EEOICPA BULLETIN NO.08-05                      

 

Issue Date: October 29, 2007

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Effective Date: July 31, 2007

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Expiration Date: October 29, 2008

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Subject:  NIOSH’s OCAS-PER-018, entitled “Los Alamos National Laboratory Technical Basis Document Revision.”

 

Background: On July 31, 2007, the National Institute for Occupational Safety and Health (NIOSH) released OCAS-PER-018, entitled “Los Alamos National Laboratory TBD Revision.”  The purpose of the Program Evaluation Report (PER) is to evaluate the effect of the revision to the Technical Basis Document (TBD) on previously completed dose reconstructions.  It is NIOSH’s assessment that the change would affect the dose assigned and the probability of causation (POC) for certain claims.  A copy of OCAS-PER-018 is included as Attachment 1.

 

This bulletin provides guidance on processing cases that are potentially affected by the release of OCAS-PER-018 where employment is verified at the Los Alamos National Laboratory (LANL) and where a dose reconstruction was performed prior to May 30, 2007 and resulted in a POC of less than 50%.

 

References: NIOSH document, OCAS-PER-018, “Los Alamos National Laboratory TBD Revision,” approved on July 31, 2007 found at http://198.246.98.21/niosh/ocas/pdfs/pers/oc-per18-r0.pdf.

 

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-018.

 

Applicability: All staff.

 

Actions:

 

1. On May 30, 2007, NIOSH revised the external dose TBD for the LANL to add median photon adjustment values and increase the skin/shallow dose for the Los Alamos Meson Physics Facility at the Los Alamos Neutron Science Center (LAMPF/LANSCE).  Because changes to a TBD change the underlying scientific methodology by which dose reconstructions are performed, NIOSH issued OCAS-PER-018, entitled “Los Alamos National Laboratory TBD Revision,” effective July 31, 2007.  Since these changes may affect the outcome of the claim, the previous dose reconstruction for certain cases are no longer valid.  As a result, a new radiation dose reconstruction is necessary.

 

The release of OCAS-PER-018 affects those cases with verified employment at the LANL where the dose reconstruction was performed prior to May 30, 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 POC of less than 50%.

 

No action is required on cases with a final decision that was issued based on a dose reconstruction if the “Calculations Performed by” date is on or after May 30, 2007.

 

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

 

3. A claims examiner (CE) who receives a claim involving verified employment at LANL, must review the case for inclusion in the LANL Special Exposure Cohort (SEC) in accordance with EEOICPA Bulletin 07-11, Processing Claims for a new SEC Class for covered employees with exposure to radioactive lanthanum (RaLa) at work locations within Los Alamos National Laboratory and EEOICPA Bulletin 07-23, Processing Claims for a new Special Exposure Cohort (SEC) Class for covered employees of the Los Alamos National Laboratory (LANL), March 15, 1943 through December 31, 1975.  If the criteria established for the LANL SEC’s are not met, then the CE should proceed with reviewing the case as outlined below.

 

4. For those cases currently in posture for a recommended decision with verified employment at LANL, where a dose reconstruction was performed prior to May 30, 2007 and resulted in a POC of less than 50%, the CE is to return those cases to NIOSH for a new dose reconstruction.

 

5.  When referring these cases to NIOSH for a new dose reconstruction, a 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 the release of OCAS-PER-018 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.

 

6. For cases currently pending a final decision at the Final Adjudication Branch (FAB), the Hearing Representative/CE is to identify those cases with verified employment at LANL that have a recommended decision to deny based on a POC of less than 50%.  If the dose reconstruction was performed prior to May 30, 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-018. 

 

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.

 

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

 

On July 31, 2007, NIOSH issued OCAS-PER-018, entitled “Los Alamos National Laboratory TBD Revision.”  The changes outlined in OCAS-PER-018 for LANL 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-018, 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.

 

8. 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 LANL TBD revision.  The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.

 

9. For those cases that have a final decision to deny with verified employment at LANL, and not likely part of the SECs, where a dose reconstruction was performed prior to May 30, 2007 and resulted in a POC of 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 is performed by NIOSH, and that a new dose reconstruction is necessary based on guidance provided in OCAS-PER-018.  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-018, and the case is not one that is identified on the comprehensive list of cases distributed to the district offices, 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 LANL and the dose reconstruction was performed prior to May 30, 2007, and resulted in a POC of less than 50%.  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 as a result of the LANL PER that do not meet the criteria for reopening as outlined in this bulletin, the District Director should prepare a memorandum to the Director of DEEOIC and forward the case file to National Office for review.

 

11. The proposed district office operational plan goal for the list of identified cases is to refer the cases back to NIOSH (including reopening, if required) within 45 days of the date of this Bulletin for at least 50% of the cases, and within 90 days for 95% of the cases.  All cases requiring action due to this Bulletin should be completed within 120 days.

 

12. To track progress on completion of the tasks outlined in this Bulletin, the list of cases provided by DEEOIC has four columns added thereto with the headings, “Reviewed Per Bulletin,” “Action Taken,” “Date of Action,” and “Comments.”  The district offices are to complete these columns as work progresses on implementation of this Bulletin.  The updated spreadsheet is to be forwarded to Mr. Frank James, Special Assistant, DEEOIC, every two weeks commencing two weeks after the issue date of this Bulletin. 

 

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