For claims other than SEC claims, when a claim is filed under EEOICPA, the Department of Labor makes an initial determination as to whether the claimant worked at a covered facility during a covered period and has a qualifying health condition.  

Suppose the health condition at issue is cancer. In that case, the case is sent to the National Institute for Occupational Safety and Health (NIOSH) for “dose reconstruction,” estimating a worker’s past exposure to radiation based on exposure monitoring and other information.

NIOSH then sends an acknowledgment letter to the claimant, notifying them that NIOSH received the case from the DOL for dose reconstruction. While a case is pending with NIOSH for dose reconstruction, claimants are given a NIOSH tracking number, which allows them to obtain their current case status online. NIOSH tracking numbers are assigned in the order the case is received from the DOL. NIOSH currently completes 300-400 dose reconstructions per month.

NIOSH uses personal exposure information (film badge readings, x-rays, urinalysis results, incident reports, etc.) whenever possible. If little or no personal exposure information is available, NIOSH will use technical documents (site profiles, etc.) and coworker data to provide reasonable dose estimates to fill in the gaps. Once the NIOSH contractor has received enough information to conduct the dose reconstruction, NIOSH selects a health physicist to work on the particular case.

Questionnaires are sent to claimants, and answers are submitted via telephone interviews. The telephone interviews are conducted to offer claimants/survivors an opportunity (optional/voluntary) to provide additional information not described in the radiation exposure information. A written telephone interview summary report is sent to the claimant following the interview to provide an opportunity for review and to submit corrections/additional information (also via telephone). 

Following the telephone interview, NIOSH performs an analysis and prepares a report of ranges of estimates, including worst-case figures.

The draft dose reconstruction report is sent to the claimant for review. Within two weeks of receipt of the draft report, NIOSH conducts an optional closing interview with the claimant to review the results and the basis for their calculation and to address any remaining questions/concerns.  

If NIOSH revises the draft report, the claimant will receive a revised copy, and a new closing interview will be scheduled. Otherwise, if a claimant disagrees with the NIOSH draft dose reconstruction report, they may state such disagreement only later upon receipt of the DOL’s recommended decision in the case.

The claimant is required to sign and return an OCAS-1 form (OCAS is the NIOSH Office of Compensation Analysis and Support) within sixty days from the date of receipt of the draft dose reconstruction report, stating that they have no information to add and authorizing NIOSH to forward the complete report to the DOL for a decision.  

NIOSH will send the claimant a copy of the final dose reconstruction report upon receipt of a signed OCAS-1 form. If NIOSH does not receive the OCAS-1 form, NIOSH will administratively close the case and refuse to forward it to the DOL. The case may be reopened once the signed OCAS-1 form is submitted.  

In the case of multiple claimants, partial compensation will only be awarded to those individuals who return a signed OCAS-1 form. 

The Advisory Board on Radiation and Worker Health (scientific, medical, and worker perspectives) reviews dose reconstructions for scientific validity and accuracy.

Once NIOSH completes the dose reconstruction, the case is returned to the DOL. The Department of Labor reviews the dose reconstruction report, as well as medical, employment, and other information from the employee/survivor. 

The DOL then decides as to the probability of causation, expressed as a percentage (0% – 100%) – the likelihood that the cancer was “at least as likely as not” due to the employee’s occupational exposure to ionizing radiation during employment at a covered facility during a covered period (i.e., periods in which nuclear weapons-related production occurred).  

Also, facilities having significant contamination may have quantities of residual radioactive material that “could have caused or substantially contributed to the cancer of a covered employee.” A percentage value greater than or equal to 50% at the upper 99th percentile credibility limit constitutes a finding that it is “at least as likely as not” that the radiation dose caused the employee’s cancer. 

The DOL will recommend compensation for cases where the probability of causation is 50% or greater but not for cases where the possibility of causation is less than 50%.

The DOL may determine that the cancer was caused not by occupational radiation exposure but by environment, lifestyle, or genetics based on identified behaviors, characteristics, and activities (risk factors). The DOL uses a computer program developed by NIOSH, known as NIOSH-IREP, to calculate the probability of causation. 

The main determinants of “probability of causation” are cancer risk models (mathematical models based upon the dose-response relationship determined for a given cancer type, taking into account the cancer type, year of birth, year of cancer diagnosis, years of exposure, radiation type, and dose, but not taking into account any other occupational, environmental, or dietary carcinogens, except for smoking for lung cancer and ethnicity for skin cancer) and radiation dose levels (i.e., the amount of radiation dose to which an employee was exposed, based on estimation methods that favor of the claimant).

The DOL uses the dose reconstruction results developed by NIOSH, as well as the employee’s personal characteristics, employment, and medical information.