EEOICPA BULLETIN NO.08-10                      

 

Issue Date: November 27, 2007

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Effective Date: March 29, 2007

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Expiration Date: November 27, 2008

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Subject: NIOSH’s Program Evaluation Plan for Construction Trade Workers.

 

Background: In 2004, the National Institute for Occupational Safety and Health (NIOSH) found that some Construction Trade Workers (CTWs) were “unmonitored during the early years of the complex” and that these workers “may have been exposed to external radiation and/or internal contamination above ambient and environmental levels without adequate monitoring.”  As such, on August 31, 2006, NIOSH issued ORAUT-OTIB-0052 to provide guidance on assessing CTWs with inadequate internal or external monitoring.  On March 29, 2007, NIOSH released OCAS-PEP-014, entitled “Evaluation of the Impact of OTIB-0052, Construction Trade Workers.”  The Program Evaluation Plan (PEP) outlines NIOSH’s plan for evaluating claims for CTWs with inadequate internal/external monitoring.A copy of the PEP is included as Attachment 1.  

 

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) is taking preliminary action on certain cases that may be impacted by NIOSH’s PEP. This Bulletin provides guidance on identifying and processing those cases potentially affected by the release of OCAS-PEP-014 that are currently in the adjudication process and do not have a final decision.  Further guidance will be forthcoming on the treatment of those cases with a final decision based on the results of NIOSH’s review of the dose reconstruction methodology involving Construction Trade Workers. 

 

References: OCAS-PEP-014, “Evaluation of the Impact of OTIB-0052, Construction Trade Workers,” viewed at: http://www.cdc.gov/niosh/ocas/pdfs/peps/oc-pep14-r0.pdf.

 

Purpose: To provide procedures for processing claims currently in the adjudication process and pending a recommended or final decision that may be potentially affected by the release of OCAS-PEP-014 for Construction Trade Workers.

 

Applicability: All staff.

 

Actions:

 

1. OCAS-PEP-014, “Evaluation of the Impact of OTIB-0052, Construction Trade Workers (CTW)” indicates that the changes provided in the Technical Information Bulletin (TIB) may result in a favorable adjustment in radiation dose.  Since these changes affect the Probability of Causation (POC) determination and the outcome of the claim, the previous dose reconstruction on certain cases for CTWs are no longer valid.  As such, certain cases with a less than 50% POC where subcontractor employment in the CTW field is verified should be returned to NIOSH for a new dose reconstruction.

 

Please note that a list of cases will not accompany this directive.  Therefore, while adjudicating cases, claims examiners (CE) must be vigilant to identify any case that could potentially be affected by OCAS-PEP-014 and are responsible for tracking the actions taken on a claim (see Action Item #7).

 

2. To determine whether the dose reconstruction is affected by the release of OCAS-PEP-014, the CE must first determine whether the employee is/was a construction trade worker.  To assist the CE in making this determination, the following lists of trades may be utilized as examples of job titles that are recognized in the construction field:

 

 

In utilizing SEM, the CE should select “Construction (all sites)” from the “Site” drop down menu and press “select.”  This will bring up a screen that allows a search for specific information related to construction.  Under Searches Specific to the Selected Site, there is category called “Labor Category” which allows the CE to identify labor categories specific to the construction field.  A search can be conducted by “Labor Category Information” and/or “Labor Category Alias.”  Both options should be utilized to assist in establishing construction trade work.

 

The lists of trades identified above are not all encompassing.  As such, it is not necessary for the CE to ensure that the employee’s position directly matches that of one of the titles listed in Attachment A of the OCAS-PEP-014 or the SEM, merely that the description of the employees’ position is one that can reasonably be considered a construction worker. 

 

If it is established that the employee worked in the construction trade field, the CE will then need to determine whether the employee had subcontractor employment.  The Department of Energy’s (DOE) List of Covered Facilities identifies prime operating contractors of DOE facilities. However, employment for a prime contractor does not qualify the claim for re-evaluation under OCAS-PEP-014.  Therefore, if the employer is not listed on DOE’s List of Covered Facilities found on the DOE website, then it will be assumed that the employee was a subcontractor, and the CE should proceed as outlined in this bulletin.

 

If it is determined that the employee did not perform duties in construction, or the employer is identified as a prime contractor, no further action is necessary.

 

3. For those cases that are currently in posture for a recommended decision to deny based on a less than 50% POC and where it is determined that the employee is/was a subcontractor and a CTW, the CE must determine whether ORAUT-OTIB-0052 was utilized by NIOSH in the dose reconstruction. The use of ORAUT-OTIB-0052 is important to note because it signifies that NIOSH performed the dose reconstruction in accordance with the changes described as part of OCAS-PEP-014.  To determine whether ORAUT-OTIB-0052 was utilized in the dose reconstruction, the CE must review

the “References” section of the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act.  If document ORAUT-OTIB-0052 is listed as a reference in the dose reconstruction report, no further action is required.

 

However, if document ORAUT-OTIB-0052 is not referenced in the dose reconstruction report, and the dose reconstruction was performed prior to the implementation of ORAUT-OTIB-0052 on August 31, 2006 (as determined by the “Calculation Performed by” date on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act), with a resulting POC of less than 50%, the CE is to return the case 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 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-PEP-014 and any other applicable changes.”  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 the OCAS-PEP-014.  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 date 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 must determine whether the claim is potentially affected by the CTW PEP.  If the recommended decision to deny is based on a less than 50% POC, the Hearing Representative/CE should determine whether the employee was a subcontractor and a CTW as described under Action Item 2.  If subcontractor employment is verified, the Hearing Representative/CE must then review the “References” section of the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act to determine whether ORAUT-OTIB-0052 was/was not utilized in the dose reconstruction process.

 

If ORAUT-OTIB-0052 was utilized by NIOSH in the dose reconstruction, no further action is necessary and the Hearing Representative/CE may proceed with a final decision.

 

If subcontractor employment in the CTW field is established, and document ORAUT-OTIB-0052 was not utilized by NIOSH, and the dose reconstruction was performed prior to August 31, 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 OCAS-PEP-014.

 

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 new radiation dose reconstruction.

 

On March 29, 2007, NIOSH issued OCAS-PEP-014, “Evaluation of the Impact of OTIB-0052, Construction Trade Workers.”  The changes outlined in OCAS-PEP-014 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-PEP-014, the prior dose reconstruction/Probability of Causation 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. For tracking purposes, the district offices will be provided a spreadsheet to maintain/update as these cases are identified.  The cases that will be tracked are those where subcontractor employment in the CTW field with a less than 50% POC are identified, regardless of whether ORAU-OTIB—05 was/was not utilized in the dose reconstruction.  The spreadsheet will include columns for the “Employee Name,” “Case File Number,” “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. 

 

8. If not already entered, the CE must update the Employment Classification Field in the Case Screen of ECMS by selecting "S" (a subcontractor at a DOE facility has been identified) from the DOE drop down menu.

 

9. If a claimant requests a reopening of his/her claim as a result of OCAS-PEP-014, the District Director should prepare a memorandum to the Director of DEEOIC and forward the case file to National Office for review.


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