EEOICPA BULLETIN NO.02-19
Expiration Date: July 23, 2003
Subject: Processing NIOSH Cases
Background: Section 20 C.F.R 30.115(a) of the interim final regulations currently provides that the Office of Workers Compensation Programs (OWCP) will forward eligible claimant application packages to HHS for dose reconstruction. The final rule 42 CFR Part 82 details the responsibilities of NIOSH in the reconstruction of an employee’s dose. The final rule 42 CFR Part 81 details DOL’s responsibilities in calculating the probability of causation based on NIOSH’s dose reconstruction for the employee.
This Bulletin provides additional details related to the cases sent to and received from NIOSH. The items addressed below were discussed and agreed to in a meeting between DOL and NIOSH in Cincinnati, Ohio, on May 8 – 9, 2002.
Reference: Interim final regulation 30 CFR 30.115(a) and (c), 30.210(b); Final Regulation 42 CFR Part 81 Subpart E; and Final Regulation 42 CFR Part 82.4 and Subpart D.
Purpose: To provide additional details related to DOL cases sent to and received from NIOSH.
Applicability: All staff.
1. NIOSH regulations state that they will interview all claimants. Thus even if DOL has not established a covered survivor, NIOSH still needs to know who the actual claimants are (individuals that filed EE-2). On the NIOSH Referral Summary, the CE should list only those individuals that have filed a claim. The CE should not list other possible survivors.
If NIOSH receives calls from individuals who allege they are survivors and are not on the NIOSH Referral Summary, NIOSH will refer them to DOL. If the CE receives a call, the CE should advise the individual of the requirements under EEOICPA. The individual should further be advised that in order to be considered a claimant and to be interviewed by NIOSH s/he must file an EE-2. If an EE-2 is received, the CE should advise NIOSH that the individual is a claimant and can be interviewed by NIOSH.
The CE should still list other contacts and representatives on the NIOSH Referral Summary, clearly indicating that these individuals are not claimants.
2. The OCAS-1 Form is provided to the claimant after completion of the dose reconstruction report. The claimant’s signature on the OCAS-1 Form does not mean that the claimant agrees with the dose reconstruction, rather the claimant is only agreeing to the process and agreeing that s/he provided NIOSH with all evidence s/he had.
The claimant is allowed up to 60 days to sign the OCAS-1 Form during which time the claimant may provide additional facts. If additional information is submitted, NIOSH will review the evidence, prepare a new dose reconstruction report, and send a new OCAS-1 Form to the claimant for an additional 60-day comment period.
If the claimant does not sign the OCAS-1 Form or submit comments within 60 days, NIOSH will send the claimant a letter informing the individual that NIOSH will administratively close the case. NIOSH will then send a letter to DOL addressing the administrative closure of the case. The CE should then administratively close the case by entering code “NO” in the case status screen and the description “NIOSH Administrative Closure” will appear. The CE should enter the date of receipt of the NIOSH letter (date stamp) as the status effective date. Thereafter the CE should send a letter to the claimant advising that the case has been administratively closed by NIOSH due to a lack of signature on the OCAS-1 Form. In order to re-open the case, the claimant must advise DOL of intent to sign the OCAS-1 Form. The claimant should be further advised that DOL is unable to complete the adjudication process without NIOSH’s findings.
3. If the case has multiple claimants NIOSH will wait 60 days for receipt of all OCAS-1 Forms signed by each claimant. If, after 60 days, NIOSH receives only one signed OCAS-1 Form, NIOSH will forward the dose reconstruction package to DOL.
The CE should send a development letter to the claimant(s) that did not sign the OCAS-1 Form. The claimant(s) should be asked to provide within 30 days information or reasons s/he did not sign the OCAS-1 Form. The CE should consider any arguments given by claimant(s), and if substantive, refer the case back to NIOSH. Substantive arguments would include discovery of additional relevant information related to dose reconstruction, e.g., information or documents concerning radiological exposures, other co-workers, or operations and radiological controls at the specific facility. If arguments for refusals to sign are not provided or not substantive, or if no response is received within 30 days, the CE should issue a recommended decision awarding (or denying) benefits to all eligible claimants (even those claimants that did not sign the form). One signed OCAS-1 Form will be sufficient to render the decision.
4. When the case is returned from NIOSH, all case file documents will be forwarded to DOL via compact disc (CD), since all documents referred to NIOSH and used in the dose reconstruction are optically scanned into the NIOSH computers. NIOSH will uniquely identify (on the label on the CD case) the case by District Office and Social Security Number. The CD will include the dose reconstruction input file (Excel spreadsheet) to be used for the IREP probability of causation calculation.
NIOSH will have the pertinent documents (dose reconstruction report, other records of import to CE) at the front of the CD so that the CE can include those documents in the hard copy for review purposes. The CE should print out the dose reconstruction report and the OCAS-1 Form and include these as hard copies in the DOL case file.
The CE should keep the NIOSH CD with the case file. Also, after the CE runs the probability of causation calculation, a hard copy of the DOL IREP run and an electronic file of that calculation, on a 3.5 inch diskette, should also be retained in the case file.
5. Information contained on the NIOSH CD will include:
· Dose reconstruction files, including phone interview report (CATI – Computer Assisted Telephone Interview); dosimetry data; the NIOSH Report of Dose Reconstruction under EEOICPA; NIOSH’s probability of causation calculation; the OCAS-1 Form; the NIOSH-IREP input file; and pertinent AEC/DOE reports, journal articles or other documents.
· Correspondence, including NIOSH letters to claimants, phone conversation notes, and Internet E-mails.
· DOE files (data files listed in order of importance on the CD), including DOE dose and work history information and other DOE documents that NIOSH requested, such as incident reports and special studies.
· DOL files, including a copy of the case file optically imaged by NIOSH and the OCAS tracking sheets (signatures and dates).
The CE should note that NIOSH will incorporate all important information from the above sources into the dose reconstruction report. Publicly available documents will be referenced by citation. Documents not publicly available will be placed in the record and, as noted above, will be included on the CD.
6. It is not necessary for the CE to review all of the documents on the CD. Those documents that normally will not require review include the DOE documents, the claimant interview, the NIOSH-run probability of causation calculation, and the NIOSH conducted closing interview. As a note, NIOSH does run the probability of causation (POC) calculation for each employee. This reduces unnecessary time for NIOSH in completing the dose reconstruction, and the POC results are incorporated into the dose reconstruction findings. NIOSH’s IREP run is utilized for their internal purposes only. The CE should not use NIOSH’s IREP calculations as a basis for a determination in the claim. The CE will always run the IREP separately.
7. If, during the course of an interview, NIOSH determines that there is additional covered employment, they will identify any differences in a cover memo to DOL upon return of the case record. NIOSH will perform dose reconstruction on all verified employment (even if they identified more than DOL had originally stated) and forward the case record to DOL with the completed dose reconstruction report. If the CE determines that the new verified employment is not established for any reason, the CE should refer the case back to NIOSH for a new dose reconstruction.
8. In recommended decisions (sample recommended decision attached), the CE will rely on NIOSH’s dose reconstruction report and should not question those findings. Appeal occurs at the FAB level. A notice of claimant rights goes out with recommended decision. The recommended decision should include a discussion of the scope of the FAB’s review of the dose reconstruction process. The FAB will only remand the case if there is evidence that NIOSH did not review relevant factual material.
If the claimant wishes to argue the results of the dose reconstruction, the NIOSH decision is binding on the FAB, unless the argument on the dose reconstruction process is significant. The FAB may make this determination of “significant evidence/argument” by referring the case to the National Office health physicist.
If FAB remands a case to the district office for forwarding to NIOSH for reconsideration, NIOSH will amend their dose reconstruction report based on their review. NIOSH will then forward the case back to the district office for a new recommended decision (after a new OCAS-1 Form is sent to the claimant).
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, District Office Mail & File Sections
On September 30, 2001, Peter James filed a claim for benefits under EEOICPA seeking a $150,000 award of compensation.
Mr. James submitted a medical report from Dr. Chou dated November 10, 2000 indicating that he has been receiving treatment for cancers of the kidney and lung. Mr. James also submitted a pathology report dated October 21, 1999, which showed that he has a malignant tumor in his right kidney that was most consistent with primary renal cancer. A second pathology report dated July 6, 2000 showed that he was also diagnosed with primary lung cancer.
A copy of the case file along with a NIOSH Referral Summary was forwarded to NIOSH for dose reconstruction in December 2001. On May 30, 2002, the Office received the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 28, 2002, which provided the estimates of dose to the primary kidney and primary lung sites. NIOSH estimated annual doses totaling 15 rem for the kidney and 20 rem for the lung. Based on these dose estimates, the calculation of probability of causation was completed using NIOSH-IREP, which is an interactive software program. The probability of causation for the two primary cancers was determined to be 55%.
Peter James filed a claim for benefits on September 20, 2001.
Mr. James was a covered DOE employee at the Y-12 Plant located in Oak Ridge, Tennessee from 1970 through 1990.
Mr. James was monitored through the use of a dosimetry badge for exposure to radiation during his employment at the Y-12 Plant.
On October 21, 1999, Mr. James was diagnosed with primary renal cancer.
On July 6, 2000, Mr. James was diagnosed with primary lung cancer. These diagnoses were made after Mr. James began his employment with the Department of Energy.
Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at Y-12) was calculated for the two primary cancers. The probability of causation values were determined using the upper 99 percent credibility limit, which helps minimize the possibility of denying claims to employees with cancers likely to have been caused by occupational radiation exposures. It was shown that the Mr. James’ renal and lung cancers were “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Y-12 Plant.
The dose reconstruction estimates were performed in accordance with 7384n(d) of EEOICPA and 42 CFR Part 82 §82.26. The Probability of Causation was completed in accordance with 7384n(c)(3) of EEOICPA and Subpart E of 42 CFR Part 81. Further, the calculation based on two primary cancer sites was completed in accordance with 42 CFR Part 81 §81.25. The claimant is entitled to compensation in the amount of $150,000 pursuant to 7384s of EEOICPA. He is also entitled to medical benefits for primary renal cancer and primary lung cancer.