C.F.R. » Title 20 » CHAPTER I—OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR › SUBCHAPTER C—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000 › PART 30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED › Subpart D—Adjudicatory Process

20 C.F.R. § 30.318

How will FAB consider objections to NIOSH's reconstruction of a radiation dose, or to OWCP's calculation of the recommended probability of causation, in a Part B claim for radiogenic cancer?

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(a) If the claimant objects to NIOSH's reconstruction of the radiation dose to which the employee was exposed, either in writing or at the oral hearing, the FAB reviewer has the discretion to consult with NIOSH as part of his or her consideration of any objection. However, the HHS dose reconstruction regulation, which provides guidance for the technical methods developed and used by NIOSH to provide a reasonable estimate of the radiation dose received by an employee, is binding on FAB. Should this consultation take place, the FAB reviewer will properly document it in the case. Whether or not NIOSH is consulted, and as provided for in § 30.317, the FAB reviewer may decide to return the case to the district office for referral to NIOSH for such further action as may be appropriate.

(b) If the claimant objects to OWCP's calculation of the recommended probability of causation in a Part B radiogenic cancer claim, the FAB reviewer has the discretion to consider if OWCP used incorrect factual information when it performed this calculation. However, the statute requires that OWCP use a particular methodology, established by regulations issued by HHS at 42 CFR part 81, when it calculates the recommended probability of causation.

[84 FR 3051, Feb. 8, 2019]
Notes of Decisions
Cited in 2 cases, 2020–2020 · leading case: Young v. United States Dep't of Labor (D.D.C. 2020).
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Young v. United States Dep't of Labor (D.D.C. 2020). · cites it 2× “at 5; see also 20 C.F.R. § 30.318 (a) (noting that HHS’s methods for arriving at reasonable estimates are “binding” on DOL).”
Still v. United States Dep't of Labor (D.D.C. 2020). “at 28—the most that DOL could do to effectuate the Court’s order is “return the case to the district office for referral to NIOSH for such further action as may be appropriate,” 20 C.F.R. § 30.318 (a). But a referral from DOL would not likely redress an injury that ultimately…”
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