EEOICPA BULLETIN NO.02-19
Issue
Date:
________________________________________________________________
Effective
Date:
________________________________________________________________
Expiration
Date: July 23, 2003
________________________________________________________________
Subject:
Processing NIOSH Cases
Background: Section 20 C.F.R 30.115(a) of the
interim final regulations currently provides that the Office of Workers
Compensation Programs (OWCP) will forward eligible claimant application
packages to HHS for dose reconstruction. The final rule 42 CFR Part 82 details
the responsibilities of NIOSH in the reconstruction of an employee’s dose. The
final rule 42 CFR Part 81 details DOL’s responsibilities in calculating the
probability of causation based on NIOSH’s dose reconstruction for the employee.
This Bulletin provides additional details related to the cases sent to and received from NIOSH. The items addressed below were discussed and agreed to in a meeting between DOL and NIOSH in Cincinnati, Ohio, on May 8 – 9, 2002.
Reference: Interim final regulation 30 CFR
30.115(a) and (c), 30.210(b); Final Regulation 42 CFR Part 81 Subpart E; and
Final Regulation 42 CFR Part 82.4 and Subpart D.
Purpose:
To provide additional details related to DOL cases sent to and received
from NIOSH.
Applicability: All staff.
Actions:
1. NIOSH regulations state that they will
interview all claimants. Thus even if
DOL has not established a covered survivor, NIOSH still needs to know who the
actual claimants are (individuals that filed
EE-2). On the NIOSH Referral
Summary, the CE should list only those individuals that have filed a
claim. The CE should not list other possible survivors.
If
NIOSH receives calls from individuals who allege they are survivors and are not
on the NIOSH Referral Summary, NIOSH will refer them to DOL. If the CE receives
a call, the CE should advise the individual of the requirements under
EEOICPA. The individual should further
be advised that in order to be considered a claimant and to be interviewed by
NIOSH s/he must file an EE-2. If an EE-2 is received, the CE should
advise NIOSH that the individual is a claimant and can be interviewed by NIOSH.
The CE should
still list other contacts and representatives on the NIOSH Referral Summary,
clearly indicating that these individuals are not claimants.
2. The OCAS-1 Form is provided to the claimant after completion of the dose reconstruction report. The claimant’s signature on the OCAS-1 Form does not mean that the claimant agrees with the dose reconstruction, rather the claimant is only agreeing to the process and agreeing that s/he provided NIOSH with all evidence s/he had.
The claimant is allowed up to 60 days to sign the OCAS-1 Form during which time the claimant may provide additional facts. If additional information is submitted, NIOSH will review the evidence, prepare a new dose reconstruction report, and send a new OCAS-1 Form to the claimant for an additional 60-day comment period.
If
the claimant does not sign the OCAS-1 Form or submit comments within 60 days,
NIOSH will send the claimant a letter informing the individual that NIOSH will
administratively close the case. NIOSH
will then send a letter to DOL addressing the administrative closure of the
case. The CE should then
administratively close the case
by entering code “NO” in the case status screen and the description “NIOSH
Administrative Closure” will appear. The
CE should enter the date of receipt of the NIOSH letter (date stamp) as the
status effective date. Thereafter the CE should send a letter to the claimant
advising that the case has been administratively closed by NIOSH due to a lack
of signature on the OCAS-1 Form. In order
to re-open the case, the claimant must advise DOL of intent to sign the OCAS-1
Form. The claimant should be further
advised that DOL is unable to complete the adjudication process without NIOSH’s
findings.
3.
If the
case has multiple claimants NIOSH will wait 60 days for receipt of all OCAS-1 Forms
signed by each claimant. If, after 60
days, NIOSH receives only one signed OCAS-1 Form, NIOSH will forward the dose
reconstruction package to DOL.
The CE should
send a development letter to the claimant(s) that did not sign the OCAS-1
Form. The claimant(s) should be asked to
provide within 30 days information or reasons s/he did not sign the OCAS-1
Form. The CE
should consider any arguments given by claimant(s), and if substantive,
refer the case back to NIOSH.
Substantive arguments would include discovery of additional relevant
information related to dose reconstruction, e.g., information or documents
concerning radiological exposures, other co-workers, or operations and
radiological controls at the specific facility.
If arguments for refusals to sign are not provided or not substantive,
or if no response is received within 30 days, the CE
should issue a recommended decision awarding (or
denying) benefits to all eligible claimants (even those claimants that
did not sign the form). One signed OCAS-1
Form will be sufficient to render the decision.
4.
When
the case is returned from NIOSH, all case file documents will be forwarded to
DOL via compact disc (CD), since all documents referred to NIOSH and used in
the dose reconstruction are optically scanned into the NIOSH computers. NIOSH will uniquely identify (on the label on
the CD case) the case by District Office and Social Security Number. The CD will include
the dose reconstruction input file (Excel spreadsheet) to be used for
the IREP probability of causation calculation.
NIOSH will
have the pertinent documents (dose reconstruction report, other records of
import to CE) at the front of the CD so that the CE can include those documents
in the hard copy for review purposes.
The CE should print out the dose reconstruction report and the OCAS-1
Form and include these as hard copies in the DOL case file.
The CE should
keep the NIOSH CD with the case file.
Also, after the CE runs the probability of causation calculation, a hard
copy of the DOL IREP run and an electronic file of that calculation, on a 3.5
inch diskette, should also be retained in the case file.
5.
Information
contained on the NIOSH CD will include:
·
Dose
reconstruction files, including phone interview report (CATI – Computer Assisted
Telephone Interview); dosimetry data; the NIOSH Report of Dose
Reconstruction under EEOICPA; NIOSH’s probability of causation calculation; the
OCAS-1 Form; the NIOSH-IREP input file; and pertinent AEC/DOE reports, journal
articles or other documents.
·
Correspondence,
including NIOSH letters to claimants, phone conversation notes, and Internet
E-mails.
·
DOE
files (data files listed in order of importance on the CD), including DOE dose
and work history information and other DOE documents that NIOSH requested, such
as incident reports and special studies.
·
DOL
files, including a copy of the case file optically imaged by NIOSH and the OCAS
tracking sheets (signatures and dates).
The CE should
note that NIOSH will incorporate all important information from the above
sources into the dose reconstruction report.
Publicly available documents will be referenced by citation. Documents not publicly available will be
placed in the record and, as noted above, will be included on the CD.
6. It is not necessary for the CE to review all of the documents on the CD. Those documents that normally will not require review include the DOE documents, the claimant interview, the NIOSH-run probability of causation calculation, and the NIOSH conducted closing interview. As a note, NIOSH does run the probability of causation (POC) calculation for each employee. This reduces unnecessary time for NIOSH in completing the dose reconstruction, and the POC results are incorporated into the dose reconstruction findings. NIOSH’s IREP run is utilized for their internal purposes only. The CE should not use NIOSH’s IREP calculations as a basis for a determination in the claim. The CE will always run the IREP separately.
7. If, during the course of an interview, NIOSH
determines that there is additional covered employment, they will identify any
differences in a cover memo to DOL upon return of the case record. NIOSH will perform dose reconstruction on all
verified employment (even if
they identified more than DOL had originally stated) and forward the case
record to DOL with the completed dose reconstruction report. If the CE determines that the new verified
employment is not established for any reason, the CE should refer the case back
to NIOSH for a new dose reconstruction.
8. In recommended decisions (sample recommended
decision attached), the CE will rely on NIOSH’s dose reconstruction report and
should not question those findings.
Appeal occurs at the FAB level. A
notice of claimant rights goes out with recommended decision. The recommended decision should include a
discussion of the scope of the FAB’s review of the dose reconstruction
process. The FAB will only remand the
case if there is evidence that NIOSH did not review relevant factual material.
If the
claimant wishes to argue the results of the dose reconstruction, the NIOSH
decision is binding on the FAB, unless the argument on the dose reconstruction
process is significant. The FAB may make
this determination of “significant evidence/argument” by referring the case to
the National Office health physicist.
If FAB
remands a case to the district office for forwarding to NIOSH for
reconsideration, NIOSH will amend their dose reconstruction report based on
their review. NIOSH will then forward
the case back to the district office for a new recommended decision (after a
new OCAS-1 Form is sent to the claimant).
Disposition:
Retain until incorporated in the Federal (EEOICPA) Procedure Manual
PETER
M. TURCIC
Director,
Division of Energy Employees
Occupational
Illness Compensation
Distribution
List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical
Assistants, Customer Service Representatives, Fiscal Officers, FAB District
Managers, Operation Chiefs, Hearing Representatives, District Office Mail &
File Sections
On September
30, 2001, Peter James filed a claim for benefits under EEOICPA seeking a
$150,000 award of compensation.
Mr. James
submitted a medical report from Dr. Chou dated November 10, 2000 indicating that
he has been receiving treatment for cancers of the kidney and lung. Mr. James also submitted a pathology report
dated October 21, 1999, which showed that he has a malignant tumor in his right
kidney that was most consistent with primary renal cancer. A second pathology report dated July 6, 2000
showed that he was also diagnosed with primary lung cancer.
A copy of the
case file along with a NIOSH Referral Summary was forwarded to NIOSH for dose
reconstruction in December 2001. On May
30, 2002, the Office received the “NIOSH Report of Dose Reconstruction under
EEOICPA,” dated May 28, 2002, which provided the estimates of dose to the
primary kidney and primary lung sites.
NIOSH estimated annual doses totaling 15 rem for the kidney and 20 rem
for the lung. Based on these dose
estimates, the calculation of probability of causation was completed using
NIOSH-IREP, which is an interactive software program. The probability of causation for the two
primary cancers was determined to be 55%.
Peter James
filed a claim for benefits on September 20, 2001.
Mr. James was
a covered DOE employee at the Y-12 Plant located in Oak Ridge, Tennessee from
1970 through 1990.
Mr. James was
monitored through the use of a dosimetry badge for exposure to radiation during
his employment at the Y-12 Plant.
On October
21, 1999, Mr. James was diagnosed with primary renal cancer.
On July 6,
2000, Mr. James was diagnosed with primary lung cancer. These diagnoses were made after Mr. James
began his employment with the Department of Energy.
Based on the
dose reconstruction performed by NIOSH, the probability of causation (the
likelihood that a cancer was caused by radiation exposure incurred by the
employee while working at Y-12) was calculated for the two primary
cancers. The probability of causation values
were determined using the upper 99 percent credibility limit, which helps
minimize the possibility of denying claims to employees with cancers likely to
have been caused by occupational radiation exposures. It was shown that the Mr. James’ renal and lung
cancers were “at least as likely as not” (a 50% or greater probability) caused
by radiation doses incurred while employed at the Y-12 Plant.
The dose
reconstruction estimates were performed in accordance with 7384n(d) of EEOICPA
and 42 CFR Part 82 §82.26. The Probability of Causation was completed in
accordance with 7384n(c)(3) of EEOICPA and Subpart E of 42 CFR Part 81. Further, the calculation based on two primary
cancer sites was completed in accordance with 42 CFR Part 81 §81.25. The claimant is entitled to compensation in
the amount of $150,000 pursuant to 7384s of EEOICPA. He is also entitled to medical benefits for
primary renal cancer and primary lung cancer.