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We have been thinking about posting what we consider to be some best practices for EEOICPA claim presentation and development.  Please comment with questions, suggestions or if you have thoughts about other best practices.

Under Part B one of the first steps is the filing of the claim which includes information about the relevant period of employment.  We tend to be expansive in our view of what should be included in the relevant period of employment.  If you include 1950 to 1955 as your best recollection of your parent’s period of employment, employment that you did not know about in 1945 may be inadvertently excluded from the social security records search.  So a period of 1944 through 1961 might lead to more information from social security.  The Department of Labor (DOL) assists with the request for records to Social Security.  This is useful because if you take this record collection task on yourself the turn around may be much slower.  The Claims Examiner (CE) has prepared many requests for Social Security earnings statements and will obtain that record relatively quickly.  If the CE uses a restrictive potential employment period, the effort involved in making an additional request can be significant and unnecessary.

So we generally tend to include the dates around the period of known employment to attempt to capture unknown employment especially where we represent survivors who are not completely sure of where their relative worked and when.  The employment usually occurred long ago, so we should try not to assume we know exactly when it commences and when it was completed unless we have pretty specific information.  From time to time our claimants learn late in the claims process that the worker involved had qualifying employment outside the time period addressed in the initial social security earnings statement.

If you find yourself in this circumstance or have questions about obtaining a social security earnings statement, give us a call at (716) 852-7590.

Under Part E we often find that the trouble begins after a doctor has been asked to write a letter linking occupational exposure to a toxic or otherwise hazardous substance to a current illness or condition such as asbestosis or COPD.  Many claimants, doctors, and advocates know the standard under Part E which requires a showing that the occupational exposure be at least as likely as not (50% or greater likelihood), a significant factor in, the aggravation of, contribution to, or causation of, the illness or condition.  But what many claimants, doctors and advocates do not focus on is the requirement (1) that the letter report contain detailed objective findings, based, if possible, in part on clinical testing, imaging and other tests and (2) a detailed rationale for the finding that describes the objective testing and other relevant information which supports the conclusion that there is a causal connection between the occupational exposure and the illness or condition.  The rationale should also be supported by citations to relevant peer reviewed literature.  We encourage claimants, advocates and doctors to treat the government like any other business or insurance company that seeks to require detailed support before paying claims.  While it sometimes seems that the Department of Labor is never satisfied, the payments made under the program are significant and the procedures are designed to prevent the payment of claims without sufficient supporting evidence.  The work of the Claims Examiners is reviewed by the Hearing Representatives of the Final Adjudication Branch.  The work of the Hearing Representatives is also closely reviewed and the Claims Examiners and Hearing Representatives want their decisions to withstand this scrutiny.  And yes this sometimes verges into the ridiculous.

This is especially important because once a doctor has written what he or she believes to be a helpful note, a second more complex note can be difficult to obtain.  Doctors are busy and sometimes ambivalent about lengthy communications with a federal agency about a subject, his or her patient’s occupational exposure to toxic or hazardous substances years and just as often decades ago.  A good letter from a doctor is much more likely the product of an ordering of the necessary operations.  We generally try to examine the Site Exposure Matrix to understand if there is a causal connection established between the illness or condition and a hazardous or toxic substance found at the facility where the worker worked.  If there is an established connection to the illness or condition and the hazardous or toxic substance which is recognized in the Site Exposure Matrix, this information should be presented to the doctor before he or she writes the letter in support of your claim.  This helps give the doctor some comfort that he or she can rely not simply on your account of your occupational exposure but can also rely on the Department of Labor’s acknowledgement of the potential connection.

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