EEOICPA BULLETIN NO. 07-26                     

 

Issue Date: August 8, 2007

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Effective Date: March 8, 2007

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Expiration Date: August 8, 2007

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Subject:  Supplemental Guidance for Additional Cases Affected by NIOSH’s Program Evaluation Report for Lymphoma.

 

Background: On June 15, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued EEOICPA Bulletin 07-21, NIOSH’s Program Evaluation Report for Lymphoma.  EEOICPA Bulletin 07-21 provided guidance on processing cases that were identified by NIOSH as potentially affected by the release of OCAS-PER-009, Target Organs for Lymphoma. 

 

This Bulletin provides guidance for those cases identified by DEEOIC as being potentially affected by the release of OCAS-PER-009, in which a “Claim Review in Support of Program Evaluation Report (PER)” was not received and the case contains a final decision to deny based on a lymphoma diagnosis and a POC of less than 50%.

 

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, viewed at http://www.cdc.gov/niosh/ocas/pdfs/pers/oc-per9-r0.pdf.

 

Purpose: To provide procedures for processing claims identified by DEEOIC that do not have an individual PER.

 

Applicability: All staff. 

 

Actions:

 

1. In OCAS-PER-009 (Attachment 1), NIOSH determined 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 less than 50% Probability of Causation (POC).  NIOSH found that the change in the target organ used for dose reconstructions increases the organ dose, thereby resulting in a higher POC.  As such, certain lymphoma cases containing a final decision to deny based on a POC of less than 50% need to be reopened and returned to NIOSH for a new dose reconstruction.

 

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 for a final decision to deny a cancer for a less than 50% POC, if the applicable dose reconstruction has a “Calculations Performed by” date after February 10, 2006.

 

2. Both NIOSH and DEEOIC produced separate lists identifying all lymphoma cases that are potentially affected by OCAS-PER-009.  The NIOSH and DEEOIC lists were 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 less than 50% POC were identified.  The NIOSH list of cases was provided to the appropriate district offices on June 15, 2007, with instructions on retrieving a copy of NIOSH’s “Claim Review in Support of Program Evaluation Report” for each corresponding case file from the DEEOIC Shared Drive. 

 

The DEEOIC list of cases (cases that were not on the list provided by NIOSH and are the subject of this directive) will be distributed to the appropriate district offices under separate cover. A “Claim Review in Support of Program Evaluation Report” is not available for these cases.  As such, it is necessary for these cases to be reviewed for possible reopening and return to NIOSH for a new dose reconstruction.

 

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 potentially 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 on the DEEOIC list, with a confirmed diagnosis of lymphoma (ICD-9 200-208.91), the responsible Claims Examiner (CE) must review the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation.  If the “Calculations Performed by” date is on or before February 10, 2006, and the POC is less than 50%, 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 completing the Director’s Order to reopen 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 “MZ” status code is not necessary).  

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 cases affected by this bulletin, 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. In addition, the existing POC should not be deleted from ECMS.)

 

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. The POC should be updated in ECMS based on the new dose reconstruction.

 

7. It is possible that during the course of the review of these cases, NIOSH may supply the National Office with an individual Program Evaluation Report (PER) or Individual Case Evaluation (ICE) form for each case (or a PER that represents a population of cases) potentially affected by the PER.  The individual PER or ICE will serve as documentation that the case file has been reviewed by NIOSH and that NIOSH has determined that:

 

·        the change to the scientific methodology outlined in the PER affects the outcome of the claim and a new dose reconstruction is required, or

·        the change to the scientific methodology outlined in the PEP/other modifications, does not affect the outcome of the claim and a new dose reconstruction is not required.

 

If an individual PEP/ICE is received indicating that a new dose reconstruction is required, the case should be reopened/referred to NIOSH (if not already at NIOSH) for a new dose reconstruction following procedures as outlined in this bulletin.

 

If an individual PEP/ICE is received indicating that a new dose reconstruction is not required, but lymphoma is the diagnosed condition and the dose reconstruction was performed prior to February 10, 2006, the CE is to send a copy of the individual PEP/ICE 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.

 

NOTE: A PER/ICE cannot be used in lieu of a dose reconstruction after a reopening is issued.  A new dose reconstruction must be received and the new POC must be entered in ECMS.

 

If an individual PER or ICE is received in the National Office, it will be forwarded to the appropriate district office for inclusion in the case file. 

 

8. If a claimant requests a reopening of his/her claim as a result of the PER for lymphoma, regardless of whether the case is identified by NIOSH or DEEOIC, the case file must be evaluated to determine whether or not the claim warrants a reopening (unless DEEOIC sent a letter to the claimant as instructed under Action Item #7).  Simply identifying OCAS-PER-009 is not considered new evidence and is not sufficient to warrant a reopening.  A reopening should be granted only if the evidence of file supports a diagnosis of lymphoma and the dose reconstruction was performed prior to February 10, 2006 and resulted in a less than 50% POC.  If these requirements are met, 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.

 

For all claimant requests for reopening that do not meet the criteria for reopening, the District Director should prepare a memorandum to the Director of DEEOIC and forward the case file to National Office for review.

 

9. A period of 120 calendar days, effective with receipt of the case listing that will be sent under separate cover, is granted for case files affected by this PER for the district office to issue a Director’s Order reopening the cases and returning the case file to NIOSH for a new dose reconstruction.

 

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

Distribution List No. 7