EEOICPA BULLETIN NO. 12-02
Issue Date: June 19, 2012
Effective Date: June 19, 2012
Expiration Date: June 19, 2013
Subject: Implementing the National Institute for Occupational Safety and Health’s (NIOSH) August 2011 Report.
Background: The Department of Health and Human Services (HHS) has issued an updated report entitled, “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities.” In this report, NIOSH has designated revised dates of residual radioactive contamination present at certain Atomic Weapons Employer facilities. These changes may affect the period of covered employment for claims under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) that have undergone a radiation dose reconstruction. Accordingly, this Bulletin provides instructions to claims staff on the assessment of claims affected by the changes to facility residual radiation contamination timeframes.
References: 42 U.S.C. § 7384l(3)(B); 20 C.F.R. § 30.5(c)(2); EEOICPA Bulletin Nos. 05-02 and 07-13; FY 2005 Defense Authorization Act, Public Law 108-375; and the NIOSH October 17, 2011 document entitled, “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities.”
Purpose: To provide procedures for processing claims for which additional periods of residual radiation have been identified by NIOSH in their most recent report entitled, “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities”(hereafter, Residual Report).
Applicability: All staff.
1. This bulletin addresses claims previously denied, claims pending adjudication (including those at NIOSH), and claims yet to be submitted.
2. The DEEOIC will prepare a comprehensive list of cases applicable for review under this Bulletin. The comprehensive list will identify all claims with an employee who worked at facilities for which residual periods of employment have been added in the new Residual Report. Additionally, cases on the list will be limited to those containing a final decision denying an employee’s claimed radiogenic cancer, because of a negative Probability of Causation (PoC) calculation (PoC of less than 50%). The comprehensive list will be provided to the district offices and FAB under separate cover.
3. The district directors are to use their discretion in assigning staff to complete the tasks outlined in this item. This could include directing claims staff or the district office health physics (HP) coordinators to perform these actions. Once the DEEOIC district office receives the comprehensive list, staff is to identify cases located at the office. In some instances, staff is to be aware that cases identified on the list may have transferred locations from one office to another; as such, it may be necessary to alert the responsible office of the need to add the case to its own review list. Once the district office identifies a case for review, the responsible district office staff is to conduct a manual examination of the case record. In particular, the district office staff is to access the electronic version (on the NIOSH CD) of the most recent dose reconstruction for the employee. Once located, the district office staff is to e-mail the most recent electronic dose reconstruction report to the National Office HP staff for review. The Policy Branch will provide the National Office HP e-mail addresses associated with this requirement.
4. A DEEOIC National Office HP will review the dose reconstruction report and determine whether the period of residual radiation added in the 2011 Residual Report will require a rework of the dose reconstruction. Ultimately, the National Office HP will assess each dose reconstruction for all claims identified on the comprehensive list.
5. Once the National Office HP has completed an evaluation of the dose reconstruction report, he or she will advise, via an e-mail to the district office HP coordinators, whether a rework is necessary. If the HP decides that rework is not needed, he or she will prepare a memo and transmit it to the district office for placement in the file. The HP memo will provide a narrative explanation of the basis for finding that no further action is necessary.
Once advised that no rework is needed, district office staff are to indicate in ECS that no further action is necessary in conjunction with this Bulletin. The CE highlights the processed NIOSH path in ECS and clicks on the “View/Perform SEC Screening.” This will pull up the NIOSH screening window. The CE then checks the box next to “No Action Necessary,” enters the date of the memo, and selects the “No Action Necessary Reason” of “Rvwd under Bulletin 12-02, Implementing NIOSH’s August 2011 Report.”
If the HP determines a rework of a dose reconstruction is necessary, he or she will send an e-mail to the district office HP/NIOSH coordinators explaining that a rework is required because of a change in the residual contamination timeframe for a facility where the employee worked. Once the CE receives the HP notice of rework, he or she prepares an Amended NIOSH Referral Summary Document (ANRSD) and forwards it to the assigned NIOSH Public Health Advisor (PHA). The ANRSD should contain a note that the rework is necessary. The CE should ensure that all other necessary requirements for a rework referral to NIOSH is conducted in accordance with EEOICPA Procedure Manual Chapter 2-0900 and appropriate ECS rework procedures.
6. For those cases in which NIOSH undertakes a rework of the dose reconstruction, once the revised dose reconstruction is returned to the district office, the assigned CE calculates the new PoC. There are then two possible pathways:
1) the PoC remains below 50%; or
2)the PoC reaches 50% or more and the case becomes compensable.
For cases in which the PoC remains below 50%, the CE prepares a memo to the file documenting the review of the case based upon the Residual Report. The memo to file is to include a brief narrative explaining that a new dose reconstruction occurred, but that the revised PoC is still less than 50%. Finally, the memo should include a statement that given the outcome of the rework and recalculated POC, there is no further action necessary.
If the dose reconstruction results in a PoC of 50% or more, the CE is to initiate action to reopen the case. In the exercise of the DEEOIC Director’s discretion in the reopening process, the Director is delegating authority to the four District Directors (DD) and the Assistant District Directors (ADD), to sign Director’s Orders for reopening of all residual radiation related cases. This delegated authority is limited to reopening those cases that appear on the comprehensive list. A sample Director’s Order is attached for reference (Attachment 1). The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated. Once the district office issues a Director’s Order, it is responsible for any further development and issuance of a new, timely recommended decision.
7. For cases currently pending a final decision at the FAB with a less than 50% PoC, and are identified on the comprehensive list, the Hearing Representative/Claims Examiner (CE) is to remand the recommended decision to the district office. The Remand Order should direct the district office to send the dose reconstruction to the National Office HP who will determine if a rework is necessary as is explained in this directive.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
RACHEL P. LEITON
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, Resource Centers and District Office Mail & File Sections