EEOICPA BULLETIN NO.07-29                      

 

Issue Date: September 20, 2007

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Effective Date: July 31, 2007

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Expiration Date: September 20, 2008

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Subject:  NIOSH’s Program Evaluation Report for the Mallinckrodt and Blockson Chemical Company’s Technical Basis Document (TBD) Revision.

 

Background: On July 31, 2007, the National Institute for Occupational Safety and Health (NIOSH) released OCAS-PER-015, entitled “Mallinckrodt TBD Revision” and OCAS-PER-020, entitled “Blockson TBD Revision.”  The Program Evaluation Reports (PERs) (Attachment 1) for Mallinckrodt and Blockson indicate that the revisions to the TBDs change the dose reconstruction methodology by which dose reconstructions are performed.  It is NIOSH’s assessment that the “magnitude of the effect on individual dose estimates will vary from claim to claim” and that it is not possible to determine the effect on the Probability of Causation (POC) without a new dose reconstruction.

 

In separate letters to the Division of Energy Employees Occupational Illness Compensation (DEEOIC) dated July 31, 2007, NIOSH requested the return of all cases with previously completed dose reconstructions for the Mallinckrodt and Blockson Chemical Company that resulted in a POC below 50%.   

 

This bulletin provides guidance on processing those cases that are potentially affected by the release of OCAS-PER-015 and OCAS-PER-020 where employment is verified at the Mallinckrodt Chemical Co., Destrehan Street Plant (including the St. Louis Airport Storage Site) and/or the Blockson Chemical Company and where a dose reconstruction was performed prior to July 31, 2007 and resulted in a less than 50% POC.

 

References: NIOSH document, OCAS-PER-015, “Mallinckrodt TBD Revision,” approved on July 31, 2007; OCAS-PER-020, “Blockson TBD Revision,” approved on July 31, 2007.

 

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-015 and OCAS-PER-020.

 

Applicability: All staff.

 

Actions:

 

1. On June 14, 2007, NIOSH revised the Technical Basis Document (TBD) for the Mallinckrodt Chemical Co., Destrehan Street Plant (which also includes the St. Louis Airport Storage Site) to enable the reconstruction of doses from available monitoring and coworker data for the period of 1949 – 1962; to change the method for assigning uranium, radium and thorium coworker intakes and radon exposures; and to address “unmonitored raffinate exposure” for the period of 1948–1958.  In addition, on June 20, 2007, NIOSH revised the TBD for the Blockson Chemical Company by revising the internal and external dose modeling and adding site information and radiological data discussion.  Because changes to a TBD change the underlying scientific methodology by which dose reconstructions are performed, NIOSH issued OCAS-PER-015, entitled “Mallinckrodt TBD Revision” and OCAS-PER-020, entitled “Blockson TBD Revision” effective July 31, 2007.  Since these changes affect the outcome of the claim, the previous dose reconstructions for claims from these sites are no longer valid.  As a result, certain claims need to be returned to NIOSH for a new radiation dose reconstruction.  

 

The release of OCAS-PER-015 affects those cases with verified employment at the Mallinckrodt Chemical Co., Destrehan Street Plant and/or the St. Louis Airport Storage Site where the dose reconstruction was performed prior to July 31, 2007, and resulted in a less than 50% POC. Please note that OCAS-PER-015 does not pertain to the Mallinckrodt Weldon Springs Plant.

 

The release of OCAS-PER-020 affects those cases with verified employment at the Blockson Chemical Company where the dose reconstruction was performed prior to July 31, 2007, and resulted in a less than 50% POC.

 

No action is required on cases with a final decision that was issued based on a dose reconstruction if the “Calculations Performed by” date found on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act is after July 31, 2007.

 

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 Mallinckrodt Chemical Co. (Destrehan Street Plant and/or the St. Louis Airport Storage Site) and/or the Blockson Chemical Company, where a dose reconstruction was performed on or prior to July 31, 2007 (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% 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-015/OCAS-PER-020] 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.  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 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 Mallinckrodt Chemical Co. (Destrehan Street Plant and/or the St. Louis Airport Storage Site) and/or the Blockson Chemical Company that have a recommended decision to deny based on a less than 50% POC.  If the dose reconstruction was performed on or prior to July 31, 2007, 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-015 or OCAS-PER-020, as appropriate. 

 

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.

 

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 July 31, 2007, NIOSH issued [OCAS-PER-015, entitled “Mallinckrodt TBD Revision” or OCAS-PER-020, entitled “Blockson TBD Revision.”]  The changes outlined in [OCAS-PER-015/OCAS-PER-020] for the [Mallinckrodt or Blockson] Chemical Company 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-015 or OCAS-PER-020], 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 PERs established for the Mallinckrodt and Blockson Chemical Company TBD revision.  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 Mallinckrodt Chemical Co. (Destrehan Street Plant and/or St. Louis Airport Storage Site) and/or Blockson Chemical Company, and where a dose reconstruction was performed prior to July 31, 2007 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 rework of the dose reconstruction is necessary based on guidance provided in OCAS-PER-015 or OCAS-PER-020, as appropriate.  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.

 

10. If a claimant requests a reopening of his/her claim as a result of OCAS-PER-015 or OCAS-PER-020, the case file must be evaluated to determine whether or not the claim warrants a reopening.  Simply identifying a PER 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 Mallinckrodt Chemical Co. (Destrehan Street Plant and/or St. Louis Airport Storage Site) and/or Blockson Chemical Company and the dose reconstruction was performed prior to July 31, 2007, 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.

 

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-PER-015 or OCAS-PER-020 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, and 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 Center