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EEOICPA BULLETIN NO.08-13

Issue Date: January 23, 2008

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Effective Date: January 23, 2008

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Expiration Date: January 23, 2009

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Subject: NIOSH’s OCAS-PER-016, entitled “Implementation of IREP procedures for claims near 50% probability of causation.”

Background: As of June 6, 2006, for claims in which the upper 99th percentile credibility limit (C.L.) of probability of causation (POC) was equal to or greater than 45% but less than 50%, the National Institute for Occupational Safety and Health (NIOSH) increased the simulation sample size from 2,000 to 10,000 in the Interactive RadioEpidemiological Program (IREP). To achieve greater statistical precision for cases close to the 50% threshold, NIOSH performed 30 IREP runs for each cancer. The average value of the resulting upper 99% C.L. of POC determines the claim outcome. NIOSH adopted this approach not only to provide better statistical precision, but to reduce the chance of denying a claim due to sampling error.

On September 25, 2007, NIOSH released OCAS-PER-016, entitled “Implementation of IREP procedures for claims near 50% probability of causation.” The purpose of the Program Evaluation Report (PER) is to evaluate the effect of NIOSH’s revised procedures on IREP calculations for previously decided claims. While the changes outlined in the PER do not affect the outcome of the claim, other dose reconstruction methodology modifications, i.e., Super S, Lymphoma, Technical Information Bulletin revisions, could potentially impact the dose reconstruction and outcome of the claim. As such, certain claims need to be returned to NIOSH for a new dose reconstruction. The IREP revision became effective on June 6, 2006. A copy of OCAS-PER-016 is included as Attachment 1.

This bulletin provides guidance on processing cases that are potentially affected by the release of OCAS-PER-016.

References: NIOSH document, OCAS-PER-016, “Implementation of IREP procedures for claims near 50% probability of causation,” effective September 25, 2007, found at http://198.246.98.21/niosh/ocas/pdfs/pers/oc-per16-r0.pdf.

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-016.


Applicability: All staff.

Actions:

1. On June 6, 2006, NIOSH revised the IREP procedures used for calculating the probability of causation. The revision to the procedure increases the statistical precision for cases approaching the compensation threshold of 50%. The cases that should be returned to NIOSH are those that had a dose reconstruction conducted prior to June 6, 2006 (as determined by the “Calculations performed by” date found on the most recent NIOSH Report of Dose Reconstruction under the EEOICPA on file), and:

· resulted in a POC of at least 45% but less than 50%, and

· IREP model 5.5.2(4) was not utilized in the POC calculation.

No action is required on cases with a dose reconstruction if IREP Version 5.5.2(4) was utilized in calculating the POC. Furthermore, no action is necessary on any case that is already at NIOSH for a dose reconstruction. For any case meeting the “no action” criteria, the CE should code ECMS and create a memorandum to the file as instructed in Action #9.

2. Based on ECMS data, we have attempted to identify all cases that meet the above criteria; a comprehensive list of potentially affected cases will be distributed to the appropriate district and FAB offices under separate cover. Offices must review the cases on the list that are in their locations and take appropriate actions, as outlined in this bulletin.

Because ECMS data entry may be incomplete or errant (or for some other reason) it is possible that cases on the list, when pulled and reviewed, may be found not to meet the criteria for obtaining new dose reconstructions; conversely, it is possible that cases not on the list are nonetheless impacted by this bulletin and require a new dose reconstruction.

For this reason it is important to emphasize that the crux of this bulletin, the requirement to do new dose reconstructions on cases that meet the criteria outlined in this bulletin, applies regardless of the case’s inclusion on the comprehensive list.

3. For those cases currently in posture for a recommended decision where the dose reconstruction was completed prior to June 6, 2006 and resulted in a POC of at least 45% but less than 50%, the CE is to determine which NIOSH IREP version was utilized in the calculation of the POC.

The CE can verify the IREP version used in the POC calculation in ECMS. However, if ECMS indicates that IREP version 5.5.2 was used instead of 5.5.2(4), then the CE must review the NIOSH CD. On the NIOSH CD, the CE looks for an HTML document named “IREP Summar…..” This document, when opened, is titled “NIOSH-Interactive RadioEpidemiological Program Probability of Causation Results.” The NIOSH-IREP version used in the PoC calculation is shown in the second entry on the top of the right hand column. If NIOSH IREP Version 5.5.2(4) was not utilized in the calculation of the POC, the CE is to return the case to NIOSH for a new dose reconstruction.

4. 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-016 and any other applicable modifications.” 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. 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 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.

(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 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. For those cases on the comprehensive list of cases that are currently pending a final decision at the Final Adjudication Branch (FAB), where the most recent dose reconstruction on file was conducted prior to June 6, 2006, and resulted in a POC of at least 45% but less than 50%, the Hearing Representative (HR)/CE is to determine which NIOSH IREP version was utilized in the calculation of the POC. If IREP Version 5.5.2(4) was not utilized in the POC calculation (see Action Item 3 for instructions on verifying the IREP version), 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 new dose reconstruction as a result of the release of OCAS-PER-016 and any other changes that potentially affect the dose reconstruction. The CE should code the case as “F7” (FAB Remand) with a “F7J” (Dose Reconstruction needs to be Reworked) reason code. The status effective date will be the date of the FAB remand.

6. 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 September 25, 2007, NIOSH issued OCAS-PER-016, entitled “Implementation of IREP procedure for claims near 50% probability of causation.” The change in NIOSH IREP model affects those cases with a dose reconstruction conducted prior to June 6, 2006 and resulted in a probability of causation (POC) of at least 45% but less than 50%. In addition to the IREP revision, NIOSH has made several changes that affect the methodology by which dose reconstructions are performed. As a result of these changes in the dose reconstruction methodology and the revision to the NIOSH IREP model used in calculating the POC, the previous POC is no longer valid.

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-PER-016, the prior dose reconstruction/POC calculation on your claim is now invalid. While the modification to the dose reconstruction methodology and the POC procedural revision may not impact the outcome of your claim, it is necessary for the claim to undergo a new dose reconstruction by NIOSH.

7. 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 the PER established for the IREP revision. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.

8. For those cases on the comprehensive list of cases that have a final decision to deny, where the most recent dose reconstruction on file was conducted prior to June 6, 2006, and resulted in a POC of at least 45% but less than 50%, the CE is to determine which NIOSH IREP version was utilized in the calculation of the POC. If NIOSH IREP Version 5.5.2(4) was not utilized in the calculation of the POC (see Action Item 3 for instructions on verifying the IREP version), the District Director should issue a Director’s Order vacating the final decision and reopening the claim. The Director’s Order should state that this action is necessary as a result of multiple changes in the scientific methodology by which dose reconstructions are performed by NIOSH, and the revision to the IREP procedures used in calculating the POC. The Director’s Order should also indicate that upon receipt of the new dose reconstruction report from NIOSH, a new recommended decision will be issued. A sample Director’s Order is included as Attachment 3. 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.

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 #4.

9. For those cases on the “comprehensive list” that do not require any action to be taken, the CE/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. The CE/HR must then code ‘NA’ – No Action Necessary, and then select the appropriate reason code from the reason code drop down list. For cases that were reviewed under this bulletin and require no additional action, the reason code that must be selected is ‘13P’ (Reviewed under 08-13). If the case is an E/B case, the NA-13P 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.

10. For cases on the list to be considered “worked,” the CE/HR must enter one of the following codes after the issuance date of this Bulletin:

  • NA-13P – This code will be entered when a case has been reviewed under this bulletin and either the criteria have not been met, or the case is already at NIOSH and therefore no additional action is necessary. Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the NA-13P code in addition to the closure code.
  • NI/PEP – This code reflects that the case has gone back to NIOSH to complete a new dose reconstruction as a result of OCAS-PER-016.

11. If a claimant requests a reopening of his/her claim as a result of OCAS-PER-016, regardless of the case’s inclusion on the comprehensive list of potentially affected cases, 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. The District Director should grant the reopening only if the evidence of file supports that a dose reconstruction was conducted prior to June 6, 2006, the POC resulted in at least 45% but less than 50%, and IREP Version 5.5.2(4) was not utilized.

Upon receipt of the claimant’s request 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. Following the input of the “MC” status code, the District Director should issue a Director’s Order reopening the claim following the procedures as outlined in this Bulletin.

For all claimant requests for reopening as a result of the IREP PER that do not meet the criteria for reopening as outlined in this bulletin, the District Director should prepare a memorandum to the Director of DEEOIC and forward the case file to the National Office for review. The District Director should code the case as “MC” (Claimant Requests Reopening) and “MI” (District Director Requests Reopening) to indicate that the file is being forwarded to National Office for review under the reopening process. The status effective date for the “MI” code is the date of the District Director’s memo to the Director of DEEOIC.

12. 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, 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
Attachment 3

Distribution List No. 1: All DEEOIC Employees

Distribution List No. 7: Resource Centers