reconstruction process.

·         HHS has control over what additional Special Exposure Cohorts (SEC) are established.

·         DOE (for EEOICPA) and DOJ (for RECA) must notify potential claimants and provide evidence that OWCP requests.

Below are the changes that OWCP wants to make:

§30.5 What are the definitions used in this part?

·         §30.5(i) DOE used to periodically update its list of beryllium vendors but has stopped.  This section will allow the final beryllium vendor list, from 2002 to be used rather than the non-existent updated list.

·         §30.5(j) defines “beryllium vendor facility” as “a facility owned and operated by a beryllium vendor”.

·         §30.5(k) replaces “medical doctor” with “licensed physician”. This is reflected in other sections of the rules changes.

·         §30.(w) gives the date August 13, 1942 as the beginning date when a worker is covered under EEOICPA

·         §30.5(x)(2)(iii) classifies DEEOIC current policy into rules that a state or federal civilian employee is qualified as a DOE contractor employee if the company the employee worked for held a contract with DOE to provide any services that he was not required by law to provide and that DOE paid for these services.  This proposed section also seems more   

·         This section also excludes people who made deliveries or removals from DOE contractor sites from eligibility under EEOICPA.

o   This will be a problem for some people made deliveries and removals of toxic and radioactive substances used at the nuclear weapons plants. 

o   Also, would this eliminate EEOICPA coverage for some uranium haulers?

o   Why has DEEOIC requested this change? 

o   What problem does it solve that offsets the additional burden on claimants? 

o   How many times has this problem occurred?

o   How does this change provide transparency or clarity?

o   How does this change benefit the claimant?

 

·         §30.5(ee) defines physician as “surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners.”  Chiropractic services are limited.

o   EECAP feels this should include nurse practitioners in any state where they can operate independently, as they provide primary care in about half the states.

·         §30.5(gg) removes references to RECA and EEOICPA from the definition of specified cancer.

·         §30.5(ii) redefines a survivor’s claim as beginning on the date of the employee’s death.

o   This seems that it would eliminate the well-established right of claimants for medical reimbursement from the time the living worker filed his claim.  This could be a costly change for many survivors.

o   Why has DEEOIC requested this change? 

o   What problem does it solve that offsets the additional burden on claimants? 

o   How many times has this problem occurred?

o   How does this change provide transparency or clarity?

o   How does this change benefit the claimant?

·         §30.5(jj) defines the time of payment as

o   The date an covered EEOICPA claimant, or legal representative, receives a paper check or

o   The date EEOICPA payment was received in the claimant’s bank.

Definitions and/or examples also need to be added for the following terms used in the proposed rules changes:        

1.    Probative value

2.    Explicit diagnosis

3.    Trustworthy records

4.    Probative factual evidence

5.    Fully rationalized report by a physician

6.    Extensive delays

 

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

§30.101 In general, how is a survivor claim filed?

 

·         §30.100(a), 30.101(a) requires that the worker or the survivor filing the claim must sign the claim form.

o   §30.5(jj) allows a legal representative to receive money for a claimant.  This needs to be true for this section as well.  Some people are too ill or disabled to sign a form. Shouldn’t there be a provision that a legal power of attorney can sign for them?

o   Why has DEEOIC requested this change? 

o   What problem does it solve that offsets the additional burden on claimants? 

o   How many times has this problem occurred?

o   How does this change improve transparency or clarity?

o   How does this change benefit the claimant?

·         §30.100(c) allows the time stamp of carriers other than the Post Office to determine the date a claim is considered filed.

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

·         §30.102 changes “minimum impairment rating” to “impairment rating”.

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

·         §30.103(b) tells where EEOICPA forms are located on the internet.  However, it does not answer the question.  Claimant often have problems with DOL not reviewing evidence provided.  This section does not address this.

·         Also, many elderly claimants do not have access to the internet.

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

·         §30.112(b)(3) removes the words, “self-serving” from their descriptions of affidavits.

·         §30.112(b)(3) may also require additional evidence from DOE for an affidavit verifying employment to be accepted.

o   This is a problem because DOE employment records are incomplete and data is missing.  A worker cannot be required to provide what doesn’t exist.  This is why the option of proving employment by a co-worker’s affidavit was put in place.

o   The term, “probative value” is not defined.  The lack of definition of this term has been a problem for years.  This leads to inequitable acceptance of employment evidence depending on the claims examiner’s opinion of what “probative” means.

o   This section will lead to workers whose employment should be accepted being excluded from EEOICPA.

o   Why has DEEOIC requested this change? 

o   What problem does it solve that offsets the additional burden on claimants? 

o   How many times has this problem occurred?

o   How does this change provide transparency or clarity?

o   How does this change benefit the claimant?

 

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

This seems a parallel of §30.112 except for medical records instead of employment records.  The same objections and questions apply.

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

Will be addressed in later sections.

§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?

·         §30.115(a) DOL will send non-SEC cancer claims to NIOSH for dose reconstruction.

·         30.115(2) dose reconstructions coming from NIOSH to DOL are now called “final dose reconstruction report”. 

o   These reports cannot be considered final until the claimant or authorized representative check them for errors and omissions.

·         Claimants will no longer be sent a copy of the dose reconstruction unless the claimant requests it. 

o   This is not acceptable.  Errors and omissions occur and these must go automatically to claimants and authorized representatives

o   Why has DEEOIC requested this change? 

o   What problem does it solve that offsets the additional burden on claimants? 

o   How many times has this problem occurred?

o   How does this change provide transparency or clarity?

o   How does this change benefit the claimant?

 

An Attempt at a Plain English Translation of EEOICPA Rules Changes, Part 2: Covered Illnesses

December 7, 2015

Last Thursday I started trying to break down DOL’s proposed rule changes into plain English.  Remember that I am not an attorney and cannot interpret the law.  I'm just a layperson struggling to understand what DOL is doing.  I’ve flagged possible problems that might occur in red.

 

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

·         Contains the new definition of “beryllium vendor facility” and the location of the definition.

·         Definition no longer includes facilities occupied by a beryllium vendor.  This could mean workers who are currently covered under EEOICPA will no longer be covered.

·         “Trustworthy records” is not defined.

 

§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?

·         Discusses how a beryllium employee proves employment and exposure as a “covered beryllium employee”.

o   Does not mention affidavits being used to prove employment.  This is a problem because beryllium vendor employment records are incomplete and data is missing.  A worker cannot be required to provide what doesn’t exist.  This is why the option of proving employment by a co-worker’s affidavit was put in place.

·         Removes the words, “or a facility owned, operated, or occupied by a beryllium vendor” from §30.206(a) (a)  Proof of employment at or physical presence at a DOE facility, or a facility owned, operated, or occupied by a beryllium vendor,…” and replaces with,or a beryllium vendor facility as defined in

§30.5(j)”

·         30.5(j) removes the qualification, “occupied by a beryllium vendor” only recognizing facilities owned or operated by a beryllium vendor.  This may mean some workers who are now covered under EEOICPA will no longer be eligible.

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

·         This section discusses medical evidence needed in a Chronic Beryllium Disease claim.

o   (a) references a section (e) which does not exist in either the old or new Regulations.  What was/is supposed to be in (e)?

o   Changes to (d) seem to change the criteria for establishing Chronic Beryllium Disease.  I strongly recommend an attorney take a look at this.

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

·         These changes just seem to eliminate extraneous words “of RECA and in EEOICPA”.

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

·         These changes seem to just eliminate extraneous words, “of RECA and in EEOICPA”.

§ 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?

·         Removes the words, “as appropriate” from, “(a)  HHS, with the advice of the Advisory Board on Radiation and Worker Health, has issued regulatory guidelines at 42 CFR part 81 that OWCP uses to determine whether radiogenic cancers claimed under Parts B and E were at least as likely as not related to employment at a DOE facility, an atomic weapons employer facility, or a RECA section 5 facility, as appropriate.”

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

·         These changes just seem to be to the location of definition of terms and the change from “medical doctor” to “licensed physician”.

§ 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?

·         These changes just seem to be to the location of definition of terms and the change from “medical doctor” to “licensed physician”.

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

·         These changes just seem to be the moving of the location of the definitions to §30.5(x) from §30.5(w).

·         This proposed change has a conflicting date with §30.5(w).  §30.5(w) uses the date August 13, 1942 and §30.230 uses the beginning date of January 1, 1942.

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

·         Adds the following language to §30.231(a), “If the only evidence of covered employment is a written affidavit or declaration subject to penalty of perjury by the employee, survivor or any other person, and DOE or another entity either disagrees with the assertion of covered employment or cannot concur or disagree with the assertion of covered employment, then OWCP will evaluate the probative value of the affidavit in conjunction with the other evidence of employment, and may determine that the claimant has not met his or her burden of proof under § 30.111.”  This language addition increases the burden of proof on the claimant.  This will mean workers with valid claims can have their claims denied because DOE records do not exist. EEOICPA was established because DOE did not keep accurate, or in some cases any records at all.  This raises the claimant’s burden of proof to an insurmountable level.

·         §30.231(b) removes the words,

o   OWCP site exposure matrices may be used to provide probative factual evidence that a particular substance was present at either a DOE facility or a RECA section 5 facility.” And substitutes “Information from the following sources may be considered as probative factual evidence for purposes of establishing an employee’s exposure to a toxic substance at a DOE facility or a RECA section 5 facility:

(1) To the extent practicable and appropriate, from DOE, a DOE sponsored Former Worker Program, or an entity that acted as a contractor or subcontractor to DOE;

(2) OWCP’s Site Exposure Matrices; or

(3) Any other entity deemed by OWCP to be a reliable source of information necessary to establish that the employee was exposed to a toxic substance at a DOE facility or RECA section 5 facility. “a reliable source of information necessary to establish…” is too vague.  The rules need to spell out what information OWCP considers to be reliable.  To not do this will lead to an inequity in claim adjudication since different OWCP employees will define “reliable” differently.  This will leave claimants and authorized representative guessing at what OWCP requires.  Issues like this have long been a problem in other areas of the program.  This will just extend that difficulty.

·         Needs to define what “trustworthy records” and “probative value” are.  The terms mean different things to different people.  This results in claimants not knowing what evidence it appropriate to submit.  Some claimants have experienced problems with DOL not considering official DOE facility documents to be trustworthy and of probative value. 

§ 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?

This section greatly increases the claimant’s burden of proof and will lead to valid claims being denied.

·         §30.232(1) seems change what is necessary to establish a covered and consequential illness.

·         Prior to this rule change a claimant only needed to supply a diagnosis of illness from a doctor and, if possible, a summary of the diagnostic information.  With this rule change claimants must find a doctor who is familiar enough with DEEOIC’s requirements to write an opinion regarding causation.  This will be an almost insurmountable barrier to claimants.  Doctors are not trained to write they type of letters and narratives that DEEOIC will accept.  This is probably the most common reason for valid claims being denied.  Adding another requirement for a doctor’s letter will kill many valid claims.

·         §30.232(2) requires “Any other evidence OWCP may deem necessary” to prove toxic exposure caused the worker’s illness.  This is too vague.  This is a moving target which will keep claimants from being able to provide the evidence OWCP requires.  This is already a problem in other areas of the program.

·         §30.232(2)(b) DOL needs to define a “fully rationalized medical report” and provide an example of it for physicians.  What DOL considers a fully rationalized medical report is extremely different from the reports doctors usually write.  The report DOL requires is extremely time consuming to construct.  Most doctors do not have the time required to do such a report even if they understood how to give DOL what it requires.

·         §30.232(b) in the old rules has been eliminated.  This section allows claimants to provide OWCP with other appropriate evidence.  I’m not sure if this is a problem or not. 

An Attempt at a Plain English Translation of EEOICPA Rules Changes, Part 3: Hearings and Adjudication

December 11, 2015

§ 30.300 What administrative process will OWCP use to decide claims for entitlement, and how can claimants obtain judicial review of final decisions on their claims?

·         Changes the title from “What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions?” 

·         Adds “Claimants may request judicial review of a final decision of FAB by filing an action in federal district court.” to the end of the section.

 

§ 30.301(b)(1) May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?

·         Seems that it may remove the possibility of making this request by electronic means since the wording, “electronic marker or other objective date mark” is removed.  This is odd since DEEOIC allows for information to be uploaded into the claimant’s file.  

 

§ 30.305(a) How does OWCP determine entitlement to EEOICPA compensation?

·         Changes “the dose reconstruction report calculated by HHS” to “the dose reconstruction report prepared by NIOSH”.

 

§ 30.306 What does the recommended decision include?

·         Changes “The recommended decision shall contain findings of fact and conclusions of law. The recommended decision may accept or reject the claim in its entirety, or it may accept or reject a portion of the claim presented.” to “The recommended decision shall include a discussion of the district office’s findings of fact and conclusions of law in support of the recommendation. The recommended decision may recommend acceptance or rejection of the claim in its entirety, or of a portion of the claim presented.”

 

§ 30.307 Can one recommended decision address the entitlement of multiple

claimants? replaces § 30.307  To whom is the recommended decision sent?

·         This is confusingly worded but it seems like it may eliminate the language on how the claimant and authorized representative must be notified.  It could be they mean the old § 30.307 becomes § 30.308 but it is not clear.

 

§ 30.310 What must the claimant do if he or she objects to the recommended

decision or wants to request a hearing?

·         §30.310(a) Changes “ contained in such decision, including HHS’s reconstruction of the radiation dose” to “discussed in such decision, including NIOSH’s reconstruction of the radiation dose”

§30.310(b) Changes “or on the date that such written statement is actually received by the FAB, whichever is the earliest determinable date.” to “ or on the date that such written statement is actually received, whichever is the earliest determinable date.”  Again this leaves out DEEOIC’s web portal for uploading the document directly into the claimant’s file.

§ 30.313 How is a review of the written record conducted?

·         Changes “any objection to HHS’s reconstruction of the radiation dose” to “any objection to NIOSH’s reconstruction of the radiation dose”.

§ 30.314 How is a hearing conducted?

·         §30.314(a) Adds “videoconference or other electronic means.” to list of ways a hearing may be conducted.

·         §30.314(b) Adds “The FAB reviewer may mail a hearing notice less than 30 days prior to the hearing if the claimant and/or representative waives the above 30-day notice period in writing.” And removes “Unless otherwise directed in writing by the claimant,” from the old section.

This potentially could keep a claimant from having enough time to prepare adequately for a hearing.  It also removes the control from the claimant and gives

it to DOL. One problem not touched upon by these changes is that a hearing is usually scheduled for an hour.  This is often not enough time for the claimant to present his objections given that often 20-30 minutes of the hearing is taken up by the hearing officer reading the history of the case.

§ 30.315 May a claimant postpone a hearing?

·         Adds “or if the claimant and/or representative cancels or fails to attend a scheduled hearing,” to the description of when a hearing can be eliminated.

§ 30.318 How will FAB consider objections to NIOSH’s reconstruction of a radiation dose, or to OWCP’s calculation of the recommended probability of causation, in a Part B claim for radiogenic cancer? is changed from § 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?

·         §30.318(a) Looks like NIOSH will be involved in hearings when there are questions about the IREP or dose reconstructions.  This is probably a good thing as many hearing officers are not able to understand these issues.

·         §30.318(b) looks like it is trying to deal with how to allow discussion of problems with dose reconstructions that are not completely methodology.  This is a tricky area and I can’t guess how this change will play out.

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

·         The change in this section seems to be about the method used to date when a reconsideration request is filed.  Since this includes “on the date that such written request is actually received,” it seems to me that this might cover a document uploaded electronically into a claimant file.

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

·         Adds, “new evidence of a diagnosed medical condition” as a qualifier for requesting a reopening of a claim.

·         Also seems to combine old (b) and (1) into new paragraph (b).  Not sure why this was done.

An Attempt at a Plain English Translation of EEOICPA Rules Changes, Part 4: Medical Treatment and Providers

December 12, 2015

§ 30.400 What are the basic rules for obtaining medical treatment?

·         §30.400(a) changes the requirement that in some instances the claimant “should consult OWCP prior to obtaining it.” to “consult OWCP prior to obtaining it through the automated authorization process described in § 30.700.”  §30.700 is aimed at providers, not claimants.  A worker who needs prior authorization is ill and probably elderly.  This places a large burden on someone who is seeking medical treatment and may not even have access to a computer.  This will lead to non-compliance because sick workers will not be able to figure this step out.  This will lead to medical bills not being paid.  Claimants must have the option of meeting this requirement by calling and talking to their claim examiners as they have in the past.

·         §30.400(c) adds “provider of medical services…so long as such provider possesses all applicable licenses required under State law and has not been excluded from participation in the program under subpart H of this part.” to qualified hospitals as who may provide services.  It seems to include doctor within “provider of medical services”.  It adds that drugs may be provided with the above.

·         Adds “may offset the cost of prior rental payments against a future purchase price, and may provide refurbished appliances where appropriate.” to the cost-effectiveness sentence.

·         Adds that DOL may contract with a specific provider for non-physician medical services or supplies.  This is too vague and needs to be spelled out.  This could cause problems in rural areas or with services. Contracting services have been a problem in other areas of the program and cannot be allowed to jeopardize a worker’s health as well.  A list of supplies and services DOL wants to contract for needs to be provided in the rules.

·         Add section §30.400(d) In circumstances when a covered employee dies after filing a claim but before such claim is accepted, OWCP will pay for medical treatment for all accepted illnesses, retroactive to the date that the employee filed the claim, if the deceased employee’s survivor(s) files a claim that is accepted under Part B and/or Part E of EEOICPA. If this occurs, OWCP shall only pay either the provider(s) or the employee’s estate for medical treatment that the employee obtained after filing his or her claim. In a case where the estate has closed this needs to allow payment to the claimant directly.  Also, there have been problems in the past with survivors being reimbursed for covered medical expenses that hospitals put into payment plans.  A way to deal with this should be included.

§ 30.403 Will OWCP pay for home health care, nursing home, and assisted living services? changed from § 30.403  Will OWCP pay for the services of an attendant?

·         This section is substantially changed. In the old rules medically necessary home health aide or licensed practical nurse services were covered.  If they were denied as medically necessary the worker could “utilize the adjudicatory process described in subpart D…”

·         §30.403(a) allows medically necessary skilled nursing as well as registered nurses, licensed practical nurses, home health aide but subjects these all to pre-authorization requirements.  While there is nothing wrong with pre-authorization per se, the requirements that DOL uses make it very difficult for workers’ doctors to the extent that some have refused to do the pre-authorization.  As part of the pre-authorization DOL nurse consultants have called family members to ask whether they think the sick worker “really needs all that home health care” or calls to doctor to get him to change the home health care to a lesser amount.  This is inappropriate and this section would be a good place to protect sick workers from this kind of predatory behavior.  It has been suggested to DOL, and apparently refused, that they develop a form similar to what other OWCP programs use to lessen the burden on the doctors.

·         §30.403(b) has been added.  This seems to reiterate the change of requiring pre-authorization for services.

·         §30.403(c) has been added.  It references form EE–17A and EE-17B, which have not been included, nor are the available on the internet.  These forms need to be added to the rules.  Without them this section is too vague.

·         This section also adds the treating physician provide a “letter of medical necessity” without specifying what is to be in the letter or providing a sample letter.  This is too vague and places too high a burden on the sick worker and treating physician.  This type of letters, without definition or example, have been a problem for claimants/doctors in other areas of the program and have caused valid claims to be denied.

·         This section requires a “timely face to face physical examination” of the sick worker.  Timely is not defined and is too subjective.  Also, as DOL’s contracting doctors are not required to do a face to face exam in other parts of the program this is an unequal situation.

·         This section codifies changes DOL made previously to require pre-authorization for services.  These changes were inappropriately made as policy rather than regulations and their requirements restrict the workers’ statutory benefit to services.

·         The section adds that if a sick worker to “utilize the adjudicatory process” if they don’t agree with a denial of services.  This is not something many sick workers have the stamina to do.  Many sick workers are not able to wait months for medical care while the claim is adjudicated again. This could cause severe health problems for sick workers.  This is potentially a reduction/loss of benefits.

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

·         §30.405(b) is changed from the reasons to accept a change of physician being “sufficient” to requiring they are “credible and supported by probative factual and/or medical evidence, as appropriate.”  Probative evidence is not defined and is too subjective, as is “as appropriate”.  Sometimes it is necessary for a person to change doctors for reasons not discussed in this section and these reasons can be life-threatening.  This section does not address this.

·         §30.405(c) also adds states that DOL may deny a change of physician if it determines “that the reasons submitted are not both credible and supported by probative evidence.” Again, this is too subjective and needs to be spelled out.  It will lead to unequal treatment of claimants, as well as risk to health and life, as different claim examiners will define “credible” and “probative evidence” differently.

 

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

Adds (c) to this section which allows DOL to close the claim and suspend adjudication on any pending matters if a worker refuses to attend a second opinion examination.

·         Closing any pending matters is punitive and has no place in a remedial statute.  Being too sick to travel, not being able to travel as far as required for the second opinion exam are two reasons I can think of why a worker might refuse this exam.  This section does not address those but treats the sick worker as an obstinate child.

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

·         Adds (d) which allows DOL to close the claim and any pending matters if worker refuses to attend a referee medical exam.  See comments for §30.410(c).

 

§ 30.416 How and when should medical reports be submitted?

·         Makes it mandatory that the treating physician’s reports have a handwritten or digital signature.  Removes the option of the physician using a signature stamp. This is another hoop that the already overworked treating physicians must jump through.  It adds no value.  A signature stamp is as binding as a handwritten signature.  Also, many doctor’s reports do not need to be signed at all.  A similar issue where DOL stopped accepting X-ray reports that were unsigned caused a lot of difficulty to claimants and doctors and added no value.

An Attempt at a Plain English Translation of EEOICPA Rules Changes, Part 5: Survivors, Representatives and Providers

December 12, 2015

 § 30.500 What special statutory definitions apply to survivors under EEOICPA?

·         §30.500(a)(2) changes the definition of a child from “a recognized natural child of a deceased covered Part B employee or deceased covered Part E employee, a stepchild who lived with that individual in a regular parent-child relationship, and an adopted child of that individual.” to “only a biological child, a stepchild or an adopted child of that individual.”  Not really sure what the difference is.

·         Adds §30.500(1) definitions for a Part E “covered child”.

·         Adds §30.500(2) definitions for “incapable of self-support”

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

·         §30.501(a) seems to just change the section numbers for Part B.

·         §30.501(b) seems to just change the section numbers for Part E.

§ 30.502 When is entitlement for survivors determined for purposes of EEOICPA?

·         Seems to only change the section numbers.

§ 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?

·         30.509(c) changes “impairment determinations possible under the AMA’s Guide” to impairment determinations possible under the 5th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s

Guides).

§ 30.600 May a claimant designate a representative?

Adds(c)(2) which states the worker’s designated representative does not have the authority to sign the forms (EE-1, EE-2) necessary to initiate a claim.  This will put an additional burden on some claimants.  Some are unable to competently sign their own forms and there is no provision for a person with a Power of Attorney to sign for the sick worker.  Also, this will slow down some claims while the claim forms are mailed back and forth between the claimant and their representative.  As far as I can see this provides no benefit to anyone but increases the burden on the claimant.

§ 30.601 Who may serve as a representative?

·         This section restricts who can be a claimant’s representative and codifies a change DOL made several years ago.  The previous rule stated, “A claimant may authorize any individual to represent him or her in regard to a claim under EEOICPA, unless that individual’s service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208).”   The proposed rule states, “A claimant may authorize any individual to represent him or her in regard to a claim under EEOICPA, unless that individual’s service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208) or the standards regarding conflicts of interest adopted by OWCP.”  DOL has never published these standards so we have to guess what they are but it is common knowledge that they instituted this change to keep employees of Home Health Care agencies from acting as an authorized representative to sick workers because they felt that nurses, who operate under ethics guidelines, would push for more home health care than needed rather than what the patient actually needs. This is a restriction of the sick worker’s right to designate whomever they feel is best suited to represent them.  Many sick workers have no one other than their nurses to represent them.  This means their burden under the program is greatly increased since they cannot have the person they feel best knows their needs represent them.  Licenses health care providers have standards they need to meet to keep their licenses.  This should be enough to satisfy DOL that they are not committing fraud.

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

·         This section spells out the amounts an authorized representative can charge a sick worker.

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

·         Removes the April 30, 2003 date.

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

·         Removes the April 30, 2003 date.

§ 30.700 In general, what responsibilities do providers have with respect to enrolling with OWCP, seeking authorization to provide services, billing, and retaining medical records?

·         Wording of the title is changed from § 30.700  What kinds of medical records must providers keep?

·         §30.700(a) is added.  This section requires all providers to enroll with OWCP or its bill paying contractor to submit bills for medical care.

·         §30.700(b) is added.  This section requires providers request prior authorization when necessary.  Does not spell out when prior authorization is necessary.  This could be a problem for claimants who may be threatened for non-payment for medical procedures for covered conditions.  There needs to be a way to protect sick workers from this.

§ 30.701 How are medical bills to be submitted?

·         §30.701(a) adds, “OWCP may withhold payment for services until such report or evidence is provided.”  This is already causing problems for claimants.  DOL won’t pay their bills for covered medical conditions and doctors and hospitals are dunning sick workers for payment and/or refusing to take the EEOICPA medical card.  This means either sick workers do not get additional care they need and/or they must deal with the stress of being hounded to pay because DOL won’t.  There needs to be a solution to provider non-compliance that does not place the sick worker in the middle. DOL needs to spell out a path to keep sick workers from being hounded by bill collectors for bills that DOL is responsible for.

·         Form-1500 is to be used for many providers.  This has been a problem for sick workers trying to be reimbursed for covered medical conditions.  Claimants have lost reimbursement because some providers did not use this form in the past or providers who have already been paid do not want to mess with providing the form to the claimant.  DOL needs to spell out a path for these workers to be reimbursed without placing an additional burden on sick workers.

·         §30.701(b) lists that a provider needs to provide DOL with specific codes.  The new rules changes removes, “Where no code is applicable, a detailed description of services performed should be provided.” And replaces it with, “When no code

is submitted to identify the services performed, the bill will be returned to the provider and/or denied.”  Again, it’s not the provider or DOL who suffers from this rule change, it’s the sick worker.  Putting the sick worker in the middle of an argument between DOL and a provider is not appropriate.  The law does not say that a sick worker will receive medical care when his provider is compliant.  It says the sick worker will receive medical care.  There MUST be another path for enforcing compliance that does not cost the sick worker his lawful medical benefits or cause them undue stress from collection agencies.

·         §30.701(c) seems like is updating from ICD-9 codes to ICD-10 codes.

·         §30.701(1)(i) removes, “The provider shall identify each outpatient radiology service, outpatient pathology service and physical therapy service performed, using HCPCS/CPT codes with a brief narrative description.  The charge for each individual service, or the total charge for all identical services, should also appear on the form.”  I’m not sure how this will affect the sick workers.  It may mean that the extra requirements will slow down sick workers’ medical care.

·         §30.701(1)(ii) seems like it has a placeholder where it says, “OWCP may adopt a Home Health Prospective Payment System (HHPPS), as developed and implemented by the Centers for Medicare and Medicaid Services (CMS) within HHS for Medicare,…” and totally removes the current way this is being done. Since the previous method of paying for outpatient hospital services has been removed this seems like the “may” is probably a “will”.  This is out of my area of expertise but I think more needs to be known about how this will affect sick workers’ rights to outpatient medical care.  Are Medicare and Medicaid equivalent to a sick worker’s medical card or do they carry more restrictions?  If there are differences how will these be resolved so the sick worker does not lose medical benefits?  I feel like this section needs to be evaluated strenuously to make sure the sick workers don’t suffer for DOL’s convenience.

·         The only change in §30.701(2) seems to be changing, “promptly for processing” to “promptly to OWCP”.

·         §30.701(2) makes the same change as above for nursing homes and adds, “Such charges shall be subject to any applicable OWCP fee schedule.”  I’m not sure if this could reduce the sick workers coverage for nursing home payments for not.

·         §30.701(d) adds “appropriate and properly billed in accordance with accepted industry standards” to the first sentence in (d), “By submitting a bill and/or accepting payment, the provider signifies that the service for which payment is sought was performed as described and was necessary”.  The section then goes on to spell out what is meant by using an example.

·         §30.701(e) removes “Otherwise, the bill may be returned to the provider for correction and resubmission.” and replaces it with, “Otherwise, OWCP may deny the bill, and the provider must correct and resubmit the bill.” Again, this puts the sick worker in the middle and potentially being harassed to pay a bill that DOL is responsible for.  It is unfair to penalize a sick worker for an issue they have no control over.  This is between DOL and the provider.  Another path needs to be developed that leaves the sick worker out of the squabble.

An Attempt at a Plain English Translation of EEOICPA Rules Changes, Part 6: Providers

December 13, 2015

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

·         §30.702(a) adds the form to be used for reimbursement for hospitals.  This section still requires the sick worker to provide information on Form 1500.  Many times doctor who have been paid do not want to bother providing the sick worker with the information needed for reimbursement.  There needs to be another pathway for the sick worker to be reimbursed when a provider won’t comply.

·         §30.702(1) updates the ICD-9 code requirement.

·         This section also adds, “If no code or description is received, OWCP will deny the reimbursement request and correction and resubmission will be required.”  Denying the reimbursement when a provider won’t comply is not appropriate.  DOL should work with the provider to ensure compliance rather than penalize the sick worker.

·         §30.702(2) adds, " or a provider billing form indicating a zero balance due” to the methods of acceptable proof of payment. This is an improvement and will be of benefit to claimants!

·         §30.702(d) allows for the electronic signature of a provider and expands on how adjudication of reimbursement issues will proceed.

§ 30.705 What services are covered by the OWCP fee schedule?

·         §30.705(b) states that while nursing homes are currently not covered by DOL’s schedule of maximum charges they may be in the future.  I’m not sure how this can be done without passing the cost onto the sick worker.  This section should contain details on how this will not become the sick worker’s responsibility and how DOL will ensure this does not happen.

§ 30.706 How are the maximum fees for professional medical services defined?

·         This section discusses fee schedules in various parts of the country.  I’m not clear on how this will impact sick workers.

§ 30.707 How are payments to providers calculated?

  • This section discusses fee schedules in various parts of the country.  I’m not clear on how this will impact sick workers.

§ 30.709 How are payments for medicinal drugs determined?

·         Adds, “Unless otherwise specified by OWCP,” to the first sentence.  It also states that DOL may require the use of specific providers for certain medications.  There is no information given on why this is being considered or what the effect would be on sick workers.  Potentially this could limit a sick worker’s ability to get needed medication but this change does not offer enough detail to tell.

·         §30.709(a) adds, “which will not be affected by the location or type of provider dispensing the medication.” to the sentence, “OWCP will establish the dispensing fee.”

·         §30.708 (c) allows DOL to require generic medications when available.  This should only be used when the treating physician agrees the generic medication is appropriate for the patient.

§ 30.710 How are payments for inpatient medical services determined?

·         This section discusses how hospital charges will be paid.  I’m not clear on what effect this might have on sick workers’ medical costs.

§§ 30.711 through 30.713

·         Changes the numbering to §§ 30.712 through 30.714

§ 30.711 How are payments for outpatient medical services determined?

·         This new section discusses how DOL will classify and pay for outpatient medical benefits. I’m not clear on what effect this might have on sick workers’ medical costs.

§ 30.712 When and how are fees reduced?

·         Replaces the old §30.711.

·         §30.711(a) adds, “and will pay no more than the maximum allowable fee for that procedure.” to the sentence, OWCP shall accept a provider’s designation of the code to identify a billed procedure or service if the code is consistent with medical reports and other evidence”.

·         Where OWCP used to supply the code if it were missing they now will return it to the provider for correction.

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

·         This section is substantially different from the previous version and discusses codes for providers and what can be charged.  I don’t know what effect this will have on claimants.

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

·         This section adds that providers may be excluded from being paid under EEOICPA if they have failed to inform DOL of a change in their status

·         Or engaged in conduct that DOL finds to be misleading, deceptive, or unfair.  Misleading, deceptive and unfair need to be defined.  If DOL means fraudulent this should be spelled out so a sick worker won’t be caught in the middle of a dispute between DOL and a provider and lose medical benefits temporarily.

§ 30.716 What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies? is a subject I don’t know enough about to comment on.

§30.717 When are OWCP’s exclusion procedures initiated? is a subject I don’t know enough about to comment on.

§ 30.718 How is a provider notified of OWCP’s intent to exclude him or her? is a subject I don’t know enough about to comment on.

§ 30.719 What requirements must the provider’s response and OWCP’s decision meet? is a subject I don’t know enough about to comment on.

§ 30.720 How can an excluded provider request a hearing? is a subject I don’t know enough about to comment on.

§ 30.721 How are hearings assigned and scheduled? is a subject I don’t know enough about to comment on.

§ 30.723 How will the administrative law judge conduct the hearing and issue the recommended decision? is a subject I don’t know enough about to comment on.

§ 30.724 How does a recommended decision become final? is a subject I don’t know enough about to comment on.

§ 30.725 What are the effects of nonautomatic exclusion? is a subject I don’t know enough about to comment on.

§ 30.726 How can an excluded provider be reinstated? is a subject I don’t know enough about to comment on.

 

An Attempt at a Plain English Translation of EEOICPA Rules Changes, Part  7 : Wage Loss

December 14, 2015

December 3rd I started trying to break down DOL’s proposed rule changes into plain English.  Remember that I am not an attorney and cannot interpret the law.  I'm just a layperson struggling to understand what DOL is doing.  I’ve flagged possible problems that might occur in red.

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

·         Adds the definition of a covered illness to (c).

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

·         §30.801(a) changes the calculation from quarters to months to determine a sick worker’s average annual wage.

·         This section adds, “for the 36 months preceding the month during which he or she first experienced wageloss due to exposure to a toxic substance at a DOE facility” to how the wage loss is calculated. §30.801(c) changes the measurement from quarter to month and defines month and defines unemployed as a person making less than $250 a month.

·         §30.801(e) revises the amount made per quarter from $700 to $750.

·         Adds §30.801(f) to define “trigger month” as to when a worker first experienced wage loss due to DOE caused exposures.

·         Adds §30.801(g) to define “wages” as “Salaries, overtime compensation, sick leave, vacation leave, tips, and bonuses received for employment services” and excludes “capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers’ compensation benefits, medical retirement benefits, and Social Security benefits”.

§ 30.805 What are the criteria for eligibility for wage-loss benefits under Part E?

·         Title is changed from § 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?

·         §30.805(a) is changed dramatically.  The old section (a) says DOL can use Social Security information for wage proof as well as other probative evidence.  The new (a) does not mention Social Security and states that the burden of proof is on the claimant to show they

o   (1)earned wages from a job,

o   (2)experienced  loss of wages in a particular month,

o   (3)the loss of wages was caused by the covered illness,

o   (4)what their average annual wage was,

o   (5)what their normal retirement age would have been,

o   (6)what their % of average annual wage was for each year up to retirement age

o   (7)how many years where the worker earned 50% or less than their average wage,

o   (8)how many years they lost more than 50% and less than 76% of their average wage

In removing DOL’s responsibility to contacting Social Security for the worker’s wages and adding all the additional conditions to be met it seems likely that almost no workers will be able to meet the bar DOL has raised to obtain wage loss.  It would be interesting to look at the how many workers qualify for wage loss by age and how many have had wage loss granted to them. As of the end of fiscal year 2012 only 2,646 workers had been awarded wage loss so it has been a difficult part of the program historically to get benefits under.  I suspect these changes will make is much harder.

·         §30.805(b) changes from the old rule which states that DOL requires the submission of “rationalized medical evidence of sufficient probative value” to establish the wage loss period to the new rule stating DOL will discontinue development of a wage loss claim at any point the SICK worker is unable to meet the burden of proof.  I suspect DOL withdrawing all assistance from sick workers on wage loss claims most sick workers will not prevail.  DOL has created a very high bar with this section.

§ 30.806 What kind of medical evidence must the claimant submit to prove that he or she lost wages due to a covered illness?

·         This title has changed from, § 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?

·         The old section states that a sick worker may provide additional evidence of wage loss but that the determination will be made at DOL’s discretion.  The new section restricts this to just “rationalized medical evidence of sufficient probative value” and defines this as “medical evidence based on a physician’s fully explained and reasoned decision (see § 30.805(a)(3))” and adds that loss in wages in the “trigger” month can’t be due to being laid off or voluntary retirement.  Again, claimants will have extreme difficulty finding a physician who will be able to write a letter than meets the requirements that DOL needs.  Doctors are trained to write certain letters.  These letters do not meet DOL’s requirements. The writing of these letters to prevail with DOL require many hours of work and doctors don’t have the time even if they are willing.  This means valid wage loss claims will be denied.

§ 30.807 What factual evidence does OWCP use to determine a covered Part E employee’s average annual wage?

·         This is a new section.

·         §30.807(a) allows DOL to rely on Social Security information.

·         This section also states that DOL may rely on other “probative evidence” of wages and MAY ask the sick worker for additional evidence.

·         §30.807(b) discusses how a sick worker who disagrees with DOL’s evidence may provide other business records to refute DOL’s evidence, but DOL will make the determination on whether they are authentic or not.

·         DOL will then use its discretion on the sick worker’s average wage and wage loss.

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

·         §30.810(a) changes the computation period from quarters to months and uses the “trigger” month.

·         This section describes how DOL will do it’s calculations.

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

·         Seems to just change the time period from quarter to month.

§ 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?

·         §30.901(a) removes the word “minimum” from in front of “impairment rating”.

·         §30.901(b) removes the phrase, “any specific training in use of the AMA’s Guides” from the qualifications physicians must have to perform impairment ratings. 

·         §30.901(b) removes this sentence, “The minimum impairment rating shall be determined in accordance with the current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides).”  Does this mean that an edition other than the 5th can be used? 

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

·         §30.902(b) has been added. This section codifies DOL’s policy of using whole person impairment and states that an award may be reduced based on one of the impairment rating involved being reduced.

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

·         §30.908(b) seems to only make the change of removing “minimum” from before “impairment rating”.

·         Adds §30.908(c) which states that an employee submitted additional impairment evaluation which is different from the one DOL has relied upon FAB will review all the evidence and determine which one it considers probative.  Probative is not defined.  In the past this has usually meant that DOL contracting doctors’ impairment evaluation out rank one a sick worker provides.  DOL needs to spell out it’s criteria for what is probative.

 

 

 

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