EEOICPA BULLETIN NO.07-28                      

 

Issue Date: September 6, 2007

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Effective Date: March 21, 2007

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Expiration Date: September 6, 2007

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Subject:  NIOSH’s Program Evaluation Report for the Paducah Gaseous Diffusion Plant.

 

Background: On March 21, 2007, the National Institute for Occupational Safety and Health (NIOSH) released OCAS-PEP-013, entitled “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant.”  The PEP outlines NIOSH’s plan for evaluating the effect on dose reconstructions of changes to multiple Paducah Gaseous Diffusion Plant (GDP) Technical Basis Documents (TBDs) that were made to ensure that the published isotopic ratios for transuranic radionuclides meet the criteria of providing either an accurate or maximum dose estimate. NIOSH determined that the current ratios in the prior TBDs did not meet that goal.  As such, the Occupational Internal Dose and Occupational Environmental Dose TBDs were updated to account for the transuranic uranium isotopic ratios (relative to uranium) for estimating dose from these radionuclides.

 

In response to OCAS–PEP-013, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a letter to NIOSH on July 2, 2007.  DEEOIC informed NIOSH that all cases potentially affected by the release of OCAS-PEP-013 would be reopened and returned to NIOSH for a new radiation dose reconstruction.  A copy of DEEOIC’s letter is included as Attachment 1.

 

On August 13, 2007, NIOSH released the Program Evaluation Report (PER).  The PER indicates that certain claims potentially impacted by the change should be returned for a new dose reconstruction.

 

This bulletin provides guidance on processing those cases that are potentially affected by the release of OCAS-PER-013 where employment is verified at the Paducah GDP and a dose reconstruction was performed prior to November 7, 2006 and resulted in a less than 50% Probability of Causation (POC).

 

References: NIOSH document, OCAS-PEP-013, “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant,” effective March 21, 2007, viewed at http://www.cdc.gov/niosh/ocas/pdfs/peps/oc-pep-013-r0.pdf; OCAS-PER-013, “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant,” effective August 13, 2007.

 

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-013.

 

Applicability: All staff. 

 

Actions:

 

1. NIOSH’s OCAS-PER-013 provides a plan for evaluating which dose reconstructions are impacted by changes in the Occupational Internal Dose and Occupational Environmental Dose Technical Basis Documents (TBDs) that were made to the transuranic uranium isotopic ratios (relative to uranium) for estimating dose from these radionuclides. It is NIOSH’s assessment that these changes will increase the estimated radiation dose.  As a result, certain claims need to be returned to NIOSH for a new radiation dose reconstruction.  

 

This Program Evaluation Report (PER) affects those cases with verified employment at the Paducah GDP where the dose reconstruction was performed prior to November 7, 2006 (as determined by the “Calculations Performed by” date found on NIOSH’s Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act), and resulted in a less than 50% Probability of Causation (POC).

 

No action is required on cases with a final decision that were issued based on a dose reconstruction if the “Calculations Performed by” date is after November 7, 2006.

 

2. A comprehensive list of cases will be distributed to the appropriate district offices under separate cover.

 

3. For those cases currently in posture for a recommended decision with employment identified at the Paducah Gaseous Diffusion Plant (GDP), where a dose reconstruction was performed on or prior to November 7, 2006 and resulted in a less than 50% POC, the district office/CE2 Unit is to return those cases to NIOSH for a new dose reconstruction.

 

4.  When referring these cases to NIOSH for a new dose reconstruction, a request to the National Office Health Physicist is not required.  Instead, the Claims Examiner (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 the release of OCAS-PER-013 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 new dose reconstruction as a result of a change in the dose reconstruction methodology for the Paducah GDP.  A sample letter to the claimant is included as Attachment 2.

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.

 

(Note: 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. Furthermore, if a POC value is already entered into ECMS, the CE should not delete the POC.  The new POC will simply be updated once it is calculated.)

 

Upon receipt of the revised dose reconstruction report, 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.

 

5. For cases currently pending a final decision at the FAB, the Hearing Representative/CE is to identify those cases with verified employment at the Paducah GDP with a recommended decision to deny based on a less than 50% POC.  If the dose reconstruction was conducted on or prior to November 7, 2006, the recommended decision should be remanded to the district office in the usual manner.  The Remand Order should direct the district office to refer the case back to NIOSH for a new dose reconstruction as a result of the release of OCAS-PER-013. 

 

The Hearing Representative/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.

 

6. The following statement should be included in the Remand Order regarding the return of the case to NIOSH for a rework of the radiation dose reconstruction.

 

On March 21, 2007, NIOSH issued OCAS-PER-013 entitled, “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant.” The changes outlined in OCAS-PER-013 for the Paducah GDP not only affect the underlying scientific methodology by which the dose reconstruction was performed, but could potentially affect the outcome of a claim.

 

The DEEOIC is obligated to ensure that the application of the dose reconstruction methodology is administered in a fair and consistent manner.  Given the revision to the underlying scientific assumptions by which the dose reconstruction was performed by NIOSH, and the release of OCAS-PER-013, the prior dose reconstruction/POC calculation on your claim is now invalid.  While the modification to the dose reconstruction methodology may not impact the outcome of your claim, it is necessary for the claim to undergo a new dose reconstruction by NIOSH.

 

7. 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 the Paducah GDP TBDs with isotopic ratios.  The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.

 

8.  For those cases that have a final decision to deny with verified employment at the Paducah GDP, and where a dose reconstruction was performed prior to November 7, 2006 (as determined by the “Calculations Performed by” date found on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act) and resulted in a less than 50% POC, 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 is performed by NIOSH, and that a new dose reconstruction is necessary based on guidance provided in OCAS-PER-013.  A sample Director’s Order is included as Attachment 3.  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 “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.

 

9. If a claimant requests a reopening of his/her claim as a result of the OCAS-PER-013, the case file must be evaluated to determine whether or not the claim warrants a reopening.  Simply identifying OCAS-PER-013 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 verified employment at the Paducah GDP and the dose reconstruction was performed prior to November 7, 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 request 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.

 

10. When reviewing cases under this Bulletin, CEs must keep in mind other changes that might affect the cases and take the action that is appropriate under the circumstances.  For example, if a case should be reopened and accepted under a Special Exposure Cohort class, the CE should take the action that will result in the most expedient positive outcome.

 

11. A period of 120 calendar days, effective with the receipt of the case listing, is granted for the district office/CE2 Unit to return case files affected by OCAS-PEP-013 to NIOSH for a new dose reconstruction, issue a Director’s Order to reopen the case and refer the case to NIOSH for a new dose reconstruction, or for FAB to remand the case to the district office for a return to NIOSH.

 

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

 

Distribution List No. 1: All DEEOIC Employees

Distribution List No. 7: Resource Centers