EEOICPA BULLETIN NO.08-31                      

 

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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Note: This bulletin replaces EEOICPA Bulletin No. 08-10, NIOSH’s Program Evaluation Plan for Construction Trade Workers (CTW). This bulletin follows the release of NIOSH’s Program Evaluation Report which provides further clarification on assessing cases for CTWs with inadequate internal or external monitoring.

 

Subject: OCAS-PER-014, Program Evaluation Report 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) outlined NIOSH’s plan for identifying and evaluating claims for CTWs with inadequate internal/external monitoring.


On November 27, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) released EEOICPA Bulletin No. 08-10, NIOSH’s Program Evaluation Plan for Construction Trade Workers. EEOICPA Bulletin 08-10 provided guidance on handling those cases that are potentially affected by NIOSH’s PEP that are in the adjudication process and have no final decision. The guidance provided in the Bulletin outlined the process that Claims Examiners (CE) should undertake to identify whether a case involving a CTW should be returned to NIOSH for a new dose reconstruction.  

 

On November 28, 2007, NIOSH released OCAS-PER-014, entitled “Construction Trade Workers.” The Program Evaluation Report (PER) provides the results of the NIOSH’s evaluation and further defines the parameters used for identifying potentially affected cases. A copy of OCAS-PER-014 is included as Attachment 1.

 

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

 

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; OCAS-PER-014, “Construction Trade Workers,” viewed at: http://198.246.98.21/niosh/ocas/pdfs/pers/oc-per14-r0.pdf.

 

Purpose: To provide procedures for processing claims that are potentially affected by the release of OCAS-PER-014 for Construction Trade Workers.

 

Applicability: All staff.

 

Actions:

 

1. For each case identified on the list of cases, the CE must determine whether the dose reconstruction is affected by the release of OCAS-PER-014.  To do so, the CE must first confirm that the employee is/was employed at one of the following facilities:


 

Hanford

Portsmouth Gaseous Diffusion Plant

Pacific Northwest National Laboratory

Savannah River Site

Kansas City Plant

Weldon Springs Plant

Los Alamos National Laboratory

Oak Ridge National Laboratory (X-10)

Pantex Plant

Y-12 Plant

 

 

If employment at one of the facilities listed above is not found, no further action is necessary. The CE codes ECMS as instructed in Action Item #12.

 

If the employee is/was employed at one of the facilities listed above, the CE must then determine whether the employee is/was a subcontractor and a construction trade worker.

 

2. To assist the CE in determining whether an employee is/was 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 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 that the employee’s position directly matches that of one of the titles listed in Attachment A of the OCAS-PER-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 was a subcontractor.  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-PER-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 to the next step to determine whether external co-worker dose was assigned and/or ORAUT-OTIB-0052 was/was not used in the dose reconstruction.

 

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. The CE codes ECMS as instructed in Action Item #12.

 

3. Once it is established that the employee is/was employed at one of the facilities identified in this bulletin and the employee is/was a subcontractor and CTW, the CE must determine whether the dose reconstruction was conducted prior to August 31, 2006 (as determined by the “Calculations Performed by” date found on the most recent NIOSH Report of Dose Reconstruction under the EEOICPA on file). Since ORAUT-OTIB-0052 was implemented on August 31, 2006, any case with a dose reconstruction conducted after this date, will not need further action. The CE codes ECMS as instructed in Action Item #12.

 

However, if the dose reconstruction was conducted prior to August 31, 2006, the CE must then determine whether external co-worker dose was assigned in the dose reconstruction.

 

4. To determine whether external co-worker dose was assigned to the dose reconstruction, the CE must carefully review the most recent NIOSH Report of Dose Reconstruction under the EEOICPA on file. To do this, look at the external dose section of the dose reconstruction report for the term “co-worker dose.” If there is no indication that external co-worker dose was assigned, then there is no OTIB-0052 adjustment to be made and the claim is not affected by the release of OCAS-PER-014. Therefore, no further action is necessary and the CE codes ECMS as instructed under Action Item #12.

 

If external co-worker dose was used in the dose reconstruction, the CE must further verify 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-PER-014.  To determine whether ORAUT-OTIB-0052 was utilized in the dose reconstruction, the CE must review the “References” section of the most recent NIOSH Report of Dose Reconstruction under the EEOICPA on file.  If document ORAUT-OTIB-0052 is listed as a reference in the dose reconstruction report, OCAS-PER-014 does not affect the dose reconstruction and no further action is required. The CE codes ECMS as instructed under Action #12.

 

If NIOSH did not use ORAUT-OTIB-0052 in the dose reconstruction, then the CE proceeds with the instructions for handling the claim as outlined in this bulletin.

 

5. 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:

·        employment is verified at one of the facilities found in Action #2, and

·        it is determined that the employee is/was a subcontractor and a CTW, and

·        the dose reconstruction was conducted prior to August 31, 2006, and

·        External co-worker dose was assigned but NIOSH did not use ORAUT-OTIB-0052 in the dose reconstruction

 

the CE is to return the case to NIOSH for a new dose reconstruction.

  

6. 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-014 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 the OCAS-PER-014.  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.

 

7. 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 PER.  If the recommended decision to deny is based on a less than 50% POC, the Hearing Representative/CE should follow Action Items 1-4 to determine whether a new dose reconstruction is necessary.   

 

If ORAUT-OTIB-0052 was utilized in the dose reconstruction, the Representative/CE codes ECMS as instructed in Action #12 and proceeds with a final decision.

 

However, if document ORAUT-OTIB-0052 was not utilized by NIOSH, the recommended decision should be remanded 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 OCAS-PER-014.

 

The Hearing Representative/CE codes 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 #12.

 

8. 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 November 28, 2007, NIOSH issued OCAS-PER-014, “Construction Trade Workers.”  The changes outlined in OCAS-PER-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 the claim, it is necessary for the claim to undergo a new dose reconstruction by NIOSH.

 

9. In the exercise of the Director’s discretion over the reopening process, the Director is delegating limited authority to the District Directors to sign Director’s Orders for reopening.  This delegated authority is limited to reopenings for those cases that are affected by OCAS-PER-014 for CTWs. 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.

 

10. For those cases that have a final decision to deny based on a less than 50% POC, the CE must determine whether the claim is potentially affected by the CTW PER.  The CE must follow Action Items 1-4 to determine whether a new dose reconstruction is necessary. If ORAUT-OTIB-0052 was utilized in the dose reconstruction, no further action is necessary. The CE codes ECMS as instructed in Action Item #12.

 

However, if ORAUT-OTIB-0052 was not utilized in the dose reconstruction, 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-014.  

 

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 #6.

 

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 #12.

 

11. 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 “831” 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 “831” 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 refers 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 #12. 

 

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

 

12. 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 “31P”(Reviewed under Bulletin 08-31).  Even if the case is an E/B case, the NA-31P 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-31P” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.

 

13. For those cases where subcontractor employment is established, and 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.

 

14. If a claimant requests a reopening of his/her claim as a result of OCAS-PER-014, 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 Items #1-4. 

 

Upon receipt of the claimant’s request for reopening, the District Office/FAB enters status code “MC” (Claimant Requests Reopening) in ECMS B.  If it is an EB case where the potential reopening affects Part E, the “MC” code must also be entered into ECMS E.  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 cases with multiple claimants, this code is only entered in the claim status history for the claimant(s) who submitted the request.  (This is the only code related to Director’s Orders that works like this.  All other Director’s Order codes are coded for all the active claimants.)

 

Once a determination is made by the District Director to reopen the case, the District Director enters the “MD” (Claim reopened, file returned to District Office) status code into ECMS B.  If it is an EB case where the reopening request is applicable to Part E, the “MD” code must also be entered into ECMS E.  The status effective date of the “MD” code is the date of the Director’s Order.  These codes have typically been used in the National Office, however their use has been delegated to the District Director in certain circumstances, such as the review of cases under OCAS-PER-011.

 

For all claimant requests for reopening that do not meet the parameters for reopening as outlined in this Bulletin, or where the District Director is unsure of whether the delegated authority applies, the case should be referred to the National Office.  When the case is referred to the National Office, the District Director enters the “MI” (District Director requests reopening) status code into ECMS B to indicate that the file is being forwarded to National Office for review under the reopening process. If it is an E/B case where the potential reopening affects Part E, the “MI” code must also be entered into ECMS E.   A cover memo outlining the DD concerns must be submitted.  The status effective date is the date of the DD’s memo to the Director of DEEOIC.

 

15. 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.  

 

16. 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, letter 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

 

 

 

Distribution List No. 1: All DEEOIC Employees

Distribution List No. 7: Resource Centers