EEOICPA BULLETIN NO. 07-21                     

 

Issue Date: June 15, 2007

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Effective Date: March 8, 2007

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Expiration Date: June 15, 2008

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Subject:  NIOSH’s Program Evaluation Report for Lymphoma.

 

Background: On March 8, 2007, the National Institute for Occupational Safety and Health (NIOSH) issued a document that changed the underlying scientific rationale for performing dose reconstructions for lymphoma.  NIOSH’s findings and its effect on certain cases with a dose reconstruction for lymphoma was documented in the release OCAS-PER-009, “Program Evaluation Report (PER): Target Organs for Lymphoma,” issued on March 8, 2007.  It is NIOSH’s assessment that the following changes apply for target organ selections in lymphoma cases (OCAS-TIB-012, REV-01):

 

 

The change in the dose reconstruction methodology impacts lymphoma cases with a dose reconstruction prior to February 10, 2006, that resulted in a <50% Probability of Causation. 

 


References: OCAS-TIB-012 Rev-01, “Selection for internal and external dosimetry target organs for lymphatic/hematopoietic cancers”; OCAS-PEP-009 Rev-00, “Program Evaluation Plan: Evaluation of the Change in Target Organs for Dose Reconstruction Involving Lymphoma,” approved on December 8, 2006; OCAS-PER-009 Rev-00, “Target organs for lymphoma” dated March 8, 2007.

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-009.

 

Applicability: All staff.

 

Actions:

 

1. In OCAS-PER-009 (Attachment 1), NIOSH has made the decision that a change is required for internal and external dosimetry target organs used for dose reconstruction for lymphoma cases that were performed prior to February 10, 2006, and deemed non-compensable on the basis of a <50% Probability of Causation (POC).  The change in methodology resulted from a detailed investigation by the Office of Compensation Analysis and Support of the etiology of lymphoma.  The investigation found that the site of radiation injury can differ from the site of origin, and that the site listed in the diagnosis may not be the site of primary involvement.  The change in the dose reconstruction methodology includes selecting the organ that would have received the highest radiation dose when the identity of the affected organ is in question or unknown.  As a result, NIOSH found that the change in the organ used for dose reconstructions increases the organ dose, thereby resulting in a higher POC.

 

All lymphoma dose reconstructions completed after February 10, 2006, use the correct target organ selection. The completion date of the dose reconstruction is determined by the “Calculations Performed by” date found on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act.  No action is required in any case with a final decision that was issued based on a dose reconstruction if the “Calculations Performed by” date is after February 10, 2006.

 

2. NIOSH conducted a review of all lymphoma cases with a dose reconstruction prior to February 10, 2006, that resulted in a <50% POC and provided the Division of Energy Employees Occupational Illness Compensation (DEEOIC) a list of those cases via CD.  The CD contains a folder for each case identified by NIOSH and includes a copy of the “Claim Review in Support of Program Evaluation Report” specific to that case.  The report indicates whether the case is now compensable or that the change in method does not alter the compensability of the claim.  Of the 528 cases listed on the CD, 152 cases have been identified as potentially compensable and need to be reopened for a rework of the dose reconstruction based on guidance provided in the PER.  The NIOSH list will be reviewed to ensure that the identified lymphoma cases are sorted by district office.  The list and accompanying CD’s will be provided to the appropriate district offices under separate cover.

 

DEEOIC will also produce a list identifying all lymphoma cases that are potentially affected by OCAS-PER-009.  The NIOSH and DEEOIC lists will be compared by National Office to ensure that all potential lymphoma cases with a dose reconstruction performed prior to February 10, 2006, that resulted in a <50% POC, are identified.  The DEEOIC list will be provided to the appropriate district offices under separate cover with additional guidance.

 

3. In the exercise of the Director’s discretion over the reopening process, the Director is delegating limited authority to the District Director to sign Director’s Orders for reopening.  This delegated authority is limited to reopenings for those cases that are affected by the PER established for lymphoma dose reconstructions.  The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.

 

4. For all lymphoma cases identified by NIOSH as having the potential for compensability based on the change in lymphoma dose reconstruction methodology, the responsible District Director should issue a Director’s Order vacating the final decision and reopening the claim.  The Director’s Order should state that the case is being reopened as a result of the change in scientific methodology by which the dose reconstruction for lymphoma is performed, and that a rework of the dose reconstruction is necessary based on guidance provided in OCAS-PER-009.  A sample Director’s Order is included as Attachment 2.  The District Director should code the case as “MN” (NO Initiates Review for Reopening) with a status effective date as the effective date of this bulletin. 

 

Upon reopening the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction.  The status effective date of the “MD” code is the date of the Director’s Order. 

 

Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been in this specific circumstance.

 

5. Once the claim has been reopened, the responsible CE refers the case to NIOSH for a rework of the dose reconstruction.  For these cases only, a rework request to the National Office Health Physicist is not required.  Instead, the CE should complete an amended NIOSH Referral Summary Document (ANRSD) and forward the ANRSD to the Public Health Advisor (PHA) assigned to the district office at NIOSH.  The ANRSD should include the following statement in the “DOL Information” section, “Rework request due to OCAS-PER-009 and any other applicable modifications.”  The CE should also:

 

a.  Send a letter to the claimant explaining that the case has been returned to NIOSH for a rework of the dose reconstruction as a result of a change in the dose reconstruction methodology as outlined in OCAS-PER-009.  A sample letter to the claimant is included as Attachment 3.

b.  Send a copy of this letter to the PHA at NIOSH assigned to the DO along with the weekly DO submissions to NIOSH.  The dates on the ANRSD and the letter to the claimant must both be the same, since this will be the date used for the status code entry into ECMS.  The CE should code the case as “NI” (Sent to NIOSH) and select the “PEP” (Rework based on Program Evaluation Plan) reason code. (Since this is considered a new dose reconstruction, the CE should not change the existing NR/DR status code to NR/RW as typically done for rework cases.)

 

6. Upon receipt of the new dose reconstruction report that incorporates NIOSH’s findings from OCAS-PER-009, the CE proceeds in the usual manner and prepares a recommended decision.  The CE should code the case as “NR” (Received from NIOSH) and select the “DR” (Dose Reconstruction Received-POC) reason code.  The status effective date will be the date the dose reconstruction is date-stamped into the District Office.

 

7. For those cases NIOSH determined there is no change in the compensability of the claim, the CE is to: print a copy of the “Claim Review in Support of Program Evaluation Report” from the NIOSH CD for inclusion in the case file and send a copy along with a letter to the claimant(s) advising them of the change in the dose reconstruction model.  The letter states that while a change has occurred in the target organ used to conduct the dose reconstruction in the claim, NIOSH has determined it does not change the outcome of the case.  However, the claimant may still request a reopening of the claim for a rework of the radiation dose reconstruction.  A sample letter to the claimant(s) is included as Attachment 4.

 

8. If a claimant requests a reopening of his/her claim as a result of the PER regardless of whether the case is identified in the CD from NIOSH, the District Director should issue a Director’s Order reopening the claim following the procedures as outlined in this Bulletin.

 

Upon receipt of the claimant’s requests for reopening, the District Director should code the case as “MC” (Claimant Requests Reopening). The status effective date is the postmark date, if available, or the date the request is received in the DO or FAB, whichever is earlier.

 

Upon reopening the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction.  The status effective date of the “MD” code is the date of the Director’s Order. 

 

9. FAB personnel must be vigilant for any lymphoma cases with a recommended decision to deny.  If lymphoma is claimed and the dose reconstruction was conducted prior to February 10, 2006, the recommended decision should be remanded to the district office in the usual manner.  The remand should direct the district office to refer the case back to NIOSH for a rework as a result of the PER for lymphoma cases.  The CE should code the case as “F7” (FAB Remand) with a “F7J” (Dose Reconstruction needs to be Reworked) reason code.  The status effective date will be the date of the FAB remand.

 

10. A period of 90 calendar days, effective with receipt of the cases listing, is granted for case files affected by this PER for the district office to either refer the case to NIOSH for a rework of the dose reconstruction or to send a letter to the claimant(s) advising them of NIOSH’s change in the dose reconstruction methodology. 

 

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

 

 

 

 

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

 

Attachment 1

Attachment 2

Attachment 3

Attachment 4

 

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, and District Office Mail & File Sections