[Federal Register Volume 67, Number 157 (Wednesday, August 14, 2002)]
[Rules and Regulations]
[Pages 52841-52857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20459]


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DEPARTMENT OF ENERGY

10 CFR Part 852

RIN 1901-AA90


Guidelines for Physician Panel Determinations on Worker Requests 
for Assistance in Filing for State Workers' Compensation Benefits

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is today publishing a final 
rule providing procedures to implement Part D of the Energy Employees 
Occupational Illness Compensation Program Act of 2000 under which a DOE 
contractor employee or an employee's estate or survivor can seek 
assistance from the DOE Office of Worker Advocacy (Program Office) in 
filing a claim with the appropriate State workers' compensation system 
based on an illness or death that arose out of exposure to a toxic 
substance during the course of employment at a DOE facility. These 
procedures deal with how: (1) An individual may submit an application 
to the Program Office for review and assistance; (2) the Program Office 
determines whether to submit an application to a Physician Panel; (3) a 
Physician Panel determines whether the illness or death of a DOE 
contractor employee arose out of and in the course of employment by a 
DOE contractor and through exposure to a toxic substance at a DOE 
facility; (4) the Program Office processes a determination by a 
Physician Panel; and (5) appeals may be undertaken.

EFFECTIVE DATE: September 13, 2002.

FOR FURTHER INFORMATION CONTACT: Ms. Loretta Young, telephone: 202-586-
2819; fax: 202-586-0956; e-mail: [email protected]; address: 
Office of Advocacy, EH-8, U.S. Department of Energy, 1000 Independence 
Avenue, Washington, DC 20585.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Discussion of Rule
III. Regulatory Review and Procedural Requirements
    A. Review under Executive Order 12866
    B. Review under the Regulatory Flexibility Act
    C. Review under the Paperwork Reduction Act
    D. Review under the National Environmental Policy Act
    E. Review under Executive Order 13132
    F. Review under Executive Order 12988
    G. Review under the Unfunded Mandates Reform Act
    H. Review under the Treasury and General Government 
Appropriations Act, 1999
    I. Review under Executive Order 13211
    J. Congressional Notification

I. Introduction

    Part A of the Energy Employees Occupational Illness Compensation 
Program Act of 2000 (``the Act'') (42 U.S.C. 7384, et seq.) establishes 
a program for compensating covered DOE and DOE contractor employees, as 
well as covered employees of certain private companies that did work 
for DOE and its predecessor agencies, including work involved in 
nuclear weapons production (Part A program). Covered workers with 
certain illnesses, including chronic beryllium disease, radiation-
induced cancers, and silicosis, may be eligible for specified Federal 
benefits under the Part A program. Executive Order 13179 (65 FR 77487, 
December 7, 2000) assigns the Department of Labor (DOL) primary 
responsibility for that program. Workers with illnesses eligible for 
compensation under the Part A program, as well as workers with 
illnesses not eligible for the Part A program, may also apply to their 
respective State workers' compensation systems if they wish to receive 
benefits not provided by the Federal compensation system, notably lost 
wages and benefits for permanent partial disability.
    Part D of the Act (42 U.S.C. 7385) authorizes the Secretary of 
Energy to enter into an agreement with each State to provide assistance 
to a DOE contractor employee in filing a claim under that State's 
workers' compensation system for an illness caused by exposure to a 
toxic substance at a DOE facility (``State Agreement''). An applicant 
can submit an application to the Program Office at DOE for assistance 
in filing a claim with that State's workers' compensation system. If 
the application comes within the terms and conditions of the relevant 
State Agreement and contains reasonable evidence that the illness or 
death of a covered worker may be related to employment at a DOE 
facility, then DOE must submit the application to a Physician Panel 
established under the

[[Page 52842]]

Act to determine the validity of the applicant's claim that the illness 
or death arose out of exposure to a toxic substance during the course 
of employment at a DOE facility. Section 3661(d) of Part D of the Act 
provides that a Physician Panel must make its determination ``under 
guidelines established by the Secretary [of Energy], by regulation.'' 
If a Physician Panel makes a positive determination and the Program 
Office accepts it, then the Program Office must assist the applicant in 
filing a claim with the relevant State's workers' compensation system. 
In addition, DOE may not contest the applicant's workers' compensation 
claim or any award made to settle the claim to the extent such claim or 
award is based on the same health condition that was the subject of a 
positive determination by a Physician Panel. And, to the extent 
permitted by law, DOE may direct a DOE contractor not to contest such a 
claim or award. Furthermore, if the DOE contractor employer contests 
the claim or award, the costs of contesting the claim or award are not 
allowable costs under a DOE contract.
    Part D operates to ensure that DOE will assist, and not hinder, the 
processing of an applicant's claim under a State workers' compensation 
system if the claim is based on the same health condition that was the 
subject of a positive determination by a Physician Panel. DOE will not 
contest and DOE will direct its contractors not to contest such a 
claim. Part D, however, does not federalize State workers' compensation 
standards, or affect the normal operation of State workers' 
compensation systems other than the limits Part D places on the extent 
to which DOE and DOE contractors can contest certain claims. Part D 
does not expand or contract the scope of any State workers' 
compensation system, and does not change the rights, obligations, 
conditions, and compensation amounts for a claimant under any such 
system. Thus, significant variations will continue to exist among State 
workers' compensation systems with respect to matters such as benefit 
levels, length of coverage, and the types and computation of medical 
costs, lost wages and disabilities eligible for compensation. Moreover, 
neither Part D nor DOE's rules implementing Part D will make a worker 
eligible for compensation under a State workers' compensation system if 
the worker is not otherwise eligible. However, use contract 
administration to encourage DOE contractors to pay workers' 
compensation claims against which they might have technical defenses 
not going to the question of whether a contractor employee's illness 
arose out of employment at DOE. DOE will seek to carry out this 
statutory mandate faithfully.
    DOE published a notice of proposed rulemaking (NOPR) under Part D 
on September 7, 2001, 66 FR 46742. DOE received numerous comments on 
the NOPR during the comment period, and continued to receive comments 
after the close of the comment period from various Members of Congress 
and their staffs, as well as other commenters.

II. Discussion of Rule

A. What Is The Purpose of This Rule?

    The rule establishes procedures for implementing Part D of the Act. 
Section 852.1(a) of the final rule provides that these procedures 
address how: (1) An individual may obtain and submit an application to 
the Program Office for review and assistance; (2) the Program Office 
determines whether to submit an application to a Physician Panel; (3) a 
Physician Panel determines whether the illness or death of a DOE 
contractor employee arose out of and in the course of employment by a 
DOE contractor and through exposure to a toxic substance at a DOE 
facility; (4) the Program Office processes a determination by a 
Physician Panel; and (5) appeals may be undertaken.

B. What Is the Scope of This Rule?

    Section 852.1(b) makes clear that the procedures only cover 
applications that meet three criteria. First, the application must be 
filed by or on behalf of a DOE contractor employee, or a deceased 
employee's estate or survivor. Second, the application must be based on 
the illness or death of DOE contractor employee that may have been 
caused by exposure to a toxic substance. Third, the application must be 
based on an illness or death that may have been related to employment 
at a DOE facility.
    Consistent with the statutory emphasis on State Agreements as a 
precondition for action under Part D of the Act, section 852.1(c) 
provides that all DOE actions under the Part D program must be pursuant 
to a relevant State Agreement and consistent with its terms and 
conditions.

C. What Definitions Are Used in This Rule?

    The rule contains definitions of ``Act'', ``Applicant'', ``DOE'', 
``DOE contractor employee'', ``DOE facility'', ``Physician Panel'', 
``Program Office'', ``State Agreement'', and ``Toxic Substance''.

D. What Is the Act?

    The Act is the Energy Employees Occupational Illness Compensation 
Program Act of 2000 (42 U.S.C. 7384, et seq.)

E. Who Is an Applicant?

    An applicant is an individual seeking assistance from the Program 
Office in filing a claim with the relevant State workers' compensation 
system, including but not limited to a living DOE contractor employee, 
the estate of a deceased DOE contractor employee, or any survivor of a 
deceased DOE contractor employee who is eligible to apply for a death 
benefit or a survivor's benefit under the State workers' compensation 
system for which the applicant is seeking assistance in filing a claim.
    Proposed section 852.2 had defined an applicant as a DOE contractor 
employee or the employee's estate seeking assistance from the Program 
Office in filing a claim with the relevant State workers' compensation 
system. In the final rule, the definition has been extended to 
survivors because State workers' compensation systems generally provide 
income benefits to specific survivors, notably spouses and dependent 
children of deceased workers. The final rule permits such individuals 
to apply to DOE for assistance in filing for State workers' 
compensation benefits, based upon the illness or death of the deceased 
DOE contractor employee.

F. Who Is a DOE Contractor Employee?

    Section 852.2 defines a DOE contractor employee to be an individual 
who is or was in residence at a DOE facility as a researcher for one or 
more periods aggregating at least 24 months, or an individual who is or 
was employed at a DOE facility by either an entity that contracted with 
DOE to provide management and operating, management and integration, or 
environmental remediation at the facility, or a contractor or 
subcontractor that provided services, including construction and 
maintenance, at the facility. This definition repeats the language used 
to define a DOE contractor employee in section 3621(11) of the Act and 
is the same as the definition in the NOPR that referenced the 
definition found in section 3621(11) of the Act. DOE believes 
incorporating the actual statutory language into the rule will make the 
rule more understandable and easier to use.
    The term ``DOE contractor employee'' does not include all employees 
eligible for the Part A program. It does not

[[Page 52843]]

include atomic weapons or beryllium vendor employees who were not 
employed by a DOE contractor at a DOE facility. In addition, it does 
not include Federal employees.
    A commenter stated that the definition of a DOE contractor employee 
needs to include subcontractor employees. DOE agrees that subcontractor 
employees are covered by Part D of the Act, but no change in the rule 
is necessary to confirm this coverage. The definition of a DOE 
contractor employee clearly includes an individual who is or was 
employed at a DOE facility by a subcontractor that provided services at 
that facility.

G. What Is a DOE Facility?

    As with the definition of DOE contractor employee, section 852.2 of 
this final rule defines ``DOE facility'' by repeating the definition 
found in section 3621(12) of the Act, rather than merely cross-
referencing the statutory definition as the proposed rule did. This is 
a nonsubstantive change to the proposed rule, and is made only for the 
purposes of clarity in the text of the final rule. ``DOE facility'' 
thus is defined as any building, structure, or premise, including the 
grounds upon which such building, structure, or premise is located in 
which operations are, or have been, conducted by, or on behalf of, DOE 
and with regard to which DOE has or had a proprietary interest; or 
entered into a contract with an entity to provide management and 
operation, management and integration, environmental remediation 
services, construction, or maintenance services. Further, this 
definition specifically excludes facilities covered by Executive Order 
No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to 
the Naval Nuclear Propulsion Program. DOE has published a list of 
facilities it considers to be DOE facilities for purposes of the Act. 
(66 FR 4003, January 17, 2001; revised 66 FR 31218, June 11, 2001).

H. What Are Physician Panels?

    Physician Panels are appointed by the Secretary of Health and Human 
Services (HHS) in response to requests by DOE pursuant to Part D of the 
Act. Physician Panels provide DOE with impartial and independent 
determinations as to whether the illness or death of a DOE contractor 
employee arose out of and in the course of employment by a DOE 
contractor and exposure to a toxic substance at a DOE facility. 
Physician Panels may be asked to review new applications that have not 
undergone prior Physician Panel review, or to reexamine applications 
that have already undergone Physician Panel review.

I. What Is the Program Office?

    The Program Office is the DOE Office of Worker Advocacy or any 
other DOE office subsequently designated by the Secretary of Energy.

J. What Is a State Agreement?

    Section 852.2 defines ``State Agreement'' as an agreement 
negotiated between DOE and a State that sets forth the terms and 
conditions for dealing with an application for assistance under Part D 
of the Act in filing a claim with the State's workers' compensation 
system. The existence of a State Agreement with a particular State is 
necessary before the Program Office can refer to a Physician Panel a 
claim by an applicant who will file his/her worker's compensation claim 
in that State. Part D is clear that any action by DOE must be in 
accordance with the terms and conditions of the relevant State 
agreement.

K. What Is a Toxic Substance?

    Section 852.2 defines ``toxic substance'' as ``any material that 
has the potential to cause illness or death because of its radioactive, 
chemical, or biological nature.'' This definition is the same as that 
proposed in the NOPR. DOE believes that this definition is consistent 
with the intent of Part D of the Act and will permit DOE to assist 
claimants with claims based on illnesses or deaths that arose from 
exposure to toxic substances to the extent such claims are recognized 
by a State workers' compensation system.
    There were a number of comments on the NOPR definition of ``toxic 
substance.'' Many commenters supported the NOPR definition, though 
others suggested modifications to the definition. One commenter 
suggested that noise should be included as a toxic substance. DOE 
understands that noise can cause harm to workers in certain situations. 
However, the dictionary defines ``toxic'' as ``of, relating to, or 
caused by a poison or toxin.'' DOE does not believe that noise operates 
to poison people because it does not injure by chemical action. Hence, 
it does not fit comfortably within the ordinary meaning of ``toxic 
substance.'' Neither the text of Part D nor its legislative history 
suggests otherwise.
    Another commenter suggested that only chemicals be considered toxic 
substances for the purpose of the rule. However, radioactive or 
biologically harmful substances are commonly described as being 
``toxic,'' and these substances fit comfortably within the ordinary 
meaning of ``toxic substance.'' Given the content of the legislation, 
DOE does not believe it would be consistent with the general thrust of 
the Act to limit ``toxic substances'' to chemicals and to exclude other 
substances, or to define the term solely by reference to the chemical 
properties of a substance and to ignore radioactive or biological 
properties.

L. How Does an Individual Obtain and Submit an Application for Review 
and Assistance?

    Section 852.3 describes how an individual obtains and submits an 
application for review and assistance. An application can be obtained 
in person from the Program Office, from any Resource Center, and from 
any DOE-sponsored Former Worker Program project. A Resource Center is a 
publicly accessible office administered jointly by DOE and DOL for the 
purpose of assisting an individual in applying for assistance or 
benefits under the programs established under the Act. There are 
currently ten Resource Centers located throughout the United States. 
There are presently approximately one dozen Former Worker Program 
projects throughout the United States. These pilot projects currently 
offer screening examinations for the detection of occupational 
illnesses for individuals formerly employed at some DOE facilities. The 
Program Office's current mailing address, phone number and web site, at 
time of publication of this final rule are included in this section. 
Any future changes in this contact information will be published in the 
Federal Register and noted on the Program Office's web site.
    A commenter suggested that applications should also be obtainable 
in person from any DOE Operations or Area Offices, or from an employer 
who is currently a DOE contractor. Other commenters requested that 
section 852.3 include the Program Office's mailing address and web 
site. DOE finds that it would be logistically difficult for the Program 
Office to assure that complete application packages would be available 
at all times from all of the many DOE contractor facilities and DOE 
Operations and Area Offices. DOE believes that the nationwide network 
of Resource Centers, coupled with the availability of applications 
through mail or telephone requests to the Program Office, or in a 
printable format, from the Program Office's web site, provide adequate 
accessibility to application materials. The program has and will 
continue to be publicized so that potential applicants are aware of the

[[Page 52844]]

program and how to apply. In the final rule, section 852.3 has been 
revised to include the Program Office's current phone number and 
mailing address for requesting an application, as well as the web site 
from which application forms can be printed.
    Section 852.3 also describes how an application is submitted. An 
application can be submitted in person to the Program Office, to any 
Resource Center, or to any DOE-sponsored Former Worker Program, where 
staff will be available to answer questions and assist the individual 
in filling out the application. An application can also be submitted by 
mail to the Program Office.
    Section 852.4 describes the information and materials that the 
individual must submit as a part of the application for Physician Panel 
review, additional discretionary information and materials that the 
applicant may choose to submit, and the essential information that must 
be included in records released by a third party or submitted by the 
applicant in support of an application.
    Section 852.4 specifies that the individual must complete and sign 
any application forms required by the Program Office. The application 
forms request basic information about the applicant and the worker upon 
whose illness or death the application is based.
    In order to assure that the Program Office has reasonable evidence 
to determine whether an individual meets the eligibility criteria for 
Physician Panel review, and that the Physician Panel has sufficient 
information to make a causation determination on an application, 
section 852.4 requires the applicant to provide:
    (a) the name and address of any licensed physician who is the 
source of a diagnosis based upon documented medical information that 
the employee has or had an illness and that the illness may have been 
related to exposure to a toxic substance while the employee was 
employed at a DOE facility and, to the extent practicable, a copy of 
the diagnosis and a summary of the information upon which the diagnosis 
is based; and
    (b) a signed medical release, authorizing non-DOE sources of 
medical information to provide the Program Office with any diagnosis, 
medical opinion and medical records documenting the diagnosis or 
opinion relevant to whether the employee has or had an illness and 
whether the illness arose from exposure to a toxic substance while the 
employee was employed at a DOE facility.
    The requirement that the applicant submit the information 
identified in section 852.4 is intended to satisfy the statutory 
provision that an applicant must supply the Program Office with 
reasonable evidence that the statutory threshold is met for referral to 
a Physician Panel. Among other things, and even though an applicant is 
not required to supply a physician's diagnosis as part of an 
application, applicants who wish to rely on such a diagnosis to support 
their applications should identify the diagnosing physician and submit 
a copy of the diagnosis. DOE encourages the submission of diagnoses 
where possible because they will enable the Program Office and 
Physician Panels to do their work more quickly, efficiently and 
reliably.
    Part D neither directs DOE to provide nor bars DOE from providing 
assistance to an applicant in obtaining a medical diagnosis or 
developing other medical evidence to support the applicant's 
application before a decision is made whether to refer it to a 
Physician Panel. However, and while Part D makes clear that the 
applicant bears primary responsibility for submitting sufficient 
information to support his/her application and meet the requirements of 
section 852.6 of the final rule, DOE will assist applicants as it is 
able. Specifically, DOE may be able to provide certain types of 
information as discussed below in connection with section 852.6.
    Section 852.4 of the final rule also permits the applicant to 
submit to the Program Office any other information or materials 
providing evidence that the employee has or had an illness that arose 
from exposure to a toxic substance during the course of employment at a 
DOE facility.
    The applicant must sign an affidavit attesting to the authenticity 
and completeness of any information or materials submitted to the 
Program Office, or provide the Program Office with other evidence of 
authenticity of submitted materials, such as certification of submitted 
copies of originals.
    To the extent practicable and appropriate, the records submitted by 
the worker or released by a third party must also include an 
occupational history obtained by a physician, an occupational health 
professional, or a DOE-sponsored Former Worker Program. DOE does not 
intend that a worker should incur financial or other hardship in having 
such a history taken, but instead requests that any such occupational 
history already in a worker's medical records be submitted to the 
Program Office by the applicant. If the worker's records do not already 
include such a history, then DOE requests that the worker have such a 
history obtained and have this history released to the Program Office, 
if the worker can readily have such a history obtained from a Former 
Worker Program or other source without incurring undue hardship. If 
such an occupational history is not reasonably available by these 
means, and is deemed by the Program Office to be needed for the fair 
adjudication of the claim, then the Program Office must assist the 
applicant in obtaining this history, if it can be obtained from the 
worker upon whom the application is based.
    In section 852.4(d) of the NOPR, there was a provision for 
submission of an ``employment history'' as a part of the application. 
In the final rule, the requirement for submission of an ``employment 
history'' appears in section 852.4(a)(4), and the term ``employment 
history'' is changed to ``occupational history'' because the latter is 
in more general usage in the occupational health field. The other 
changes in this section were made to assure that an adequate 
occupational history is available for Physician Panel review.
    Omitted from the final rule is section 852.4(c) of the NOPR which 
would have required an applicant to sign a release of information 
permitting the Program Office to obtain any records under the control 
of DOE and relevant to the application. Under the Privacy Act of 1974, 
as it pertains to DOE records system ``DOE-10 Worker Advocacy Records'' 
(66 FR 27307), such a release is not required for DOE to obtain records 
controlled by DOE for legitimate purposes related to this program.

M. What Information May an Employer Submit in Response to an 
Application Submitted to a Physician Panel?

    New section 852.5 requires the Program Office to notify an employer 
when the Program Office has determined that an application by or on 
behalf of a current or former employee of that DOE contractor meets the 
requirements of section 852.4. After receiving this notification, the 
employer has 15 working days to provide the Program Office with any 
information deemed by the employer to be relevant to the application. 
The employer must sign an affidavit attesting to the authenticity and 
completeness of any information or materials submitted to the Program 
Office for this purpose, or provide the Program Office with other 
evidence of authenticity of submitted materials, such as certification 
of submitted copies of originals. DOE will provide the Physician Panel 
with

[[Page 52845]]

materials submitted by an employer for use in making its determination.
    Two commenters expressed the opinion that the contractor has the 
right to be notified that a claim has been filed, and be given the 
opportunity to provide information relevant to the application, 
including information that might rebut the claim. Others noted that the 
employer may be the only source of certain relevant information, 
including information relating to the issue of causation, and noted 
that, under the proposed rule, the employer would not be able to 
present evidence to a Physician Panel or to present evidence to contest 
a determination by a Physician Panel in a State workers' compensation 
proceeding. Both commenters felt that the employer should be afforded 
the opportunity to provide the Program Office with evidence relevant to 
the application. DOE agrees with these commenters and has added this 
new section 852.5 to provide employers with notice and the opportunity 
to submit relevant information before the Program Office makes a 
determination whether to submit an application to a Physician Panel.

N. How Does the Program Office Decide Which Applications To Submit to a 
Physician Panel?

    As proposed in the NOPR, section 852.6 (proposed as section 852.5) 
would have required DOE to apply eligibility criteria contained in the 
relevant State workers' compensation statutes and used by the relevant 
State in determining the validity of a workers' compensation claim. The 
criteria would have been specified in the State Agreement with the 
State in which the claim would be filed, as specified in proposed 
section 852.6. In the NOPR, DOE solicited comments on whether these 
State criteria should be applied by the Program Office, or 
alternatively, by State officials on a reimbursable basis. DOE also 
requested comments as to whether the use of a screening mechanism is 
consistent with the statutory framework and whether the use of 
applicable State criteria or uniform Federal criteria better achieves 
the statutory objectives.
    Commenters generally opposed the application of State specific 
criteria during the screening of applications and urged that the 
Program Office submit to the Physician Panel those applications that 
meet the minimum statutory criteria identified in the Act. Commenters 
also expressed the concern that application of State specific criteria 
at this stage would erect barriers to claims that should be presented 
to the Physician Panel. Still other commenters urged the establishment 
of a uniform Federal standard for eligibility and causality.
    Some States commented that they would not be willing to screen 
applications on a reimbursable basis. Several States also questioned 
whether DOE would be able to screen applications on the basis of 
whether an application presented a compensable claim under a State 
workers compensation system.
    After considering the comments, DOE has decided that the 
eligibility criteria for referral of a claim to a Physician Panel 
should be based on the criteria specifically set forth in the Act, and 
should focus on whether the applicant provides reasonable evidence of 
an illness or death that may have been caused by exposure to a toxic 
substance during the course of employment at a DOE facility. Thus, 
section 852.6(a)(1) and section 852.6(a)(3) of the final rule track the 
language in Part D. Section 852.6(a)(2) further requires that an 
applicant submit reasonable evidence that the employee's illness or 
death ``may have been caused by exposure to a toxic substance.'' While 
this requirement does not appear in section 7385o(b)(2) of the statute, 
it reflects part of the determination that Part D requires a Physicians 
Panel to make if the panel is to render a determination in an 
applicant's favor. DOE believes that it is only logical for the 
applicant to be required to submit, and for the Program Office only to 
refer to Physician Panels applications in which the applicant has 
submitted, reasonable evidence in support of the determination the 
Physician Panel is being asked to make.
    Consistent with the general tenor of the comments, today's final 
regulations provide that applications which satisfy these minimum 
criteria should be submitted to a Physician Panel for review. It is the 
role of the Physician Panel to determine if the applicant can satisfy 
the medical criteria for causation specified in these final 
regulations. Non-medical criteria, such as statutes of limitations, 
should not be used by the Program Office to screen applications, or by 
the Physician Panels to make medical causation determinations.
    DOE is aware that by excluding non-medical criteria from the 
screening process, it may submit to a Physician Panel an application by 
an applicant whose State workers' compensation claim might be barred by 
non-medical criteria (such as the applicable statute of limitations). A 
Physician Panel could in turn make a causation determination in favor 
of an applicant, and the Program Office could accept such a 
determination even though there might be various medical or non-medical 
impediments to the applicant's State workers' compensation claim as 
will be discussed below. Part D is designed to remove obstacles to 
recovery of this type when it can do so through contract administration 
tools. These results do not impose a Federal standard on a State 
workers' compensation system. States will continue to have the ability 
to administer their workers' compensation systems in accordance with 
applicable State law. DOE's action merely would constitute a decision 
by DOE not to raise defenses to a workers' compensation claim by an 
applicant who has received a favorable Physician Panel determination.
    Section 852.6 identifies the criteria the Program Office uses to 
determine whether to submit an application to a Physician Panel. An 
application must contain reasonable evidence allowing the Program 
Office to make an initial determination that the following three 
conditions are met. First, the application was filed by or on behalf of 
a DOE contractor employee or the employee's estate or survivor. Second, 
the illness or death of the DOE contractor employee may have been 
caused by exposure to a toxic substance. Third, the illness or death 
may have been related to employment at a DOE facility. The Program 
Office must refer to a Physician Panel any application that provides 
reasonable evidence meeting each of these criteria. Applicants with a 
medical diagnosis to support their applications should submit that 
diagnosis and supporting medical documentation because such information 
likely will constitute the strongest evidence in support of an 
applicant's causation argument. Applicants who do not submit a 
diagnosis by a licensed physician will have a more difficult time 
meeting the section 852.6 standard. However, the regulations do not 
require that a medical diagnosis be submitted before an application 
meets the applicable standard, and as section 852.4 makes clear, 
applicants are free to submit whatever information they have that they 
believe supports their application.

O. What Provisions Does a State Agreement Contain?

    Proposed section 852.6 in the NOPR identified three elements to be 
included in a State Agreement: a provision that the State would 
identify the applicable criteria used to determine the validity of a 
workers' compensation claim under State workers' compensation law and 
describe how these criteria are applied in a State workers' 
compensation

[[Page 52846]]

proceeding; a provision that only those applications that could satisfy 
the identified applicable criteria would be submitted to a Physician 
Panel; and a provision that the Program Office would provide assistance 
only to those applicants that satisfy the applicable criteria.
    DOE intends the State Agreement to be the understanding between DOE 
and a State as to the terms and conditions for dealing with an 
application for DOE assistance in filing a workers' compensation claim. 
State Agreements are not intended to alter State criteria.
    As noted in the discussion of section 852.6, a number of commenters 
objected to the concept of the Program Office using State criteria to 
screen applicants for assistance prior to submission of an application 
to a Physician Panel. As a result, that section has been revised to 
eliminate consideration of State criteria at that point in the 
screening process. Similarly, several commenters objected to inclusion 
in the State Agreements of State criteria for determining causation and 
other medical eligibility issues. Some commenters stated that State 
Agreements should contain Federal standards to be applied in 
determining eligibility and causality. As will be discussed below, DOE 
believes that it is consistent with the statutory requirement and 
structure of the program under Part D for the Physician Panels to use a 
uniform federal standard for determining causation rather than the 
specific causation requirements of the workers' compensation system for 
the State in which an applicant will file his/her claim.
    DOE also solicited comments as to what other provisions should be 
included in State Agreements. Commenters argued that the State 
Agreements should include a provision for reimbursement or 
indemnification to contractors or insurance carriers for claims 
accepted under Part D. DOE has determined that such provisions should 
not be placed in the State Agreements. Rather, section 852.19 of the 
final rule provides for reimbursement of contractors for additional 
workers' compensation costs incurred as a result of workers' 
compensation awards on claims based on the same health condition that 
was the subject of a positive Physician Panel determination. However, 
the Act does not authorize DOE to reimburse or indemnify insurers; nor 
does it authorize the appropriation of funds to do so. Therefore, 
neither the final regulations nor the State Agreements provide for 
reimbursement or indemnification of insurers.
    Commenters also expressed concern for the precedential effect of a 
Physician Panel finding of medical causation. A positive finding by a 
Physician Panel is not binding on a State worker's compensation system 
or any person other than DOE and, if so directed by DOE, a DOE 
contractor. The effect of a positive Physician Panel determination is 
to obligate DOE to assist the applicant in the State worker's 
compensation proceeding. It does not prevent anyone other than DOE or a 
DOE contractor so directed by DOE from contesting causation or any 
other issue.
    One commenter observed that Part D of the Act is permissive, not 
required, and that the Secretary has the option to decide not to 
negotiate State Agreements with States. While the commenter is correct 
that the program under Part D is discretionary and dependent on the 
negotiation of State Agreements, DOE believes Congress did not enact 
Part D in the expectation that DOE would make it a dead letter by 
refraining from attempting to negotiate any State Agreements. DOE 
therefore has determined that it should seek to negotiate agreements 
with the States as anticipated by this Part. Of course, implementation 
of the program under this Part with respect to any particular State or 
state workers' compensation program will depend on the successful 
negotiation of a State Agreement between DOE and the relevant State.
    One commenter expressed concern that there are jurisdictions 
without a State agency to enter into such an agreement. DOE finds that 
all jurisdictions have a workers' compensation administrative agency 
with which DOE believes it can work.
    As revised, section 852.7 provides for four standard provisions in 
State Agreements. First, the State Agreement must include a provision 
that an application will be submitted to a Physician Panel only if it 
contains reasonable evidence, including appropriate medical 
documentation, that (1) the worker who is the subject of the 
application is or was a DOE contractor employee, (2) the worker has, 
had or died of an illness that may have been caused by exposure to a 
toxic substance, and (3) the exposure occurred during the course of 
employment at a DOE facility.
    Second, a State Agreement must include a provision that requires a 
Physician Panel to apply the standard of causation set forth in section 
852.8 of DOE's regulations when making determinations of medical 
causation.
    Third, a State Agreement must include a statement that the Program 
Office provides assistance only to an applicant who receives a positive 
determination from a Physician Panel.
    Fourth, a State Agreement must include a statement that a positive 
determination by a Physician Panel has no effect on the normal 
operation of a State workers' compensation system. However, as provided 
elsewhere in this rule, the determination will prevent DOE from 
contesting a State workers' compensation claim or award with regard to 
the health condition that was the subject of the Physician Panel 
determination. It also will result in DOE's direction to the relevant 
DOE contractor not to contest such claims or awards. State processes 
concerning issues such as benefit level determinations, disability 
determinations such as permanent partial disability (PPD), and 
apportionment, will proceed according to routine State workers' 
compensation system operation.

P. What Guidelines Does a Physician Panel Use To Determine Whether an 
Illness or Death Arose Out of and in the Course of Employment by a DOE 
Contractor and Exposure to a Toxic Substance at a DOE Facility?

    Section 852.8 provides that a Physician Panel determines whether an 
illness or death arose out of and in the course of employment by a DOE 
contractor and exposure to a toxic substance at a DOE facility based 
whether it is at least as likely as not that exposure to a toxic 
substance at a DOE facility during the course of the worker's 
employment by a DOE contractor was a significant factor in aggravating, 
contributing to or causing the worker's illness or death.
    In proposed section 852.7 of the NOPR, a common federal causation 
standard and burden of proof were specified, namely, that it is more 
likely than not that exposure to a toxic substance at a DOE facility 
during the course of employment by a DOE contractor caused the illness 
or death. DOE solicited and received a number of comments on the 
appropriate burden of proof and causation standard to be applied by the 
Physician Panels. Some commenters expressed support for an ``as likely 
as not,'' or a ``more likely than not'' standard. Other commenters 
supported a standard of ``any contributing factor'' or ``a substantial 
contributing factor.'' Still other commenters suggested a standard of 
``significant factor in aggravating, contributing to or causing 
illness, disability or death,'' and other commenters supported State-
specific causation standards.

[[Page 52847]]

    DOE has decided, for several reasons, that Physician Panels should 
not use standards of the individual States with regard to medical 
causality or burden of proof determinations, and that instead, the 
regulations should require Physician Panels to use the single uniform 
federal standard for burden of proof and medical causality set forth in 
section 852.8. First, while Part D certainly is susceptible of more 
than one interpretation on this point, DOE believes the best 
interpretation of the statutory text is that DOE should adopt a uniform 
federal standard. Nowhere does the statute indicate that Physician 
Panels should apply State standards for burden of proof or causation; 
indeed, 42 USC Sec. 7385o(d)(3) speaks in terms that seem to call for a 
single federal standard (i.e., the panels shall determine ``whether the 
illness or death that is the subject of the application arose out of 
and in the course of employment by the Department of Energy and 
exposure to a toxic substance at a Department of Energy facility'').
    Second, DOE believes it will better effectuate the purpose and 
policy of Part D for the Physician Panels to apply a uniform federal 
standard. In DOE's view, the primary purposes of Part D are for DOE to 
assist deserving applicants in applying for and obtaining State 
workers' compensation benefits, to ease the administrative burden on 
applicants when applying for State workers' compensation benefits, and 
to enable some applicants to gain benefits that they might not receive 
under normal operation of the State systems by requiring DOE and its 
contractors not to contest certain State workers' compensation claims, 
using contract administration tools to encourage outcomes of this type. 
These purposes can be better fulfilled through a uniform federal 
causation standard for the Physician Panels. If the Physician Panels 
were required to use State standards of causation and burden of proof, 
applicants potentially would be forced to endure the administrative 
burden at the Physician Panel stage that Part D in fact wishes to 
relieve applicants from bearing at the State worker compensation 
proceeding stage.
    Third, DOE believes that application of a single federal standard 
by the Physician Panels will make administration of the Part D program 
much more equitable and efficient. A requirement that Physician Panels 
(as well as the Program Office in reviewing Physician Panel 
determinations) use State-specific causation and burden of proof 
standards would require that the panels and Program Office become 
intimately familiar with the laws of numerous different States, and 
likely would lead to inconsistencies in how State law is interpreted 
and applied by the States, the Program Office and the Physician Panels. 
Such inconsistencies could, in turn, lead to inequitable results and 
wasteful controversy and litigation. A single federal standard will be 
easier for the Program Office and the Physician Panels to administer 
and will allow DOE to treat equally similarly situated applicants in 
different States.
    Fourth, DOE believes a uniform federal causation standard allows 
DOE to promote the purposes of Part D by setting the standard at a 
level that fairly interprets the statutory command while also 
attempting to assist the largest possible number of deserving 
applicants. The use of State-specific causation standards would prevent 
DOE from furthering the statutory purposes in this manner. Such a 
result would be particularly inequitable and would not be a sound 
policy choice or interpretation of Part D, simply because Part D quite 
clearly does not compel the Program Office or Physician Panels to use 
State-specific causation standards.
    As to the federal standard to be adopted and promulgated in section 
852.8, DOE has decided that a Physician Panel must render a causation 
determination in the applicant's favor if the panel determines that it 
is at least as likely as not that exposure to a toxic substance at a 
DOE facility during the course of employment by a DOE contractor was a 
significant factor in aggravating, contributing to or causing the 
illness or death of the worker at issue. DOE intends that, as used in 
this context, the word ``significant'' should have its normal 
dictionary definition and meaning--that is, ``meaningful'' and/or 
``important.''
    DOE believes that the standard set forth in section 852.8 fairly 
interprets the text of Part D. It also represents a policy decision by 
DOE to aggressively pursue the purposes of Part D by setting the 
causation standard at a level that is below the level of proof that 
applicants might be required to demonstrate to obtain workers' 
compensation benefits in some States.
    DOE has decided to adopt the ``significant factor'' causation 
standard rather than the ``more likely than not'' standard proposed in 
the NOPR because the ``more likely than not'' standard is too high and 
could result in deserving applicants being denied the assistance Part D 
was intended to afford. On the other hand, DOE rejects extremely 
lenient standards (such as ``any contributing factor'') because such 
standards do not constitute a fair interpretation of the statutory 
language (i.e., that the illness or death ``arose out of and in the 
course of'' employment at a DOE facility and exposure to a toxic 
substance).
    DOE recognizes that the causation standard in section 852.8, and 
the causation standard applied by DOL for certain benefits 
determinations under other compensation programs established by the 
Act, are different. DOE further recognizes that this difference in 
causation standards may contribute to some applicants who file 
applications in both the DOE and DOL programs receiving inconsistent 
causation determinations from the two agencies. However, DOE determined 
that nothing in the Act required that the same causation standard be 
used for both the program administered by DOL and the Part D program 
administered by DOE. Indeed, the Act itself sets forth different 
causation standards for the different programs.
    Furthermore, and as noted above, DOE intends to aggressively pursue 
the purposes of Part D. DOE believes as a policy matter that this 
objective can best be accomplished through DOE's adoption of the 
``significant factor'' causation standard set forth in section 852.8 
even thought it may differ from the standards that DOL is required by 
law to apply.
    In addition, regardless what standard DOE adopts, it is extremely 
unlikely that all applicants would receive identical causation 
determinations from both the DOL and DOE programs. The statutory 
language for the two agencies' programs is different, the two programs 
focus on entirely different benefit mechanisms (i.e., DOE's program 
under Part D focuses on assisting applicants obtain State workers' 
compensation benefits while the program administered by DOL focuses on 
direct federal payments to applicants), the programs are administered 
by two different federal agencies, and the Act requires that 
independent Physician Panels make the causation determinations for the 
applications submitted to DOE under the Part D program. DOE believes 
that rather than adopting a causation standard set forth in another 
part of the Act in a vain attempt to assure consistency in outcomes 
between the DOE and DOL programs, it should adopt the ``significant 
factor'' causation standard set forth in section 852.8. This standard 
is similar to the causation tests applied by many State workers' 
compensation programs and is appropriate for all the other reasons 
explained above. In short, DOE believes that the standard it has 
adopted is appropriate and properly carries out the intent of Part D, 
and that DOE should

[[Page 52848]]

not adopt a causation standard that attempts to mandate the same result 
for all applicants from both the DOE and DOL programs when perfect 
consistency in outcomes is extremely unlikely regardless of the 
causation standard DOE adopts.
    Section 852.8 further specifies that Physician Panels should use 
the ``at least as likely as not'' burden of proof when determining 
whether exposure to a toxic substance at a DOE facility during the 
course of employment by a DOE contractor was a significant factor in 
aggravating, contributing to or causing the illness or death of the 
worker at issue. The NOPR stated that a panel would make its 
determination based on ``whether there is sufficient information to 
support'' the applicant's requested finding; that language implied that 
panels should use a preponderance of the evidence burden of proof. The 
final rule adopted by DOE is more favorable to applicants in that it 
requires that they meet only an ``at least as likely as not'' burden of 
proof.
    The standard adopted today in section 852.8 is, DOE believes, very 
favorable to applicants while at the same time being consistent with 
the statutory language and good policy. DOE believes this standard will 
result in its being able to assist the largest number of deserving 
claimants consistent with the structure and statutory text of Part D.

Q. What Materials Must a Physician Panel Review Prior to Making a 
Determination?

    Section 852.9 (proposed as section 852.8) stipulates that the 
Physician Panel must review all records relating to the application 
that are provided by the Program Office. Such records may include 
medical records, employment records, exposure records, an occupational 
history, workers' compensation records, pertinent medical literature or 
reports, and any other records or evidence pertaining to the 
applicant's request for assistance, including additional discretionary 
information submitted by the applicant or the employer. For a deceased 
worker, such records may include a Medical Examiner's or Coroner's 
report or a death certificate. For an applicant who has also submitted 
a claim to DOL under the Act, such records may include any available 
information submitted as a part of such a claim or developed by DOL or 
HHS in the course of processing such a claim, including estimates of an 
applicant's cumulative radiation dose and the calculated probability 
that the employee's illness or death was caused by that radiation dose.
    Proposed section 852.8 had stated that each Physician Panel should 
review all such records prior to making a determination. A commenter 
expressed an opinion that a Physician Panel must be required to review 
all relevant information, both supportive and non-supportive, and 
render a determination based on all of the information. DOE agrees that 
a fair and accurate adjudication of a claim is predicated on a 
Physician Panel reviewing all available information presented to it, 
and has accordingly changed ``should'' to ``must'' in section 852.9.
    Several commenters asked questions or made suggestions as to what 
role DOE should have in assisting the applicant in gathering 
information in support of an application, including a suggestion that 
an independent medical examination might help expedite the Physician 
Panel review by focusing on information relevant to determining 
compensability under State law. Commenters expressed the opinion that 
DOE should pay for the development of medical evidence in support of an 
application, and suggested that DOE should use the Former Worker 
Medical Surveillance Program to accelerate and enhance implementation 
of Part D.
    Part D does not authorize DOE to create a new program of 
examination and testing for applicants, nor does it authorize 
appropriations for this purpose. DOE believes that the Program Office's 
role is to assist an applicant in obtaining and assembling existing 
information relevant to a claim, including employment, exposure and 
medical information under the control of DOE and its contractors, 
information provided by the applicant, and information from outside 
sources whose transmittal to DOE has been authorized by the applicant.
    However, where it is able, DOE will assist applicants by providing 
to them and to the Physician Panel relevant information in DOE's 
control. DOE's Former Worker Medical Surveillance Program currently 
consists of pilot projects run by consortia of universities, unions and 
occupational health experts funded through cooperative agreements with 
DOE for the purpose of providing former DOE contractor employees with 
medical surveillance examinations directed at detecting potential work-
related disorders. The Former Worker Medical Surveillance Program is 
distinct from the program authorized by Part D of the Act and 
administered by the Program Office. The Program Office intends to 
utilize information generated by the Former Worker Program projects in 
the following manner. First, the Program Office will utilize the 
projects' hazard surveys of DOE sites (know as ``Phase I/Needs 
Assessments'') as sources of occupational exposure information for use 
by the Physician Panels. Second, if an applicant has previously 
received a medical surveillance examination through a Former Worker 
Program project, the Program Office will ask the applicant to sign a 
release so that the Program Office can obtain the results of this 
examination.
    A commenter stated that in assisting the applicants seeking 
compensation from their State's workers compensation systems, DOE 
should make use of state-of-the-art analytical techniques to determine 
amounts of radionuclide body burdens that the applicants may have. As 
stated above, DOE is not funding further medical examinations of 
applicants under this program. However, HHS will be conducting 
radiation dose reconstructions for those applicants who have submitted 
a claim for cancer to DOL under Part A of EEOICPA and whose claim is 
not for compensation under provisions governing compensation for 
members of the Special Exposure Cohort. These dose reconstructions will 
evaluate and make use of existing information from DOE and other 
sources, including claimants, relevant to estimating the radiation 
doses incurred by cancer claimants in the performance of duty for DOE 
and it contractors. HHS will report the methods and results of these 
dose reconstructions to claimants, DOL and DOE. DOE intends to provide 
copies of these reports to the Physician Panels for radiation-related 
claims. In these cases, the applicant may also want to provide the 
Physician Panel with the probability of causation determination 
established by DOL based on the NIOSH dose reconstruction.

R. How May a Physician Panel Obtain Additional Information or a 
Consultation That It Needs To Make a Determination?

    A Physician Panel may, on occasion, need additional information or 
consultations to make its determination. For expediency, documentation 
of evidence, maintenance of confidentiality, and records control, 
section 852.10 (proposed as section 852.9) requires the Physician Panel 
to make all requests for additional information through the Program 
Office. The panel may request an interview with the applicant, if the 
panel believes that only the applicant can supply the necessary 
information. Based upon the experiences of similar physician panels, 
including the Expert Panel of the

[[Page 52849]]

Fernald II Workers' Settlement Fund,\1\ it is anticipated that such a 
request will be unusual, but may be necessary in rare cases in order to 
obtain essential information. The panel can also request that the 
applicant provide additional medical information. The Physician Panel 
may request consultation with specialists in fields relevant to its 
deliberations, if needed, as provided for in section 3661(d)(4) of the 
Act, or refer to relevant medical and scientific literature. The 
Program Office will maintain a roster of available specialists for this 
purpose.
---------------------------------------------------------------------------

    \1\ The Fernald II Workers' Settlement Fund was established to 
settle a class action lawsuit by the employees of National Lead of 
Ohio (NLO), which operated the Feed Materials Production Center 
(Fernald) DOE facility from 1951 to 1985. A component of this 
settlement fund is an Expert Panel Review to determine the work 
relatedness of an illness claimed by an NLO employee as resulting 
from exposure to radioactive material or other toxins. The Expert 
Panel consists of three Occupational/Environmental Health physicians 
who have the option of interviewing a claimant, but rarely need such 
an interview to make a determination, relying in most cases on 
existing written records.
---------------------------------------------------------------------------

    New section 852.10(c) was added in the final regulations in order 
to codify within the rule a requirement of section 3661(d)(4) of the 
Act. Section 3661(d)(4) requires that, at the request of a Physician 
Panel, DOE or a DOE contractor who employed the DOE contractor employee 
must provide additional information relevant to the panel's 
deliberations. Under new section 852.10(c), a Physician Panel may also 
request additional information under the control of DOE or its 
contractors. It is anticipated that these will be important sources of 
information in many cases.
    One commenter expressed an opinion that a duty to produce the 
historical exposure records should be placed on the contractor, instead 
of placing it wholly on the Program Office. DOE notes that section 
3661(d)(4) of the Act (42 U.S.C. 7385o(d)(4)) implicitly places this 
obligation on both DOE and on the DOE contractor. Section 852.10(c) 
permits a Physician Panel to request relevant information in control of 
DOE or its contractors. DOE intends that all relevant information 
should be provided to a Physician Panel whether in possession of DOE or 
its contractor, to the extent permitted by law.
    A commenter stated that requiring applicants to interview before a 
Physician Panel may result in a financial burden and physical hardship 
on applicants and stated that alternative methods of obtaining 
information should be explored. This commenter asked who will pay for 
any travel associated with an applicant's interview, if a panel 
requests such an interview. This commenter also asked whether a 
specialist will be paid, when consultation with a specialist is 
required, and what the rate of pay for specialists will be.
    DOE recognizes the hardships for the applicant associated with an 
interview, and anticipates that such an interview will only be required 
in those unusual instances when essential information is not available 
from any other source. When an interview with the applicant is 
required, the Program Office will strive to arrange such an interview 
at a time and place convenient to the applicant and consider 
alternatives (e.g., telephone interviews) to face to face meetings. As 
discussed previously, the applicant is responsible for developing the 
medical information upon which the applicant bases its claim, and 
therefore DOE is not responsible for paying for the development of new 
medical information. However, to the extent the Physician Panel 
requests a consultation with a specialist to discuss medical 
information already in its possession, DOE will pay the costs 
associated with this consultation.

S. How Is a Physician Panel To Carry Out Its Deliberations and Arrive 
at a Determination?

    After each member of a Physician Panel reviews the information 
submitted to the panel, the panel members will discuss an application 
and arrive at a determination. Because it is anticipated that Physician 
Panels will be spread out geographically, section 852.11 (proposed as 
section 852.10) permits teleconferencing. This system has worked well 
for prior Physician Panels, such as the Expert Panel of the Fernald II 
Workers' Settlement Fund.\2\
---------------------------------------------------------------------------

    \2\ Ibid.
---------------------------------------------------------------------------

    In the NOPR, DOE proposed that the panel members be required to 
reach a ``common'' determination. The NOPR did not explain what might 
happen if such a common or unanimous determination could not be 
reached. Some commenters objected to the requirement for panel 
unanimity, apparently on the ground that this could result in a single 
panel member defeating the will of the majority to make a causation 
determination in an applicant's favor.
    DOE has decided that a panel determination should require only a 
majority of the panel members approving that determination, and thus 
DOE had modified the text of section 852.11 accordingly. This approach 
will promote the purposes of the statute by enabling more deserving 
employees to receive favorable panel determinations. This approach also 
will promote efficient administration of the program by eliminating the 
problems that otherwise might arise with respect to a non-unanimous 
panel. Furthermore, allowing panel determinations to be based on a 
majority rather than a unanimous decision by the panel members better 
accommodates the inherent uncertainty of some medical and medical 
causation decisions, and ensures that applicants will receive a fair 
determination even in situations where, for whatever reason, the 
determination is not unanimous.

T. How Must a Physician Panel Issue Its Determination?

    In order to ensure that a Physician Panel has made its 
determination based upon the relevant evidence and that it has provided 
the basis for its determination, section 852.12 (proposed as section 
852.11) requires the Physician Panel to identify the materials it has 
reviewed in making its determination, and express the determination and 
its basis in a series of findings that logically links the evidence 
reviewed to the conclusions drawn.
    DOE anticipates that some covered workers who have applied for 
benefits under the DOL program will also apply for assistance from the 
Program Office in filing a claim with a State workers' compensation 
system. However, filing a claim under the DOL program is not a 
requirement for the DOE program. In addition, and as explained above, 
some applicants who submit applications in both the DOE and DOL 
programs may receive different causation determinations from the two 
agencies. For example, under the DOL program, a member of a Special 
Exposure Cohort, as defined in section 3621(14) of the Act (42 U.S.C. 
7384l(14)), who has a specified cancer could establish entitlement to 
benefits for a specified cancer without showing that the disease is the 
result of exposure to a toxic substance because the statute dispenses 
with that requirement for Special Exposure Cohort members in the DOL 
program. A Physician Panel, however, can make a positive determination 
only if sufficient evidence is provided to meet the standard as 
specified in section 852.8. As to non-Special Cohort members in the DOL 
program, factual findings made by DOL, including findings based on dose 
reconstructions performed by HHS regarding the likelihood that cancer 
was caused by occupational exposure to radiation, while relevant to a 
panel's assessment, are not binding on a Physician Panel. A

[[Page 52850]]

Physician Panel would be expected to explain the extent to which it 
based its determination on the findings of any agency in its report to 
the Program Office.
    Proposed section 852.11(c)(4) in the NOPR required a Physician 
Panel, if explicitly requested by the Program Office, to provide the 
Program Office with a finding as to whether a specific criterion in a 
State Agreement has been satisfied. Three commenters asserted that 
Physician Panels should not be called upon to interpret State law. 
Another stated that State workers' compensation systems recognize and 
accept physicians' findings as to causality, and do not rely on 
physicians to make findings as to compensability.
    DOE agrees that the role of the Physician Panel is to make a 
determination as to the relationship between a claimed illness and 
exposures to a toxic substance at a DOE facility. Accordingly, the 
Physician Panel will not be required to provide a specific 
interpretation of a non-medical provision of a State workers' 
compensation system. However, if a State Agreement provides for a 
Physician Panel to make a determination concerning a medical issue in 
addition to causation and specifies the medical criteria to be applied, 
then panels will make such determinations in appropriate cases. For 
example, a State Agreement could set forth the State criteria for 
determining the extent of disability or impairment and provide for the 
Physician Panels to make determinations on these medical issues. 
However, the panel determinations with respect to such issues will not 
affect whether a ``positive'' or ``favorable'' determination is 
rendered for an applicant with all its attendant consequences under 
this program. Whether a positive or favorable determination is rendered 
is to be based solely on the standard and criteria set forth in section 
852.8.

U. When Must a Physician Panel Issue Its Determination?

    Section 852.13 (proposed as section 852.12) requires a Physician 
Panel to submit its determination to the Program Office within 30 
working days of receiving the application materials, unless granted an 
extension by the Program Office, which then sets the new deadline. New 
section 852.13(b) further stipulates that, when a Physician Panel 
requests additional information or a consultation necessary to the 
panel's deliberations, the deadline for panel determination is extended 
to 15 working days after receipt of the requested information or the 
consultant's recommendations.
    A commenter stated that the rule should define the ``applicant's 
material'' and describe the Physician Panel's obligation if the 
``applicant's material'' is deemed incomplete or otherwise inadequate 
for consideration.
    Because section 852.4 allows some discretion on the part of the 
applicant and the employer as to what materials are submitted, and 
because there will be a wide variation in the type and amount of 
information available from other sources, it is not possible to define 
precisely what the application materials will consist of, beyond the 
materials that the applicant is required to submit, as outlined in 
section 852.4. In those instances where the Physician Panel deems the 
application materials to be insufficient, the Physician Panel's 
obligations are defined in section 852.10, which requires the Physician 
Panel to request any additional information needed. New section 852.13 
further requires a Physician Panel to issue a determination in a timely 
fashion after receiving additional requested information or a 
consultation with a specialist.

V. What Precautions Must Each Physician Panel Member and Each 
Specialist Take in Order To Keep an Applicant's Personal and Medical 
Information Confidential?

    Because records for review by the Physician Panels and by medical 
specialists consulted at the request of these panels contain 
confidential, personal, and medical information, section 852.14 
(proposed as section 852.13) is included to provide safeguards that 
Physician Panels and specialists must follow to preserve the 
confidentiality of this information. Physician Panel members and 
specialists are required to comply with all provisions of the Privacy 
Act of 1974 applicable to worker advocacy records, including 
maintaining paper records in locked cabinets and desks. Release of 
information to a third party is also barred, unless such release is 
authorized by the applicant.

W. What Actions Must a Physician Panel Member Take if a Member of the 
Panel Has a Potential Conflict of Interest in Relation to a Specific 
Application Submitted to the Panel?

    In order to ensure objectivity and fairness, section 852.15 
(proposed as section 852.14) requires each panel member to report to 
the Program Office any real or perceived conflict of interest with 
regard to a particular application to the Program Office, and to cease 
reviewing the application pending instruction by the Program Office. 
The Program Office will then take appropriate actions to remedy the 
situation, which generally will mean referring the application to a 
different Physician Panel. At least two Physician Panels will be 
designated to review applications submitted by employees of each DOE 
facility.
    A commenter suggested that the proposed section 852.14 did not go 
far enough in addressing potential conflicts of interest, and called 
for public disclosure of potential conflicts of interest. It is DOE's 
position that, in addition to the reporting requirements of section 
852.15, adequate safeguards have been taken to avoid potential 
conflicts of interest because, among other things, the selection of 
Physician Panel members will be performed by HHS independently of DOE.

X. When May the Program Office Ask a Physician Panel To Reexamine an 
Application That Has Undergone Prior Physician Panel Review?

    Section 852.16 (proposed as section 852.15) provides that the 
Program Office may refer a case for reexamination to the same panel or 
to a different panel, after the original panel has made a determination 
if: there is significant evidence contrary to the panel determination; 
the Program Office obtains new information the consideration of which 
would be reasonably likely to result in a different determination; the 
Program Office becomes aware of a real or potential conflict of 
interest on the part of a member of the original panel in relation to 
the application under review; or reexamination is necessary to ensure 
consistency among panels.
    Several commenters felt that the Program Office's review powers 
were too broad in the NOPR. DOE agrees that a Physician Panel 
determination should be accorded deference and DOE generally 
anticipates accepting a Physician Panel determination in favor of an 
applicant. The statute does, however, specifically contemplate review 
and discretion by the Program Office in determining whether to accept 
such a determination, in that the statute specifies that the Program 
Office shall accept such a finding unless there is ``significant 
evidence to the contrary.'' In the final rule, the discretion of the 
Program Office to ask a Physician Panel to reexamine an application has 
been delineated to balance these competing considerations.

[[Page 52851]]

Y. Must the Program Office Accept the Determination of a Physician 
Panel?

    Unless a reexamination is requested pursuant to section 852.16, 
section 852.17 (proposed as section 852.16) requires the Program Office 
to accept a Physician Panel's determination, except where the Program 
Office determines there is significant evidence contrary to the panel 
determination. The Program Office must notify the applicant and the 
employer, in a timely fashion, of its acceptance or rejection of a 
Physician Panel determination.
    Proposed section 852.16 required only the prompt notification of 
the applicant of a determination. In the final rule, notification is 
extended to the relevant DOE contractor employers because of the 
potential impact of the Program Office's determination on those 
parties.

Z. Is There an Appeals Process?

    Section 852.18 (proposed as section 852.17) provides that an 
applicant may request DOE's Office of Hearings and Appeals (OHA) to 
review certain Program Office decisions. An applicant may appeal a 
decision by the Program Office not to submit an application to a 
Physician Panel, a negative determination by a Physician Panel that is 
accepted by the Program Office, and a final decision by the Program 
Office not to accept a Physician Panel determination in favor of an 
applicant. An applicant may not, however, appeal to OHA a Program 
Office decision to submit an application for reexamination pursuant to 
section 852.16.
    An applicant must file a notice of appeal with OHA on or before 30 
days from the date of a letter from the Program Office notifying the 
applicant of a decision appealable under this section. OHA will 
consider appeals in accordance with its procedures set forth in 10 CFR 
Part 1003. A decision by OHA constitutes DOE's final determination with 
respect to an application.
    A commenter agreed that an applicant should have a right to appeal 
a determination not to submit the application to the Physician Panel, 
but expressed concern about the independence of OHA. OHA is an office 
within DOE. However, apart from being within the same agency, it is 
administratively and functionally independent of the Program Office. 
Although a decision by OHA constitutes DOE's final determination with 
respect to an application, it is not the final remedy for an applicant. 
Regardless of DOE's final determination on a claim, an applicant may 
still file a claim with the applicable State workers' compensation 
program.

AA. What Is the Effect of the Acceptance by the Program Office of a 
Determination by a Physician Panel in Favor of an Applicant?

    Section 852.19 (proposed as section 852.18) sets forth the effect 
of acceptance by the Program Office of a determination by a Physician 
Panel in an applicant's favor. In the event the Program Office accepts 
such a determination by a Physician Panel, the Program Office must 
assist the applicant in filing a claim with the relevant State's 
workers' compensation system and cannot contest the claim or any award 
made regarding the health condition that was the subject of the 
Physician Panel determination in the applicant's favor.
    There were many comments regarding proposed section 852.18. 
Commenters expressed concerns about what actions DOE will take in order 
to ensure that claims based upon positive Physician Panel determination 
will not be contested by its contractors. Section 852.19 requires the 
Program Office to advise the cognizant Secretarial Officer to recommend 
to the relevant Contracting Officer that, to the extent permitted by 
law, the DOE contractor be directed not to contest the claim or award. 
Furthermore, any cost of contesting the claim or award is not an 
allowable cost under a DOE contract.
    All workers' compensation costs incurred as a result of an award on 
a claim based on the health condition that was the subject of a 
Physician Panel determination in favor of an applicant are allowable, 
reimbursable contract costs to the fullest extent permitted under a 
contract. This final provision of section 852.19 was added in final 
rulemaking in order to ensure that a DOE contractor who incurs 
additional workers' compensation award costs as a result of the rule is 
able to recover such costs from DOE.
    Part D only provides that DOE may direct its contractors not to 
contest a determination by a Physician Panel. It neither affects nor 
authorizes DOE to give directives to persons who are not DOE 
contractors. Thus, it will not affect persons who have no privity of 
contract with DOE, such as insurers. Likewise, it will not affect 
persons who lease DOE facilities for commercial purposes. While leases 
may be considered contracts, they typically have no provisions that 
would permit DOE to direct a lessee not to contest a workers' 
compensation claim or that would require DOE to reimburse the lessee 
for a workers' compensation claim. In addition, DOE may direct its 
contractors not to contest a determination by a Physician Panel only to 
the extent permitted by law. Thus, DOE cannot direct a contractor to 
take action that would violate the contractor's obligations under a 
State workers' compensation system or other legal obligations such as a 
contractual obligation to an insurer.
    Part D further provides that, in the case of a Physician Panel 
determination in an applicant's favor that has been accepted by the 
Program Office, DOE must assist an applicant in filing a claim under 
the appropriate State workers' compensation system. DOE notes that 
there is nothing in Part D of the Act requiring an applicant to file a 
claim after the Program Office accepts a positive Physician Panel 
determination. The applicant is responsible for evaluating the merits 
of filing a claim. If an applicant elects to seek relief under a State 
workers' compensation Program, Part D places an obligation upon DOE to 
assist the applicant in filing a claim. This assistance will include 
the provision of the determination and other information developed by a 
Physician Panel. It will not include representation or other such 
assistance after the filing of a claim with a State workers' 
compensation system.
    A commenter stated that even when causation has been established, 
there is still a disability determination that needs to be made under 
the State workers' compensation system. DOE believes that all such 
determinations should be made in the normal course of the operation of 
State workers' compensation statutes and administrative procedures. A 
commenter was concerned that costs associated with a disability 
determination would not be allowable. DOE has concluded that the 
disallowance of costs associated with contesting a claim that has been 
the subject of a Physician Panel determination in an applicant's favor 
pertains to all costs of supporting arguments or activities with the 
intent or effect of delaying or defeating a claimant's ability to 
recover State workers' compensation benefits for the health condition 
for which the applicant has received a final favorable Physician Panel 
determination. This obviously applies not only to ``contesting'' claims 
before the relevant State workers'' compensation authority, but also to 
``contesting'' such claims on appeal or in any other administrative or 
judicial forum. Subsequent employer costs are allowable to the extent 
that, and if consistent with the contractor's contract with DOE, under 
the applicable State workers' compensation statutes, it is customary 
for the employer to take an

[[Page 52852]]

active role in settling issues related to the claim, such as the extent 
of injury, allocation of liability among multiple employers, or 
calculation of actual benefits, but only to the extent such activities 
do not have the intent or effect of delaying or defeating a claimant's 
ability to recover workers' compensation benefits. If a State Agreement 
provides for a Physician Panel to determine a State-specific medical 
issue such as the degree of disability or impairment, DOE may direct a 
contractor not to contest that determination in a State proceeding and 
may not reimburse costs incurred in contesting such a determination.
    A commenter noted that this program will result in increased 
workers' compensation premiums to its contractors, and that additional 
workers' compensation claims will affect a contractor's State 
experience rating as a result of its workers' compensation experience. 
To the extent premium increases do occur or experience ratings are 
adversely affected, those effects are the necessary results of the 
Program established by Congress under Part D.

BB. General Comments on the NOPR

    A number of workers, former workers, their survivors and 
representatives had general comments on the NOPR without specific 
reference to a particular section. A number of commenters stated that 
the affected workers had endured exposure to many hazards, and deserved 
a program of real assistance. Two commenters noted the patriotism of 
these workers. A number of commenters felt that the rule, as proposed, 
was not assisting sick workers, as intended by the Act.
    In this notice of final rulemaking, DOE has carefully considered 
the major issues emerging from the comments on the NOPR, and believes 
that the final rule has addressed those issues. DOE believes that the 
final rule goes as far as the Act authorizes DOE to go in providing 
assistance.
    A commenter expressed concern about the status of applications for 
Physician Panel review already received under this Act. The commenter 
wanted to know if these filings are null and void, pending negotiation 
of the State Agreements. DOE will retain and act on these filings when 
the administrative machinery is in place to process them. Under the 
Act, the promulgation of this rule is the necessary first step in that 
endeavor. The establishment of State Agreements can now begin. That in 
turn will allow DOE to begin processing these claims.
    A commenter asked for clarification on how DOE will respond to 
cases where State has already considered and denied a workers' 
compensation claim for the same or related health condition that will 
be the basis for the applicants claim under the Part D program. The 
Program Office will process these claims in the same manner as other 
claims. It must be noted, however, that the Act does not change the 
normal operation of any State workers' compensation system, and does 
not create any new grounds for re-opening any decision already rendered 
under State law.

III. Regulatory Review and Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined to be ``a significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
was subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be for public comment, unless the agency certifies 
that the rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities. The rule would 
provide guidelines for the operation and determinations of Physician 
Panels established to provide expert opinion to DOE on the cause of a 
worker's illness or death. It would not impose costs or burdens on any 
small business or other small entity. DOE, therefore, certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities.

C. Review Under the Paperwork Reduction Act

    The rule provides that an individual may submit an application for 
review and assistance to the Program Office that contains information 
relating to the individual's employment by a DOE contractor, the nature 
of the illness or death, and the relationship between the illness or 
death and the individual's employment at a DOE facility. The 
application is required for DOE to determine whether reasonable 
evidence exists for submitting the individual's application to a 
Physician Panel.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection has 
been reviewed and assigned a control number by OMB. DOE submitted the 
proposed collection of information in the rule to OMB, simultaneously 
with the publication of the NOPR for review and approval under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has approved the 
collection of information in the rule and assigned it control number 
1910.

D. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of the rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, the rule deals only with 
Physician Panel procedures, and, therefore, is covered under the 
Categorical Exclusion for rulemakings that are strictly procedural in 
paragraph A6 of Appendix A to subpart D, 10 CFR part 1021. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on Agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to develop an 
accountable process to ensure meaningful and timely input by State and 
local officials in the development of regulatory policies that have 
``federalism implications.'' Policies that have federalism implications 
are defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' On March 
14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735). DOE has examined today's 
rule and has determined that it does not have a substantial direct 
effect on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. The scope of 
the rule is limited to defining how a Physician Panel established under 
the Act will determine whether the illness

[[Page 52853]]

or death that is the subject of an application for assistance in filing 
a claim under a State's workers' compensation system arose out of and 
in the course of employment by DOE and exposure to a toxic substance at 
a DOE facility. Referral of an application to a Physician Panel can 
occur only by agreement with the applicable State. The rule would leave 
to the State the determination of benefits. Thus, the rule would not 
preempt State workers' compensation law. No further action is required 
by Executive Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Federal Agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear, legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear, legal 
standard for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the rule meets the relevant standards of Executive 
Order 12988.

G. Review Under the Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal Agency to prepare a written assessment of the 
effects of any Federal mandate in a proposed or final rule that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million in any single 
year. The Act also requires a Federal Agency to develop an effective 
process to permit timely input by elected officers of State, local, and 
tribal governments on a proposed ``significant intergovernmental 
mandate,'' and it requires an Agency to develop a plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirement that might 
significantly or uniquely affect small governments. The rule published 
today does not contain any Federal mandate, so these requirements do 
not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal Agencies to issue a Family 
Policymaking Assessment for any proposed rule or policy that may affect 
family well-being. The rulemaking would not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has not prepared a Family Policymaking Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
the promulgation of a final rule, and that: (1) Is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and (2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA, as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits energy supply, distribution, and use.
    Today's rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

J. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding issuance of today's final rule prior to the effective date 
set forth at the outset of this notice. The report will state that it 
has been determined that the rule is not a ``major rule'' as defined by 
5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 852

    Administrative practice and procedure, Government contracts, 
Hazardous substances, Workers' compensation.

    Issued in Washington, DC, on August 7, 2002.
Beverly A. Cook,
Assistant Secretary for Environment, Safety and Health.

    For the reasons stated in the preamble, DOE hereby amends Chapter 
III of title 10 of the Code of Federal Regulations by adding part 852 
to read as follows:

PART 852--GUIDELINES FOR PHYSICIAN PANEL DETERMINATIONS ON WORKER 
REQUESTS FOR ASSISTANCE IN FILING FOR STATE WORKERS' COMPENSATION 
BENEFITS

Sec.
852.1   What is the purpose and scope of this part?
852.2   What are the definitions of terms used in this part?
852.3   How does an individual obtain and submit an application for 
review and assistance?
852.4   What information and materials does an individual submit as 
a part of the application for review and assistance?
852.5   What information and materials may an employer submit in 
response to a submission of an application to a Physician Panel?
852.6   Which applications are submitted to a Physician Panel?
852.7   What provisions are set forth in State Agreements?
852.8   How does a Physician Panel determine whether an illness or 
death arose out of and in the course of employment by a DOE 
contractor and exposure to a toxic substance at a DOE facility?
852.9   What materials must a Physician Panel review prior to making 
a determination?
852.10   How may a Physician Panel obtain additional information or 
a consultation that it needs to make a determination?
852.11   How is a Physician Panel to carry out its deliberations and 
arrive at a determination?
852.12   How must a Physician Panel issue its determination?
852.13   When must a Physician Panel issue its determination?
852.14   What precautions must each Physician Panel member and each 
specialist take in order to keep an applicant's personal and medical 
information confidential?
852.15   What actions must a Physician Panel member take if that 
member has a

[[Page 52854]]

potential conflict of interest in relation to a specific 
application?
852.16   When may the Program Office ask a Physician Panel to 
reexamine an application that has undergone prior Physician Panel 
review?
852.17   Must the Program Office accept the determination of a 
Physician Panel?
852.18   Is there an appeals process?
852.19   What is the effect of the acceptance by the Program Office 
of a determination by a Physician Panel in favor of an applicant?

    Authority: 42 U.S.C. 7384, et seq.; 42 U.S.C. 2201 and 7101, et 
seq.; 50 U.S.C. 2401 et seq.


Sec. 852.1  What is the purpose and scope of this part?

    (a) This part implements Part D of the Act by establishing the 
procedures under which:
    (1) An individual may obtain and submit an application to the 
Program Office for review and assistance;
    (2) The Program Office processes and submits eligible applications 
to a Physician Panel;
    (3) Physician Panels determine whether the illness or death of a 
DOE contractor employee arose out of and in the course of employment by 
a DOE contractor and through exposure to a toxic substance at a DOE 
facility;
    (4) The Program Office processes a determination by a Physician 
Panel; and,
    (5) Appeals may be undertaken.
    (b) This part covers applications filed by or on behalf of a DOE 
contractor employee, or a deceased employee's estate or survivor, with 
respect to an illness or death of a DOE contractor employee that may 
have been caused by exposure to a toxic substance during the course of 
employment at a DOE facility.
    (c) All actions under this part must be pursuant to the relevant 
State Agreement and consistent with its terms and conditions.


Sec. 852.2  What are the definitions of terms used in this part?

    Act means the Energy Employees Occupational Illness Compensation 
Program Act of 2000, 42 U.S.C. 7384 et seq.
    Applicant means an individual seeking assistance from the Program 
Office in filing a claim with the relevant State workers' compensation 
system, including but not limited to, a living DOE contractor employee, 
the estate of a deceased DOE contractor employee, or any survivor of a 
deceased DOE contractor employee who is eligible to apply for a death 
benefit or a survivor's benefit under the State workers' compensation 
system for which the applicant is seeking assistance in filing a claim.
    DOE means the U.S. Department of Energy, and its predecessor 
agencies, including the Manhattan Engineering District, the Atomic 
Energy Commission, and the Energy Research and Development 
Administration.
    DOE contractor employee means any of the following:
    (a) An individual who is or was in residence at a DOE facility as a 
researcher for one or more periods aggregating at least 24 months.
    (b) An individual who is or was employed at a DOE facility by
    (i) An entity that contracted with DOE to provide management and 
operation, management and integration, or environmental remediation at 
the facility; or
    (ii) A contractor or subcontractor that provided services, 
including construction and maintenance, at the facility.
    DOE facility means any building, structure or premise, including 
the grounds upon which such building, structure, or premise is located:
    (a) In which operations are, or have been, conducted by, or on 
behalf of DOE (except for buildings, structures, premises, grounds, or 
operations covered by Executive Order No. 12344, dated February 1, 1982 
(42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion 
Program); and
    (b) With regard to which DOE has or had
    (i) A proprietary interest; or
    (ii) Entered into a contract with an entity to provide management 
and operation, management and integration, environmental remediation 
services, construction, or maintenance services.
    Physician panel means a group of three physicians appointed by the 
Secretary of Health and Human Services, pursuant to Part D of the Act, 
to evaluate potential claims of DOE contractor employees under the 
appropriate State workers' compensation system.
    Program office means the Office of Worker Advocacy within DOE's 
Office of Environment, Safety and Health, or any other DOE office 
subsequently assigned to perform the functions of the Secretary of 
Energy under Part D of the Act.
    State agreement means an agreement negotiated between DOE and a 
State that sets forth the terms and conditions for dealing with an 
application for assistance under Part D of the Act in filing a claim 
with the State's workers' compensation system.
    Toxic substance means any material that has the potential to cause 
illness or death because of its radioactive, chemical, or biological 
nature.


Sec. 852.3  How does an individual obtain and submit an application for 
review and assistance?

    (a) An individual obtains an application for review and assistance:
    (1) In person from the Program Office, from any of the Resources 
Centers listed in Appendix A to this section, or from any DOE-sponsored 
Former Worker Program project;
    (2) Through a written request mailed to Assistant Secretary, Office 
of Environment, Safety and Health, Office of Worker Advocacy, U.S. 
Department of Energy, 1000 Independence Ave., SW., Washington, DC 
20585. or to any other address that DOE may subsequently publish by 
notice in the Federal Register;
    (3) Through telephone request to 
1-877-447-9756 or to any other telephone number that DOE may 
subsequently publish by notice in the Federal Register; or
    (4) In printable format, from the Program Office's Web site at 
http://tis.eh.doe.gov/advocacy/ or from any other Web site that DOE may 
subsequently publish by notice in the Federal Register.
    (b) An individual submits an application for review and 
assistance--
    (1) In person to the Program Office, to any Resource Center, or to 
any DOE-sponsored Former Worker Program project.
    (2) By mail to the Program Office at the address identified in 
paragraph (a)(2) of this section, or to any other address that DOE may 
subsequently publish by notice in the Federal Register.


Sec. 852.4  What information and materials does an individual submit as 
a part of the application for review and assistance?

    (a) As a part of the application for review and assistance, an 
individual must submit, in writing:
    (1) Any application forms required by the Program Office.
    (2) The name and address of any licensed physician who is the 
source of a diagnosis based upon documented medical information that 
the employee has or had an illness and that the illness may have 
resulted from exposure to a toxic substance while the employee was 
employed at a DOE facility and, to the extent practicable, a copy of 
the diagnosis and a summary of the information upon which the diagnosis 
is based.
    (3) A signed medical release, authorizing non-DOE sources of 
medical information to provide the Program Office with any diagnosis, 
medical opinion and medical records documenting the diagnosis or 
opinion

[[Page 52855]]

that the employee has or had an illness and that the illness may have 
resulted from exposure to a toxic substance while the employee was 
employed at a DOE facility.
    (4) To the extent practicable and appropriate, an occupational 
history obtained by a physician, an occupational health professional, 
or a DOE-sponsored Former Worker Program. (If such an occupational 
history is not reasonably available and is deemed by the Program Office 
to be needed for the fair adjudication of the claim, then the Program 
Office will assist the applicant in obtaining this history.)
    (5) Any other information or materials deemed by the Program Office 
to be necessary to provide reasonable evidence that the employee has or 
had an illness that may have arisen from exposure to a toxic substance 
while employed at a DOE facility.
    (b) The applicant may also submit directly to the Program Office 
any other information or materials providing evidence that the employee 
has or had an illness that may have resulted from exposure to a toxic 
substance during the course of employment at a DOE facility.
    (c) The applicant must sign an affidavit attesting to the 
authenticity and completeness of any information or materials submitted 
to the Program Office, or provide the Program Office with other 
evidence of authenticity of submitted materials, such as certification 
of submitted copies of originals.


Sec. 852.5  What information and materials may an employer submit in 
response to a submission of an application to a Physician Panel?

    (a) Upon receipt of an application and the Program Office's 
determination that the application meets the requirements of 
Sec. 852.4, the Program Office must notify each of the applicant's 
relevant DOE contractor employers in writing of:
    (1) The existence of the application;
    (2) The name of the employee;
    (3) The diagnosis claimed; and
    (4) The likely date of onset or date of diagnosis, if known.
    (b) The employer has 15 working days from receipt of this 
notification to submit to the Program Office any information deemed by 
the employer to be relevant to either the Program Office's 
determination of whether to refer an application to a Physician Panel, 
or to adjudication of the application by a Physician Panel.
    (c) The employer must sign an affidavit attesting to the 
authenticity and completeness of any information provided to the 
Program Office under this section, or provide the Program Office with 
other evidence of authenticity of submitted materials, such as 
certification of submitted copies of originals.


Sec. 852.6  Which applications are submitted to a Physician Panel?

    (a) The Program Office must submit an application and any 
information submitted under Sec. 852.5 of this part to a Physician 
Panel if there is reasonable evidence to make an initial determination 
that:
    (1) The application was filed by or on behalf of a DOE contractor 
employee or a deceased DOE contractor employee's estate or survivor;
    (2) The illness or death of the DOE contractor employee may have 
been caused by exposure to a toxic substance; and,
    (3) The illness or death of the DOE contractor employee may have 
been related to employment at a DOE facility.
    (b) The Program Office must promptly notify the applicant in 
writing of an initial determination under this section.


Sec. 852.7  What provisions are set forth in State Agreements?

    DOE may not execute a State Agreement that does not contain the 
following provisions:
    (a) A statement that an application is submitted to a Physician 
Panel only if the application satisfies the criteria in Sec. 852.6 of 
this part:
    (1) The application was filed by or on behalf of a DOE contractor 
employee or a deceased DOE contractor employee's estate or survivor;
    (2) The illness or death of the DOE contractor employee may have 
been caused by exposure to a toxic substance; and
    (3) The illness or death of the DOE contractor employee may have 
been related to employment at a DOE facility.
    (b) An agreement that a Physician Panel must apply the standards 
set forth in Sec. 852.8 of this part when making a determination that 
an illness or death arose from exposure to a toxic substance during the 
course of employment at a DOE facility;
    (c) An agreement that the Program Office must provide assistance to 
only those applicants with a positive determination from the Physician 
Panel; and
    (d) An agreement that a positive determination by the Physician 
Panel has no effect on the scope of State workers' compensation 
proceedings, the conditions for compensation, or the rights and 
obligations of the participants in the proceeding; provided that 
consistent with Part D of the Act such a determination will prevent DOE 
and may prevent a DOE contractor from contesting an applicant's 
workers' compensation claim.


Sec. 852.8  How does a Physician Panel determine whether an illness or 
death arose out of and in the course of employment by a DOE contractor 
and exposure to a toxic substance at a DOE facility?

    A Physician Panel must determine whether the illness or death arose 
out of and in the course of employment by a DOE contractor and exposure 
to a toxic substance at a DOE facility on the basis of whether it is at 
least as likely as not that exposure to a toxic substance at a DOE 
facility during the course of employment by a DOE contractor was a 
significant factor in aggravating, contributing to or causing the 
illness or death of the worker at issue.


Sec. 852.9  What materials must a Physician Panel review prior to 
making a determination?

    The Physician Panel must review all records relating to the 
application that are provided by the Program Office, including but not 
limited to:
    (a) Medical records;
    (b) Employment records;
    (c) Exposure records;
    (d) Occupational history;
    (e) Workers' compensation records;
    (f) Medical literature or reports;
    (g) Any other records or evidence pertaining to the applicant's 
request for assistance;
    (h) A medical examiner's report, coroner's report, or death 
certificate for any application submitted by an estate or survivor of a 
deceased worker; and
    (i) Information submitted as a part of such a claim or developed by 
the Department of Labor (DOL) or by the Department of Health and Human 
Services (HHS) in the course of processing a claim for the applicant, 
including, where applicable, estimates of an applicant's cumulative 
radiation dose and the calculated probability that this dose was 
responsible for a cancer that is the subject of the claim, for any 
application submitted by an applicant also applying to DOL for benefits 
available under the Act.


Sec. 852.10  How may a Physician Panel obtain additional information or 
a consultation that it needs to make a determination?

    If, after reviewing all materials provided by the Program Office, a 
Physician Panel finds that it needs additional information or 
consultation with a specialist in order to make a determination, it 
must request this information or consultation through the Program 
Office. A Physician Panel may request:

[[Page 52856]]

    (a) A recorded interview under oath with the applicant, by an 
individual designated by the Program Office, if the Physician Panel 
believes only the applicant can provide the necessary information.
    (b) That the applicant provide additional medical information;
    (c) Additional relevant information under the control of DOE or its 
contractors;
    (d) Consultation with designated specialists in fields relevant to 
its deliberations;
    (e) Specific articles or reports, or assistance searching the 
medical or scientific literature; or
    (f) Other needed information or materials.


Sec. 852.11  How is a Physician Panel to carry out its deliberations 
and arrive at a determination?

    (a) Each panel member reviews all materials relating to the 
application.
    (b) All panel members meet in conference, in person, or by 
teleconference in order to discuss the application and arrive at a 
determination agreed to by a majority of the members of the Physician 
Panel.


Sec. 852.12  How must a Physician Panel issue its determination?

    A Physician Panel must submit its determination under Sec. 852.8 
and the findings that provide the basis for its determination to the 
Program Office. The determination and the findings must be in writing 
and signed by all panel members. The findings must include:
    (a) Each illness or cause of death that is the subject of the 
application.
    (b) For each illness or cause of death listed under paragraph (a) 
of this section:
    (1) Diagnosis;
    (2) Approximate date of onset;
    (3) Date of death, if applicable;
    (4) Whether the illness or death arose out of and in the course of 
employment by a DOE contractor and exposure to a toxic substance at a 
DOE facility;
    (5) The basis for the determination under paragraph (b)(4) of this 
section;
    (6) A determination concerning any other medical issue identified 
in the relevant State Agreement; and
    (7) The basis for the determination under paragraph (b)(6) of this 
section.
    (c) The Physician Panel must provide the Program Office with:
    (1) Any evidence to the contrary of the panel's determination, and 
why the panel finds this evidence is not persuasive.
    (2) A listing of information and materials reviewed by the panel in 
making its determination, including:
    (i) Information and materials provided by the Program Office; and,
    (ii) Information and materials obtained by the panel, including 
consultations with specialists, scientific articles, and the record of 
any interview with an applicant.
    (3) Any other information the panel concludes that the Program 
Office should have in order to understand the panel's deliberations and 
determination.


Sec. 852.13  When must a Physician Panel issue its determination?

    (a) A Physician Panel must submit its determination and findings to 
the Program Office within 30 working days of the time that panel 
members have received the complete application for review from the 
Program Office.
    (b) The Program Office may extend the deadline for a panel 
determination under the following circumstances:
    (1) The Physician Panel indicates to the Program Office that it 
needs additional information or a consultation in order to carry out 
its deliberations, as provided for in Sec. 852.10. In this case, the 
panel's determination is due 15 working days after receipt of the 
additional information (or notice from the Program Office that the 
requested information is unavailable), or 15 working days after 
receiving the consultant's recommendations, whichever is applicable; or
    (2) The Physician Panel has requested and the Program Office has 
granted an extension.
    (c) If an extension is granted pursuant to section 852.13(b)(2), 
the Program Office will specify the new deadline.


Sec. 852.14  What precautions must each Physician Panel member and each 
specialist take in order to keep an applicant's personal and medical 
information confidential?

    In order to maintain the confidentiality of an applicant's personal 
and medical information, each Physician Panel member and each 
specialist consulted at the request of a Physician Panel must take the 
following precautions:
    (a) Maintain the confidentiality of applicant records, keep them in 
a secure, locked location, and, upon completion of panel deliberations, 
follow the instructions of the Program Office with regard to the 
disposal or temporary retention of these records;
    (b) Conduct all case reviews and conferences in private, in such a 
fashion as to prevent the disclosure of personal applicant information 
to any individual who has not been authorized to access this 
information;
    (c) Release no information to a third party, unless authorized to 
do so in writing by the applicant; and
    (d) Adhere to the provisions of the Privacy Act of 1974 regarding 
Worker Advocacy Records.


Sec. 852.15  What actions must a Physician Panel member take if that 
member has a potential conflict of interest in relation to a specific 
application?

    (a) If a panel member has a past or present relationship with an 
applicant, an applicant's employer, or an interested third party that 
may affect the panel member's ability to objectively review the 
application, or that may create the appearance of a conflict of 
interest, then that panel member must immediately:
    (1) Cease review of the application; and
    (2) Notify the Program Office and await further instruction from 
the Office.
    (b) The Program Office must then take such action as is necessary 
to assure an objective review of the application.


Sec. 852.16  When may the Program Office ask a Physician Panel to 
reexamine an application that has undergone prior Physician Panel 
review?

    The Program Office may direct the original Physician Panel or a 
different Physician Panel to reexamine an application that has 
undergone prior Physician Panel review if:
    (a) There is significant evidence contrary to the panel 
determination;
    (b) The Program Office obtains new information the consideration of 
which would be reasonably likely to result in a different 
determination;
    (c) The Program Office becomes aware of a real or potential 
conflict of interest of a member of the original panel in relation to 
the application under review; or
    (d) Reexamination is necessary to ensure consistency among panels.


Sec. 852.17  Must the Program Office accept the determination of a 
Physician Panel?

    (a) Subject to the ability of the Program Office to direct a 
reexamination pursuant to Sec. 852.16, the Program Office must accept 
the determination by the Physician Panel unless the Program Office 
determines there is significant evidence contrary to the panel 
determination.
    (b) The Program Office must promptly notify an applicant and the 
relevant DOE contractor(s) of its acceptance or rejection of a 
determination by a Physician Panel.

[[Page 52857]]

Sec. 852.18  Is there an appeals process?

    (a) An applicant may request DOE's Office of Hearings and Appeals 
(OHA) to review:
    (1) A decision by the Program Office not to submit an application 
to a Physician Panel;
    (2) A negative determination by a Physician Panel that is accepted 
by the Program Office; and
    (3) A final decision by the Program Office not to accept a 
determination in the applicant's favor by a Physician Panel.
    (b) An applicant must file a notice of appeal with OHA on or before 
30 days from the date of a letter from the Program Office notifying the 
applicant of a determination appealable under this section.
    (c) An appeal under this section is subject to the procedures of 
OHA in 10 CFR Part 1003.
    (d) A decision by OHA constitutes DOE's final determination with 
respect to an application.


Sec. 852.19  What is the effect of the acceptance by the Program Office 
of a determination by a Physician Panel in favor of an applicant?

    In the event the Program Office accepts a determination by a 
Physician Panel in favor of an applicant:
    (a) The Program Office must assist the applicant in filing a claim 
with the relevant State's workers' compensation system by providing the 
determination and other information provided to the Program Office by a 
Physician Panel pursuant toSec. 852.12 of this part;
    (b) The Program Office may not contest the determination;
    (c) The Program Office must advise the cognizant DOE Secretarial 
Officer to recommend to the Contracting Officer (CO) for a DOE 
contractor that, to the extent permitted by law, the CO direct the 
contractor not to contest an applicant's workers' compensation claim or 
award in any administrative or judicial forum with respect to the same 
health condition for which the applicant received a favorable final 
Physician Panel determination;
    (d) Any costs of contesting a claim or award identified in 
paragraph (c) of this section--that is, any costs of supporting 
arguments or activities with the intent or effect of delaying or 
defeating such a claim or award--are not allowable costs under a DOE 
contract; and,
    (e) All workers' compensation costs incurred as a result of a 
workers' compensation award on a claim based on the same health 
condition that was the subject of a positive Physician Panel 
determination are allowable, reimbursable contract costs to the full 
extent permitted under the DOE contractor's contract with DOE.

[FR Doc. 02-20459 Filed 8-13-02; 8:45 am]
BILLING CODE 6450-01-P