EEOICPA BULLETIN NO.07-27
Issue Date: August 8, 2007
Effective Date: August 7, 2007
Expiration Date: August 8, 2007
Subject: Supplemental Guidance on Processing Cases Affected by OCAS-PER-012, entitled “Evaluation of Highly Insoluble Plutonium Compounds.”
Background: On May 16, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued EEOICPA Bulletin 07-19, Processing Cases Affected by the National Institute for Occupational Safety and Health’s (NIOSH) “Program Evaluation Plan (PEP): Evaluation of Highly Insoluble Plutonium Compounds.” EEOICPA Bulletin 07-19 provided guidance on handling those cases affected by NIOSH’s PEP that are in the adjudication process and have no final decision. The guidance was necessary because NIOSH determined that the existence of highly insoluble forms of plutonium compounds at certain sites could potentially affect the outcome of certain cases with a dose reconstruction. As such, it was necessary for certain cases in which the potential for exposure to Type Super S plutonium existed to be returned to NIOSH for a new dose reconstruction as a result of the PEP.
On August 7, 2007, NIOSH released OCAS-PER-012, “Evaluation of Highly Insoluble Plutonium Compounds.” The Program Evaluation Report (PER) provides NIOSH’s findings on the effect of type Super S plutonium on certain cases with a dose reconstruction.
NIOSH provided DEEOIC with a list of cases that had previously been denied with a Probability of Causation (POC) of less than 50% and required reevaluation. The purpose of this Bulletin is to provide procedures for reopening those cases specifically identified by NIOSH as needing reevaluation. In addition, procedures are provided for all remaining cases with a final decision to deny based on a less than 50% POC, a dose reconstruction performed prior to February 6, 2007, and employment verified at one of the sites listed in the OCAS-PER-012.
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; OCAS-PER-012, “Evaluation of Highly Insoluble Plutonium Compounds.”
Purpose: To provide procedures for processing claims with a final decision to deny that may be affected by NIOSH’s OCAS-PER-012.
Applicability: All staff.
1. The OCAS-PER-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 identified cases with a dose reconstruction prior to February 6, 2007, that resulted in a less than 50% POC with verified employment at any one of the sites listed in Attachment 1, as identified by NIOSH in Attachment A of the OCAS-PER-012. NIOSH provided the DEEOIC with a list of those cases that need to be returned to NIOSH because of the PER. The NIOSH list will be sorted by district office and provided to the appropriate district offices under separate cover. (On May 30, 2007, a list of cases that had no final decision was distributed via email to the appropriate District Offices and Final Adjudication Branch to process in accordance with EEOICPA Bulletin No. 07-19.)
2. 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 the PER established for exposure to highly insoluble forms of plutonium. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.
3. For those cases on the “return” list provided by NIOSH that have a final decision to deny with employment identified at one of the sites listed in NIOSH’s OCAS-PER-012, Attachment A “Consider Super S,” (Attachment 1) and where a dose reconstruction was performed prior to February 6, 2007 (as determined by the “Calculations Performed by” date found on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act)and resulted in a less than 50% POC, the responsible District Director should issue a Director’s Order vacating the final decision and reopening the claim. The Director’s Order should state 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 rework of the dose reconstruction is necessary based on guidance provided in OCAS-PER-012. A sample Director’s Order is included as Attachment 2. The District Director should code the case as “MN” (NO Initiates Review for Reopening) with a status effective date as the effective date of this bulletin.
Upon reopening the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) 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.
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.
4. Once the claim has been reopened, the responsible CE is to refer the case to NIOSH for a new dose reconstruction. For cases affected by this bulletin, 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 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 OCAS-PER-012 and any other applicable changes.” 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-PER-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. (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 be updated once it is calculated.)
Upon receipt of the new 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. The status effective date will be the date the dose reconstruction is date-stamped into the District Office. The POC should be updated in ECMS based on the new dose reconstruction.
5. A separate list is being provided of cases that are not on the NIOSH list of cases requiring reopening, but appear to be affected by OCAS-PER-012. This list is being provided under separate cover. The responsible CE should review each case on the list and confirm that the case meets the parameters for the PER, i.e. Super S site, POC <50%, DR signed prior to February 6, 2007. Note that there will be cases signed after February 6, 2007 on the list because we do not capture the OCAS sign date in ECMS. Once all three parameters are determined to have been met, the CE sends a letter to the PHA assigned to the district office at NIOSH inquiring as to the applicability of OCAS-PER-012 (see Attachment 4), and a letter to the claimant explaining our action (see Attachment 5). Once NIOSH responds, the DO proceeds to reopen the case if appropriate.
6. 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 Evaluation (ICE) forms for cases (or a PER that represents a population of cases) potentially affected by the PEP. 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 an individual PER/ICE is received indicating that a new dose reconstruction is required, a copy of the PER/ICE should be placed in the file and the case should be reopened/referred to NIOSH (if not already at NIOSH) for a new dose reconstruction following procedures as outlined in this bulletin.
If prior to sending the letters as described in Action Item 5, we have an individual PER/ICE that says the dose reconstruction is not affected by the PER, then the ICE/PER is to be placed in the file and no further action is necessary.
NOTE: A PER/ICE cannot be used in lieu of a dose reconstruction after a reopening is issued. A new dose reconstruction must be received and the new POC must be entered in ECMS.
If an individual PER or ICE is received in the National Office, it will be forwarded to the appropriate district office for inclusion in the case file.
7. If a claimant requests a reopening of his/her claim as a result of the PER for Super S, regardless of whether the case is identified by NIOSH or DEEOIC, the case file must be evaluated to determine whether or not the claim warrants a reopening. Simply identifying OCAS-PER-012 is not considered new evidence and is not sufficient to warrant a reopening. A reopening should be granted only if the evidence of file supports verified employment at any one of the listed sites in Attachment 1 and the dose reconstruction was performed prior to February 6, 2007 and resulted in a less than 50% POC, and there is no individual PER/ICE stating that the claim is not affected by the changes. If these requirements are met, the District Director should issue a Director’s Order reopening the claim following the procedures as outlined in this Bulletin.
Upon receipt of the claimant’s requests for reopening, the District Director should code the case as “MC” (Claimant Requests Reopening). 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 all claimant requests for reopening that do not meet the criteria for reopening, the District Director should prepare a memorandum to the Director of DEEOIC and forward the case file to National Office for review.
8. For all cases with no final decision, where employment is verified at one of the sites as listed in NIOSH’s OCAS-PER-012, Attachment A “Consider Super S,” and a dose reconstruction was performed prior to February 6, 2007 resulting in a less than 50% POC, the CE should follow guidance as outlined in EEOICPA Bulletin 07-19.
9. When reviewing cases under this Bulletin, CEs must keep in mind other changes that might affect the cases and take the action that is appropriate under the circumstances. For example, if a case should be reopened and accepted under a new Special Exposure Cohort class, the CE should take the action that will result in the most expedient positive outcome.
10. A period of 120 calendar days, effective with receipt of the case listing that will be sent under separate cover, is granted for case files affected by this PER for the district office to issue a Director’s Order reopening the
claim and to return the case file to NIOSH for a new radiation dose reconstruction.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
PETER M. TURCIC
Director, Division of Energy Employees
Occupational Illness Compensation
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