EEOICPA BULLETIN NO.08-28            

 

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: OCAS-PER-026, Pantex and OCAS-PER-028, Pinellas Program Evaluation Reports.

 

Background: On October 31, 2007, the National Institute for Occupational Safety and Health (NIOSH) issued two Program Evaluation Reports (PER) addressing Technical Basis Document (TBD) revisions.  OCAS-PER-026, entitled “Pantex TBD Revision – ORAUT-TKBS-0013” addresses changes to the Occupational Medical Dose section of the TBD.  The effect of this change increases the assigned x-ray dose for several target organs when conducting the dose reconstruction.

 

OCAS-PER-028, entitled “Pinellas TBD Revision” addresses changes to the TBD because “the language in the TBD could be misinterpreted to exclude missed photon dose from monitored workers.”  The report states that “it is possible that missed photon dose was not included for some monitored workers when it should have been for dose reconstructions that were completed between August 3, 2006 and November 8, 2006.”

 

NIOSH issued the PERs to document the changes to the TBDs for these particular sites and their potential effect on previously completed dose reconstructions.  A copy of each PER is included as Attachment 1.

 

NIOSH provided the Division of Energy Employees Occupational Illness Compensation (DEEOIC) with a list of cases that are potentially affected by the release of the PERs identified above.  However, NIOSH has not indicated


which cases on the lists need a new dose reconstruction.  As such, this bulletin provides guidance on handling those cases that have been identified as potentially affected by the release of OCAS-PER-026 for Pantex and OCAS-PER-028 for Pinellas.

 

References: OCAS-PER-26, “Pantex TBD Revision – ORAUT-TKBS-0013,” viewed at: http://198.246.98.21/niosh/ocas/pdfs/pers/oc-per-026-r0.pdf; OCAS-PER-028, “Pinellas TBD Revision,” viewed at: http://198.246.98.21/niosh/ocas/pdfs/pers/oc-per-028-r0.pdf.

 

Purpose: To provide procedures for processing claims that are potentially affected by the release of NIOSH’s Program Evaluation Reports for Pantex and Pinellas.

 

Applicability: All staff.

 

Actions:

 

1. For those cases on the list that are currently in posture for a recommended decision to deny based on a less than 50% POC, where either:

 

 

the CE is to return the case to NIOSH for a new dose reconstruction.  To determine when the dose reconstruction was conducted, the CE should use the date referenced in the “Calculations performed by” date found on the most recent NIOSH Report of Dose Reconstruction under the EEOICPA on file.

 

No action is required on cases with a dose reconstruction that was conducted after February 1, 2007 for Pantex. Similarly, no action is required on cases with a dose reconstruction conducted before August 3, 2006 or after November 8, 2006 for Pinellas.  Furthermore, no action is necessary on any case that is already at NIOSH for a dose reconstruction.  For any case meeting the “no action”


criteria, the CE should code ECMS and create a memorandum to the file as instructed in Action #8.

 

2. 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-026/OCAS-PER-028] 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 as outlined in either OCAS-PER-026 for Pantex or OCAS-PER-028 for Pinellas.  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 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 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.

 

3. For cases currently pending at the FAB for a final decision, the Hearing Representative/CE must determine whether the case is affected by the release of OCAS-PER-026 for Pantex or OCAS-PER-028 for Pinellas. If the recommended decision is to deny based on a less than 50% POC, and meets one of the two bulleted criteria listed in Action Item #1, the Hearing Representative/CE should remand the recommended decision to the district office in the usual manner.  The Remand Order directs the district office to refer the case back to NIOSH for a new dose reconstruction as a result of the release of OCAS-PER-026 for Pantex or OCAS-PER-028 for Pinellas, as appropriate, and any other changes affecting the dose reconstruction methodology.

 

The Hearing Representative/CE should code the case as “F7” (FAB Remand) in ECMS B/E (as appropriate) with an “OTH” (No DO 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 #8.

 

4. 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 October 31, 2007, NIOSH issued [OCAS-PER-026, “Pantex TBD Revision – ORAUT-TKBS-0013/OCAS-PER-028, “Pinellas TBD Revision”].  The changes outlined in


[OCAS-PER-026/OCAS-PER-028] 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-026/OCAS-PER-028], 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 the claim, it is necessary for the claim to undergo a new dose reconstruction by NIOSH.

 

5. 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 OCAS-PER-026 for Pantex and OCAS-PER-028 for Pinellas. 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.

 

6. For each case that has a final decision to deny based on a less than 50% POC, the CE must determine whether the claim is potentially affected by the PER released for Pantex or Pinellas.  If the case meets either of the bulleted criteria listed in Action Item #1, the responsible District Director issues a Director’s Order vacating the final decision and reopening the claim.  The Director’s Order states 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-026 for Pantex or OCAS-PER-028 for Pinellas.  

 

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.

 

Once the case has been reopened, the district office should proceed with a referral to NIOSH for a new dose reconstruction as instructed in Action Item #2.

 

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 #8.

 

7. 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 “828” 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 “828” 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 #8. 

 

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

 

8. Each case 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 “28P” (Reviewed under Bulletin 08-28).  Even if the case is an E/B case, the NA-28P 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-28P” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.

 

9. 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.  

 

10. If a claimant requests a reopening of his/her claim as a result of OCAS-PER-026 or OCAS-PER-028, 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 #1. 

 

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 PER for Pantex or Pinellas 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.

 

11. 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, receive a response 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

 

 

Distribution List No. 1: All DEEOIC Employees

Distribution List No. 7: Resource Centers