EEOICPA BULLETIN NO.03-24

Issue Date: May 2, 2003

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Effective Date: May 2, 2003

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Expiration Date: May 3, 2004

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Subject: Probability of Causation Instructions for Certain Special Circumstances

Background: Section 20 CFR 30.115(a) of the final regulations provides that the Office of Workers Compensation Programs (OWCP) will forward eligible claimant application packages to Health and Human Services (HHS) for dose reconstruction. When the dose reconstructions are received from the National Institute for Occupational Safety and Health (NIOSH) , the Claims Examiner (CE) determines the probability of causation (PoC)using NIOSH-IREP (42 CFR 81, Subpart E). This Bulletin provides additional details for the processing of claims related to seven issues involving multiple cancers.

The items addressed below were compiled from discussions arising out of the NIOSH training sessions held in each of the district offices in January 2003. These issues have been resolved through communication between DOL and NIOSH.

Reference: Final regulation 20 CFR 30.115(a); 42 CFR 81, Subpart E; and Procedure Manual, Chapter 2-600.

Purpose: Provide procedures for processing PoC for cases involving certain special circumstances with regard to multiple cancers.

Applicability: All staff.

Actions:

When a claimant provides evidence that the covered employee had multiple skin cancers, including relatively large numbers of skin cancers (e.g., greater than 12), the CE will proceed in the following manner.  Each malignant skin neoplasm, e.g., basal or squamous cell cancer, will be considered as a separate primary cancer, unless it is noted in the medical record that the neoplasm is a metastatic lesion.  For NIOSH dose calculations, the date of diagnosis and the location (e.g., arm, neck, back) for each skin cancer are important and should be indicated in the medical section of the NIOSH Referral Summary Document.

Since IREP only accommodates 12 entries for the equation used in multiple primary cancer situations, the CE must use the 12 primary skin cancers with the highest probabilities of causation (PoCs).  If there are more than 12 primary skin cancers and the PoC result is still below 50%, the CE will contact the DOL Health Physicist and he will create an Excel spreadsheet based on the equation for calculating the PoC for multiple primary cancers.

Multiple primary cancer locations for other organs are also a possibility.  If more than one primary cancer location is identified for an organ in the medical records, e.g., multiple sites of primary cancer in the lung, the CE should note that fact in the medical section of the NIOSH Referral Summary Document. The CE notes the cancer locations within organ and the diagnosis date. NIOSH will perform dose calculations for each primary cancer site in a specific organ. When the dose reconstruction results are reported by NIOSH, the CE will calculate PoC values for each of the primary cancers in that organ.

2. For cases involving multiple primary cancers wherein the PoC for the cancers is greater than 50% (calculated using the multiple primary cancer equation in 42 CFR 81.25), all of the primary cancers will be covered for medical benefits. 

3. In some cases, multiple primary cancers may be present, including CLL, and the PoC is greater than 50%. One situation might involve two or more primary cancers, one of which is CLL, and the PoC based on the other primary cancer(s) is greater than 50% (CLL has a PoC = 0).  Another situation might involve a claimant who previously received an award (PoC greater than 50%) and later develops CLL.  In these cases, the medical benefits for CLL will be covered.

4. As part of their efficiency review process during dose reconstruction, NIOSH performs preliminary PoC calculations. When a covered employee has more than one primary cancer, NIOSH will only perform dose reconstruction on the cancers until they yield, together, a preliminary PoC greater than 50%. If all primary cancers claimed have not gone through dose reconstruction when the 50% threshold has been reached, NIOSH will not complete dose reconstruction for the rest of the cancers. The CE will only use the dose reconstruction results for the primary cancers provided by NIOSH as long as these data result in a PoC of greater than 50%. The calculation of additional PoCs for the remaining primary cancers, which were not calculated, would only make the final numerical value of the PoC larger. All of the cancers, including those for which NIOSH did not perform a dose calculation, are covered for medical benefits.

5. In cases where there are only secondary cancers and no primary cancers, NIOSH will stop the dose reconstruction after they find a cancer that results in a PoC greater than 50%. They will provide only the dose reconstruction data for that secondary cancer to the DO for the CE to calculate the PoC. All of the secondary cancers are covered for medical benefits even if no dose reconstruction was performed for a secondary cancer. EEOICP Procedure Manual Chapter 2-600.11(e) provides additional guidance for these situations.

6. There may be cases where there are only secondary cancers and NIOSH’s preliminary estimate of the PoC is less than 50%. In these events, NIOSH will send all of the dose reconstructions for the secondary cancers.  The CE will perform the IREP calculations for all of the secondary cancers, which is the current practice. The CE selects the site producing the highest estimate for the PoC to adjudicate the claim.

7. For leukemia cases, NIOSH will provide dose reconstruction results for all of the leukemia models, as applicable. Following the standard approach, the CE will make the final PoC determination based on the leukemia model that yields the highest PoC.

Disposition: Retain until incorporated in the Federal (EEOICP) Procedure Manual.

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

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