EEOICPA BULLETIN NO. 07-19
Issue Date: May 16, 2007
Effective Date: March 29, 2007
Expiration Date: May 16, 2008
Subject: Processing Cases Affected by the National Institute for Occupational Safety and Health’s (NIOSH) “Program Evaluation Plan: Evaluation of Highly Insoluble Plutonium Compounds.”
Background: On March 29, 2007, NIOSH released OCAS-PEP-012 Rev-00, entitled “Program Evaluation Plan (PEP): Evaluation of Highly Insoluble Plutonium Compounds.” The PEP outlines NIOSH’s plan for evaluating claims with the potential for exposure to highly insoluble forms of plutonium (Type Super S). In its PEP, NIOSH identified several facilities “to be considered” for potential exposure to Type Super S plutonium. It is NIOSH’s assessment that the existence of the highly insoluble plutonium compound at these sites could potentially affect the outcome of certain cases with a dose reconstruction. A list of the affected sites is included as Attachment 1.
In response to the OCAS-PEP-012, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a letter to NIOSH on May 1, 2007. DEEOIC requested that NIOSH identify and provide individual signed letters for each case affected by the PEP. A copy of DEEOIC’s letter is included as Attachment 2. In the interim, DEEOIC is taking preliminary action on certain cases that may be impacted by NIOSH’s PEP. This Bulletin provides guidance on processing those cases affected by the PEP that are currently in the adjudication process and do not have a final decision. Further guidance will be forthcoming on the treatment of those cases with a final decision based on the results of NIOSH’s dose reconstruction methodology applied prior to February 6, 2007.
References: NIOSH document, OCAS-PEP-012 Rev-00, “Program Evaluation Plan: Evaluation of Highly Insoluble Plutonium Compounds,” approved on March 29, 2007 viewed at http://www.cdc.gov/niosh/ocas/pdfs/peps/oc-pep12-r0.pdf.
Purpose: To provide procedures for processing claims currently in the adjudication process that may be affected by NIOSH’s OCAS-PEP-012.
Applicability: All staff.
1. In its Program Evaluation Plan, Document Number OCAS-PEP-012, NIOSH determined that highly insoluble forms of plutonium were generated during the Rocky Flats fires. As such, methods for assessing the potential for exposure to highly insoluble forms of plutonium at the Rocky Flats Plant, and at other sites that may have worked with this material, is necessary.
The OCAS-PEP-012 states that “due to the increased doses assigned to workers exposed to Type Super S plutonium, previously completed claims that were assigned plutonium doses at sites where this material is potentially available for exposure need to be reexamined to determine the impact (if any) on the dose assessment.” (NIOSH will provide the results of the assessment in a Program Evaluation Report.)
This PEP affects those cases with a dose reconstruction performed prior to February 6, 2007, that resulted in a <50% Probability of Causation (POC) with verified employment at any one of the sites listed in Attachment 1, as identified by NIOSH in Attachment A of the OCAS-PEP-012.
2. For those cases currently in posture for a recommended decision with employment identified at one of the sites listed in NIOSH’s OCAS-PEP-012, Attachment A “Consider Super S,” and where a dose reconstruction was performed prior to February 6, 2007 and resulted in a <50% POC, the district office/CE2 Unit is to return those cases to NIOSH for a rework of the dose reconstruction.
3. When referring these cases to NIOSH for a dose reconstruction rework, a request to the National Office Health Physicist is not required. Instead, the Claims Examiner (CE) should complete an amended NIOSH Referral Summary Document (ANRSD) and forward the ANRSD as an electronic attachment via email to the Public Health Advisor (PHA) assigned to the district office at NIOSH. The CE should also:
a. Send a letter to the claimant explaining that the case has been returned to NIOSH for a rework of the dose reconstruction as a result of a change in the dose reconstruction methodology as outlined in the OCAS-PEP-012. 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 along 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 should code the case as “NI” (Sent to NIOSH) and select the “PEP” (Rework based on Program Evaluation Plan) reason code.
Upon receipt of the revised dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision. The CE should code the case as “NR” (Received from NIOSH) and select the “DR” (Dose Reconstruction Received-POC) reason code.
4. For cases currently pending a final decision at the FAB, the Hearing Representative/CE is to identify those cases with a recommended decision to deny based on a POC <50% and verified employment at one of the sites as listed in Item 1 above. If the dose reconstruction was conducted prior to February 6, 2007, 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 rework as a result of the PEP.
5. The following statement should be included in the Remand Order regarding the return of the case to NIOSH for a rework of the radiation dose reconstruction.
On March 29, 2007, NIOSH issued OCAS PEP-012 entitled, “Program Evaluation Plan: Evaluation of Highly Insoluble Plutonium Compounds.” The PEP provides NIOSH’s plan for reevaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites. It is NIOSH’s determination that the existence of the highly insoluble plutonium compound at the (list facility) should be considered for Type Super S plutonium in the dose reconstruction. This change went into effect on February 6, 2007.
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 notification by NIOSH that “previously completed claims that were assigned plutonium doses at sites where this material is potentially available for exposure need to be reexamined to determine the impact (if any) on the dose assessment,” 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.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
PETER M. TURCIC
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, and District Office Mail & File Sections