Sample Hearing script for a hearing involving niosh dr issues

 

CONVENING THE HEARING

 

I.  OPENING, AUTHORITY, AND NARRATIVE

 

We will now open the record.  Today is _____________, and it is _________AM/PM.  My name is ____________ and I have been designated to conduct this hearing and to receive the objections of EMPLOYEE/CLAIMANT. (At this point indicate whether or not claimant is represented by counsel or other authorized representative).  This case is identified under claim number xxx-xx-xxxx and carries docket number xxxx-2008.

 

This hearing is convened under the Energy Employees Occupational Illness Compensation Program Act (I will make future references to it as the Act), and is governed by the provisions of Title 20, Section 30.314 of the Code of Federal Regulations.  These regulations provide claimants with the right to object to a recommended decision of a district office.  While this hearing is informal and not governed by rules of evidence, I will administer an oath or affirmation to every person providing testimony today.  I will first review the history of your claim as it appears in the written record.  You may then present testimony, argument, and any additional evidence addressing the merits of your claim.

 

On DATE OF FILING, you submitted an EE-(1 or 2)form to the NAME OF LOCATION district office claiming benefits under the Act.  On your EE-1/2 form, you claimed LIST FORM OF CANCER as the claimed condition related to employment under the Act.  You also submitted an EE-3 form indicating employment at LIST FACILITY, DATES OF EMPLOYMENT AND COVERED PERIOD FOR FACILITY.  You submitted evidence establishing your employment at NAME FACILITY and submitted BRIEFLY OUTLINE MEDICAL EVIDENCE establishing a cancer diagnosis.

 

Since YOUR/THE EMPLOYMENT did not qualify YOU/THE EMPLOYEE for membership in the special exposure cohort, the DISTRICT OFFICE forwarded your claim file information to the National Institute for Occupational Safety and Health (hereinafter referred to as NIOSH) for radiation dose reconstruction.  The district office undertook such an action pursuant to the instructions set out in the regulations governing the Act.  The Act and implementing regulations mandate that when a claimant with covered employment establishes a cancer diagnosis, NIOSH will prepare a radiation dose reconstruction.  The Department of Labor then applies a formula to the dose reconstruction in order to determine whether the employee’s cancer is as least as likely as not related to the covered employment.

 

NIOSH provided a report of the dose reconstruction and DISTRICT OFFICE found that there was a % probability that YOUR/THE EMPLOYEE’S cancer was causally related to employment under the Act.  As such, it was determined that the cancer was not found to be at least as likely as not related to employment under the Act.  Accordingly, the DISTRICT OFFICE issued its recommended decision on DATE OF RD recommending denial of your claim for benefits under the Act. 

 

II. STATEMENT OF OBJECTION AND NIOSH DISCLAIMER

 

On DATE OF OBJECTION, you filed your objection to the recommended decision and requested an oral hearing.  You have objected specifically that the NIOSH dose reconstruction failed to show enough exposure so the DO could find that YOUR/THE EMPLOYEE’S cancer was at least as likely as not related to YOUR/THE EMPLOYEE’S employment.

 

At this time I would like to say something about the NIOSH dose reconstruction.  NIOSH is given full authority under the regulations that govern the Act to conduct the dose reconstruction used by the Department of Labor to determine the probability that a cancer is related to employment.  I am, therefore, not in a position to discuss the way in which NIOSH goes about preparing the dose reconstruction report.  However, I can discuss issues of a factual nature regarding the information you provided to NIOSH, and challenges to the application of NIOSH’s methodology.  I am here to take your objections and enter them into the evidence of record, but I am not permitted to consider objections to NIOSH methodology at this time.

 

III. ADMINISTER OATH AND TAKE EVIDENCE

 

As stated previously, while the hearing is designated as an informal process, anyone giving testimony today is required to do so under Oath.  Mr./Ms. Claimant, will you please raise your hand?  (Administer Oath: “Do you swear/affirm to tell the truth in the testimony you are about to give in these proceedings today?”

 

Mr/Ms. Claimant, will you please, for the record, state your full name and address, and then proceed to give your testimony for the record.

 

AT THIS POINT, ALLOW THE CLAIMANT TO GIVE ORAL TESTIMONY AND ENTER SUCH DOCUMENTS AS THE CLAIMANT MAY DESIRE INTO THE RECORD AS EVIDENCE.  IDENTIFY AND MARK EACH AND EVERY EXHIBIT AND NUMBER EACH EXHIBIT SEQUENTIALLY. 

 

IV. CLOSING

 

Before closing, I will advise Mr./Ms. Claimant of what will transpire from this date forward.  These proceedings will be transcribed, and a copy of the transcript will be provided to you.  I will leave the record open for another 30 days for you to submit any additional evidence.  You also have 20 days from the date of mailing of the transcript to offer any corrections or comments on the transcript.  Any such additional evidence or comments will be included in the record and considered, along with your hearing testimony and all of the evidence already in the record, prior to issuance of the final decision.  If there is no other testimony to be given in this matter, I will close the hearing.  It is now _____A.M/P.M. and this hearing is closed.