EEOICPA BULLETIN NO.08-25                      

 

Issue Date: June 16, 2008

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Effective Date: June 16, 2008

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Expiration Date: June 16, 2009

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Subject:  NIOSH’s OCAS-PER-011, entitled “K-25 TBD and TIB Revisions.”

 

Background: On November 24, 2004, the National Institute for Occupational Safety and Health (NIOSH) issued the external section of the Technical Basis Document (TBD) for K-25 that contained a tabulation of the dose received by K-25 monitored workers to be used as co-worker dose for unmonitored workers.  Thereafter, on May 31, 2005, the Technical Information Bulletin (TIB) was modified to increase the external co-worker values to account for missed dose when conducting dose reconstructions.  Consequently, on September 26, 2007, NIOSH issued OCAS-PER-011, “K-25 TBD and TIB Revisions.”  A copy of OCAS-PER-011 is included as Attachment 1.

 

Since the changes resulting from OCAS-PER-011 may affect the outcome of the claim, the previous dose reconstructions for certain cases are no longer valid.  Consequently, a new radiation dose reconstruction is necessary.  The purpose of the Program Evaluation Report (PER) is to evaluate the effect of the revisions to the TBD and TIB on previously completed dose reconstructions.

 

This bulletin provides guidance on processing cases that are potentially affected by the release of OCAS-PER-011 where:

·        employment is verified at K-25,and

·        a dose reconstruction was performed between November 24, 2004 and May 21, 2005 using external co-worker data, or


·        a dose reconstruction was performed between May 21, 2005 and August 31, 2006 using external co-worker data and the employee is deemed a construction trade worker, and

·        the PoC resulted in less than 50%.

 

A list of cases that are potentially affected by the release of the PER identified above has been generated. The comprehensive list of cases will be distributed to the appropriate district offices under separate cover.

 

References: NIOSH document, OCAS-PER-011, “K-25 TBD and TIB Revisions,” approved on September 26, 2007 found at http://198.246.98.21/niosh/ocas/pdfs/pers/oc-per11-r0.pdf.

 

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-011.

 

Applicability: All staff. 

 

Actions:

 

1.  A claims examiner (CE) who receives a claim involving verified employment at K-25 should verify whether the case can be considered under the Special Exposure Cohort (SEC) established for the Oak Ridge Gaseous Diffusion Plant.  If the case does not qualify under the SEC, then the CE should proceed with reviewing the case as outlined below.

 

2. For those cases currently in posture for a recommended decision based on a dose reconstruction with verified employment at K-25, the CE must determine whether external co-worker data was used in the dose reconstruction.  If so, and the dose reconstruction was performed between November 24, 2004 and May 21, 2005 and the PoC resulted in less than 50%, the CE is to return those cases to NIOSH for a new dose reconstruction.  Similarly, if the dose reconstruction was performed between May 21, 2005 and August 31, 2006 using external co-worker data; and the employee is deemed a construction trade worker; and the PoC resulted in less than 50%, the CE is to return those cases to NIOSH for a new dose reconstruction as well. The “Calculations Performed by” date found on the most recent NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act on file is used to determine the date the dose reconstruction was performed.

 

To determine whether external co-worker data was used in the dose reconstruction, the CE must review the most recent “NIOSH Report of Dose Reconstruction under the EEOICPA” on file.  While the CE should review the report in its entirety, the sections most likely to indicate whether external co-worker data was used in the dose reconstruction are the “Information Used” or “External Dose” sections of the report.  In these sections of the report, NIOSH will likely indicate that the employee’s external dosimetry records were not available and that the external dose assigned was based on co-worker data or that individual dosimeter dose was not available and that the dosimeter results for “employees who were monitored” was used. 

 

To assist the CE in determining whether the employee is deemed a construction trade worker, 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 a section 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 found in Attachment 2 or the SEM, merely that the description of the employees’ position is one that can reasonably be considered a construction worker. 

 

If the case does not meet the parameters for a new dose reconstruction, no action is necessary and the CE enters the “NA” (No Action Necessary) status code and appropriate reason code into ECMS B as instructed in Action Item #10.

 

3.  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-011 and any other changes.”  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 3.

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 enters status code “NI” (Sent to NIOSH) into ECMS B and selects the “PEP” (Rework based on Program Evaluation Plan) reason code.

 

The “NI” status code should only be entered in ECMS E after toxic exposure development is complete and the CE cannot accept causation.  In that case the CE creates a memorandum to file stating that toxic exposure development is complete. The CE then enters status code “NI-PEP” into ECMS E with the date of the memorandum as the status effective date.   

 

(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 enters status code “NR” (Received from NIOSH) into ECMS B and selects the “DR” (Dose Reconstruction Received-POC) reason code. The status effective date is the date the dose reconstruction is date stamped into the district office. If the CE had previously entered “NI” in ECMS E, the CE also enters codes “NR” and “DR” into ECMS E. If the case is an E/B case, the CE enters the Probability of Causation into ECMS B and ECMS E regardless of whether an “NI” status code had previously been entered.

 

4. 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 K-25 that have a recommended decision to deny based on a PoC of less than 50%.  If the dose reconstruction was performed between November 24, 2004 and May 21, 2005 using external co-worker data, or

between May 21, 2005 and August 31, 2006 using external co-worker data and the employee is deemed a construction trade worker (see Action Item #2 for guidance to make this determination), 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-011. 

 

The Hearing Representative/CE enters status code “F7” (FAB Remand) in ECMS B/E (as appropriate) with an “OTH” (No D.O. Error – Other) reason code.  The status effective date will be the date of the FAB remand.

 

If the case does not meet the parameters for a new dose reconstruction, no action is necessary and the Hearing Representative/CE enters the “NA” (No Action Necessary) status code and appropriate reason code into ECMS B as instructed in Action Item #10.

 

5. 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 September 26, 2007, NIOSH issued OCAS-PER-011, entitled “K-25 TBD and TIB Revisions.”  The changes

outlined in OCAS-PER-011 for K-25 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-011, 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.

 

6. 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 K-25 TBD and TIB revisions.  The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated. If the District Director is unsure of whether the delegated authority to reopen applies, the case should be referred to the National Office.

 

7. For those cases that have a final decision to deny based on a less than 50% PoC, where employment is verified at K-25 and the dose reconstruction was performed between November 24, 2004 and May 21, 2005 using external co-worker data, or between May 21, 2005 and August 31, 2006 using external co-worker data and the employee is deemed a construction trade worker (see Action Item #2 for guidance to make this determination), 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-011.  

 

The District Director enters the status code “MN” (NO Initiates Review for Reopening) into ECMS B with a status effective date as the effective date of this bulletin.  If the District Director is also reopening Part E, the “MN” code is also input in ECMS E.

 

For all reopenings per this bulletin, upon completing the Director’s Order to reopen the claim, the District Director enters status code “MD” (Claim Reopened – File Returned to DO) into ECMS B 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.  If the Director’s Order reopens the Part E claim, the “MD” code is also input in ECMS E.

 

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.

 

If the case does not meet the parameters for a new dose reconstruction, no action is necessary and the CE enters the “NA” (No Action Necessary) status code and appropriate reason code into ECMS B as instructed in Action Item #10.

 

8. It is possible that during the course of the review of these cases, NIOSH may supply the National Office with individual Program Evaluation Reports (PER) or Individual Case Evaluations (ICE) for cases (or a PER that represents a population of cases) potentially affected by this 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 outlined in the PER affects the outcome of the claim and a return to NIOSH for a new dose reconstruction is necessary, or

·        there are multiple changes that affect the dose reconstruction and a return to NIOSH for a new dose reconstruction is necessary, or

·        the change outlined in the PER does not affect the dose reconstruction, nor do any other changes affect the dose reconstruction and a return to NIOSH is not necessary. 

 

If NIOSH provides DEEOIC with an individual case PER or ICE, the CE enters the code “LNR” (Letter/Response Received from NIOSH) and “825” reason code from the reason code drop down menu into ECMS B.  The claim status date of the code is the date the response is received in the appropriate office, which is the date of the date stamp. If the “NI” status code had previously been entered in ECMS E, the CE also enters codes “LNR” and “825” into ECMS E.

 

If the individual case PER or ICE indicates that the case should “Return to NIOSH” for a new dose reconstruction, the District Director issues a Director’s Order (if appropriate) reopening the case. Upon reopening, the district office should refer the case to NIOSH for a new dose reconstruction as instructed in this bulletin.

 

If the individual case PER or ICE indicates that the case was “Evaluated with No Change” but does not include a dispositive statement, the District Director issues a Director’s Order referring the case to NIOSH for a new dose reconstruction. In order to be dispositive, NIOSH must indicate that they have evaluated the case against this PER and any other changes, and determined that a new dose reconstruction is not necessary. If the individual case PER or ICE is dispositive, then no action is necessary and the CE enters the “NA” status code and appropriate reason code into ECMS B as instructed in Action Item #10. 

 

Individual case PERs or ICEs received in the National Office, will be forwarded to the appropriate district office for inclusion in the case file. 

 

9. If a claimant requests a reopening of his/her claim as a result of OCAS-PER-011, 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 meets the parameters for reopening as outlined in Action Item #7. 

 

Upon receipt of the claimant’s request for reopening, the District Director enters status “MC” (Claimant Requests Reopening) in ECMS.  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. Following the input of the "MC" status code, the District Director should issue a Director’s Order reopening the claim following the procedures as outlined in this Bulletin.

 

For all claimant requests for reopening as a result of the K-25 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. The District Director enters status code “MC” (Claimant Requests Reopening) and “MI” (District Director Requests Reopening) in ECMS B/E as appropriate to indicate that the file is being forwarded to National Office for review under the reopening process. The status effective date for the “MI” code is the date of the District Director’s memo to the Director of DEEOIC.

 

10. All cases on the DEEOIC generated list must be reviewed to determine if it qualifies for a return to NIOSH for a new dose reconstruction. If after review, the adjudicator determines that a case on the list does not require any action to be taken, the CE/FAB HR must write a brief memo to the file that explains the case was reviewed under this bulletin, no additional action is necessary, and why. A case classified as not requiring any action is a case that does not meet the criteria for a return to NIOSH, the case is already at NIOSH, or NIOSH has determined that a dose reconstruction is not necessary.

 

The CE must then enter status code “NA” (No Action Necessary) into ECMS B and select the appropriate reason code from the reason code drop down list. The “NA” coding is specifically tied to the review list generated by DEEOIC and the “NA” code is restricted to ECMS B only because the review list is derived from Part B data. For cases that were reviewed under this bulletin and require no additional action, the reason code that must be selected is “25P(Reviewed under Bulletin 08-25).  Even if the case is an E/B case, the NA-25P must be coded into ECMS B only.  The status effective date of the “NA” code is the date of the memo to the file stating review is complete and the CE has determined there is no further action necessary.

 

Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-25P” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.

 

11. In carrying out the policy outlined in this Bulletin, personnel must understand that the comprehensive list not only provides the "to do" list of cases requiring attention, but it also serves as a means of tracking progress. As part of tracking progress, the list becomes the "pending" list and it is the goal to successfully and accurately review cases and enter appropriate ECMS coding which will result in “the case being removed from the list” (in other words, will result in an indicator for reporting purposes showing that the initial review was completed and/or that subsequent action was taken).  ECMS coding is at the claim level and so the failure to input a code that will remove the case from the pending list on even one claim associated with a case, will result in the case still showing up as still pending review or action. In terms of ECMS coding, it is crucial to be thorough and precise. The most obvious example of this is the use of the “C2” (administrative closure) code.  “C2” will not remove a case from the pending list; the "NA" code must be entered for each claim to which it applies after input of the “C2” code.  In terms of codes that will remove cases off the pending list, any “NI” code entered after the bulletin effective date will remove it and proper use of the “NA” code  will remove it from the pending list.  These are not the only codes that will remove cases from the pending list, but rather are provided as examples to show their importance. Any additional questions regarding proper ECMS coding must be directed to the Policy Branch.  

 

12. The operational plan goal for the lists of cases identified for review as part of a new SEC class, PEP, or PER is to complete the Part B recommended decision, send a letter to NIOSH, response received from NIOSH, return to NIOSH, or determine that no action is necessary 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.

 

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