The EEOICPA was passed in 2000. It provides compensation to workers who became ill as a result of their employment manufacturing nuclear weapons in the USA, as well as their spouses, children, and grandchildren.
Are you eligible for compensation? If you or a family member worked at any of the Atomic Weapons Employer (AWE) and Department of Energy (DOE) Covered Facilities listed on this website and became ill, you may be entitled to compensation of up to $400K plus medical benefits. Call EEOICPA Counsel Hugh Stephens at 1-855-548-4494 or fill out our free claim evaluation, We can help even if you’ve already filed, even if your claim was denied!
In these pages, we present general definitions of Illnesses covered by the Act, followed by specific references to the disease from the EEOICPA Procedure Manual, Bulletins, and Final Decisions of the Final Adjudication Board to clarify how these maldies might relate to the Energy Employees Occupational Illness Compensation Program Act.
Pharyngeal Cancer
Below we have collected specific references to pharyngeal cancer from the DEEOIC Procedure Manual, Bulletins, and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.
cancer.gov:
Throat (Laryngeal and Pharyngeal) Cancer
Definition of throat cancer: Cancer that forms in tissues of the pharynx (the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus). Throat cancer includes cancer of the nasopharynx (the upper part of the throat behind the nose), the oropharynx (the middle part of the pharynx), and the hypopharynx (the bottom part of the pharynx). Cancer of the larynx (voice box) may also be included as a type of throat cancer. Most throat cancers are squamous cell carcinomas (cancer that begins in thin, flat cells that look like fish scales). Also called pharyngeal cancer.
Page 47
uu. Specified Cancers are listed in Section 30.5(ff) of the regulations. An employee must be diagnosed with one of these specific types of cancer to be considered eligible for benefits as a member of the Special Exposure Cohort (SEC). The list of specified cancers, which is derived from section 4(b)(2) of the RECA Amendments of 2000, is as follows:
(5) The following diseases, provided onset was at least five years after first occupational exposure:
(c) Primary cancer of the:
(v) Pharynx (tonsil cancer is a cancer of the pharynx and is therefore included);
Page 176
e. Other Diseases. For the following diseases, onset must have been at least five years after initial exposure during qualifying SEC employment:
(3) Primary cancer of the:
(e) Pharynx (including the soft palate, or back of the mouth, the base of the tongue, and the tonsils);
Page 292
2. RECA Background.
c. Section 4 of RECA.
(1) Downwinders.
(b) Covered Illnesses: Leukemia (other than chronic lymphocytic leukemia), multiple myeloma, lymphomas (other than Hodgkin’s disease), and primary cancer of the thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), or lung.
Page 878
EEOICPA BULLETIN NO.02-28
Issue Date: September 10, 2002
________________________________________________________________
Effective Date: September 5, 2002
________________________________________________________________
Expiration Date: September 5, 2003
________________________________________________________________
Subject: Tonsil Cancer as a Specified Primary Cancer
Background: The National Office recently reviewed the medical evidence in a case file to determine if, for purposes of being considered a specified cancer under the EEOICPA, tonsil cancer can be considered pharynx cancer.
The DOL Interim Final Regulations, 20 CFR 30, states in Section 30.5(dd)(6) that the “specified cancers” in this section mean “the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.” The information on the National Cancer Institute website (http://cis.nci.nih.gov/fact/6_37.htm) indicates that the pharynx has three parts. One of these parts is the oropharynx, which includes “the soft palate (the back of the mouth), the base of the tongue, and the tonsils.” Based on this definition from NCI, we consider that a cancer of the tonsils is a cancer of the pharynx. As the tonsils are part of the pharynx, tonsil cancer should be considered a specified cancer for SEC cases.
Reference: Energy Employees Occupational Illness Compensation Program Act of 2000, As Amended, 42 U.S.C. § 7384 et seq., Sections 7384l(9), (14) and (17); 20 CFR 30, Section 30.5(dd)(6); and the NCI website (http://cis.nci.nih.gov/fact/6_37.htm).
Purpose: To notify District Offices that cancer of the tonsils is considered a pharynx cancer, which is a specified primary cancer for eligible SEC claimants under the EEOICPA.
Applicability: All staff.
Actions:
The CE should consider tonsil cancer as a pharynx cancer, which is a specified primary cancer per EEOICPA Section 7384l(17) and the DOL Interim Final Regulations, 20 CFR 30.5(dd)(4), in determining eligibility for members of the Special Exposure Cohort (SEC).
The CE should look for any other cases with this type cancer that could be eligible as members of the SEC. A preliminary review of the ECMS, searching for ICD-9 codes 146 and 146.0, identified six claims at SEC sites.
The CE should review all incoming SEC claims for this condition. If found, and all other relevant SEC criteria have been met, issue a Recommended Decision for acceptance of the claim as pharynx cancer.
4. The CE should continue to distinguish tonsil cancer from pharynx cancers using the appropriate ICD-9 codes on all paperwork and in ECMS. For example, the ICD-9 code for a malignant neoplasm of the tonsil is 146.0, and for the three parts of the pharynx it is 146 for the oropharynx, 147 for the nasopharynx, and 148 for the hypopharynx.
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
Page 83
EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claims for benefits are denied.
STATEMENT OF THE CASE
On April 11, 2002, [Claimant 1] filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that he was the son of [Employee], who was diagnosed with pharyngeal cancer. An additional claim followed thereafter from [Claimant 2] on October 20, 2002. [Claimant 1] also completed a Form EE-3, Employment History, indicating that [Employee] worked for Standard Oil Company, from 1950 to 1961; the State of Alaska as Deputy Director of Veterans Affairs, from 1961 to 1964; the State of Alaska Department of Military Affairs, Alaska Disaster Office, from 1965 to 1979 (where it was believed he wore a dosimetry badge); and, for the American Legion from 1979 to 1985.
In correspondence dated June 24, 2002, a representative of the Department of Energy (DOE) indicated that they had no employment information regarding [Employee], but that he had been issued film badges at the Amchitka Test Site on the following dates: October 28, 1965; September 30, 1969; and, September 21, 1970. You also submitted a completed Form EE-4 (Employment Affidavit) signed by Don Lowell, your father’s supervisor at the State of Alaska, Department of Public Safety, Division of Civil Defense. According to Mr. Lowell, your father was a radiological officer for the State of Alaska and accompanied him to Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969, as a representative of the State of Alaska.
Additional documentation submitted in support of your claim included copies of your birth certificates, a marriage certificate documenting [Name of Claimant 2 at Birth]‘s marriage to [Husband], and the death certificate for [Employee], indicating that he was widowed at the time of his death on May 10, 1993. In addition, you provided medical documentation reflecting a diagnosis of squamous cell carcinoma of the pharyngeal wall in November 1991.
On November 8, 2002, the Seattle district office issued a recommended decision that concluded that [Employee] was a covered employee as defined in § 7384l(9)(A) of the Act and an eligible member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA, who was diagnosed as having a specified cancer, specifically cancer of the hypopharynx, as defined in § 7384l(17) of the Act. See 42 U.S.C. 7384l(9)(A), (14)(B), (17). The district office further concluded that you were eligible survivors of [Employee] as outlined in § 7384s(e)(3) of the Act, and that you were each entitled to compensation in the amount of $75,000 pursuant to § 7384s(a)(1) and (e)(1) of the EEOICPA. See 42 U.S.C. §§ 7384s(a)(1) and (e)(1).
On December 20, 2002, the Final Adjudication Branch issued a Remand Order in this case on the basis that the evidence of record did not establish that [Employee] was a member of the “Special Exposure Cohort,” as required by the Act. The Seattle district office was specifically directed to determine whether the Department of Energy and the State of Alaska, Department of Public Safety, Division of Civil Defense, had a contractual relationship.
In correspondence dated January 17, 2003, Don Lowell elaborated further on your father’s employment and his reasons for attending the nuclear testing on Amchitka Island. According to Mr. Lowell, the Atomic Energy Commission (AEC) invited the governors of Alaska to send representatives to witness all three tests on Amchitka Island (Longshot, Milrow, and Cannikin). As such, [Employee] attended both the Longshot and Milrow tests as a guest of the Atomic Energy Commission, which provided transportation, housing and food, and assured the safety and security of those representatives.
On February 4, 2003, the district office received an electronic mail transmission from Karen Hatch, Records Management Program Officer at the National Nuclear Security Agency. Ms. Hatch indicated that she had been informed by the former senior DOE Operations Manager on Amchitka Island that escorts were not on the site to perform work for the AEC, but were most likely there to provide a service to the officials from the State of Alaska.
In correspondence dated February 11, 2003, a representative of the State of Alaska, Department of Public Safety, Division of Administrative Services, indicated that there was no mention of Amchitka or any sort of agreement with the Department of Energy in [Employee]‘s personnel records, but that the absence of such reference did not mean that he did not go to Amchitka or that a contract did not exist. He further explained that temporary assignments were not always reflected in these records and suggested that the district office contact the Department of Military and Veterans Affairs to see if they had any record of an agreement between the State of Alaska and the DOE. By letter dated March 13, 2003, the district office contacted the Department of Military and Veterans Affairs and requested clarification as to [Employee]‘s employment with the State of Alaska and assignment(s) to Amchitka Island. No response to this request was received.
On April 16, 2003, the S eattle district office recommended denial of your claims. The district office concluded that you did not submit employment evidence as proof that [Employee] was a member of the “Special Exposure Cohort” as defined by § 7384l(14)(B) of the Act, as the evidence did not establish that he had been present at a covered facility as defined under § 7384l(12) of the Act, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under § 7384l(11) of the Act, during a covered time period. See 42 U.S.C. § 7384l(11), (12). The district office further concluded that you were not entitled to compensation as outlined under § 7384s(e)(1) of the Act. See 42 U.S.C. § 7384s(e)(1).
FINDINGS OF FACT
1. On April 11 and October 20, 2002, [Claimant 1] and [Claimant 2], respectively, filed claims for survivor benefits under the EEOICPA as the children of [Employee].
2. [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx.
3. [Employee] was employed by the State of Alaska, Civil Defense Division, and was present on Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969.
4. [Employee]‘s employment with the State of Alaska, Civil Defense Division, on assignment to Amchitka Island, Alaska, was as a representative of the governor of Alaska.
CONCLUSIONS OF LAW
The undersigned has reviewed the recommended decision issued by the Seattle district office on April 16, 2003. I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).
In order to be awarded benefits under the Energy Employees Occupational Illness Compensation Program Act, the covered employee (or his/her eligible survivors), must first establish that the employee has been diagnosed with beryllium illness, cancer, or chronic silicosis. See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a). The evidence to show proof of an occupational illness is not in dispute in this case. The medical evidence establishes that [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx. Consequently, [Employee] was diagnosed with an illness covered under the Act.
Employees of a DOE contractor (or their eligible survivors) are entitled under the EEOICPA to seek compensation for a cancer as a member of the Special Exposure Cohort (SEC) or through a determination that they incurred cancer that was at least as likely as not related to employment at a DOE facility. 42 U.S.C. §§ 7384l(14), 7384l(9)(B)(ii)(II). To be included in the SEC, a DOE employee, DOE contractor employee, or atomic weapons employee must have been employed for an aggregate of 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, or employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. 42 U.S.C. § 7384l(14). To qualify as a covered employee with cancer, members of the SEC need only establish that they contracted a “specified cancer,” designated in § 7384l(17) of the EEOICPA, after beginning employment at a DOE facility or atomic weapons employer facility.
While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is. Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:
(A) An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.
(B) An individual who is or was employed at a Department of Energy facility by-
(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or
(ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.
The question presented in this case is whether [Employee], an employee of the State of Alaska, was, during the time he spent on Amchitka Island, providing management and operation, management and integration or environmental remediation services under a contract between the DOE and the State of Alaska.
The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the State of Alaska as a prime contractor for work on Milrow and Cannikin. The work to be performed under that contract consisted of police protection.
According to Don Lowell, [Employee]‘s supervisor at the time of his assignment to Amchitka Island, your father was not an employee of any contractor or the AEC at the time of his visit to Amchitka Island. Rather, he was an invited guest of the AEC requested to witness the atomic testing as a representative of the governor of Alaska.
The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island for the sole purpose of witnessing the atomic testing as a representative of the governor of Alaska. While the DOE indicated that [Employee] was issued a dosimetry badge on three occasions, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee. Therefore, [Employee]‘s presence on Amchitka Island was to perform work for the State of Alaska, as a representative of the governor, and not pursuant to a contract between the DOE and the State of Alaska.
It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA. The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in § 30.110. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations. See 20 C.F.R. § 30.111(a).
Although you submitted medical evidence to show a covered illness manifested by squamous cell carcinoma of the hypopharynx, the evidence of record is insufficient to establish that [Employee] engaged in covered employment. Therefore, your claims must be denied for lack of proof of covered employment under the EEOICPA.
Seattle, Washington
Rosanne M. Dummer
Seattle District Manager, Final Adjudication Branch
Page 215
EEOICPA Fin. Dec. No. 2597-2002 (Dept of Labor, July 8, 2003)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).
On June 6, 2003, the Jacksonville district office issued a decision recommending that you are entitled to medical benefits effective April 28, 2003 for colon cancer.
The district office referred the claims for skin cancer and cancer of the pyriform sinus to the National Institute for Occupational Safety and Health (NIOSH). However, the pyriform sinus is part of the hypo pharynx. EEOICPA Bulletin No. 02-28, Effective September 5, 2002, further defines that the hypo pharynx is one of three parts of the pharynx. The pharynx is a Special Exposure Cohort (SEC) cancer as defined in § 7384l(17)(A) of the Act, and § 30.5(dd)(5)(iii)(E) of the implementing regulations. 42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(5)(iii)(E). Therefore, I find that [Employee] has cancer of the pharynx, and is entitled to medical benefits for the treatment of pharynx cancer. As the pyriform sinus (pharynx cancer) is an SEC cancer, there is no need for dose reconstruction by NIOSH. The condition of skin cancer remains for dose reconstruction at NIOSH.
On June 16, 2003, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. I have reviewed the record on this claim and the recommended decision issued by the district office on June 6, 2003. I find that you are a member of the Special Exposure Cohort, as that term is defined in § 7384l(14)(A) of the Act; and that your colon cancer and pharynx (pyriform sinus) cancer are specified cancers under § 7384l(17)(A) of the Act and §§ 30.5(dd)(5)(iii)(M) and (E) of the implementing regulations. 42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A), 20 C.F.R. §§ 30.5(dd)(5)(iii)(M), 30.5(dd)(5)(iii)(E).
A claimant is entitled to compensation one time in the amount of $150,000 for a disability from a covered occupational illness. Since you were previously awarded $150,000 for lung cancer, this decision is for medical benefits only. I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to medical benefits effective April 28, 2003 for colon cancer, and effective August 9, 2001 for pharynx cancer (pyriform sinus), pursuant to § 7384t of the Act. 42 U.S.C. § 7384t.
Jacksonville, FL
July 8, 2003
Jeana F. LaRock
District Manager
Final Adjudication Branch
Page 660
EEOICPA Fin. Dec. No. 10017018-2006 (Dep’t of Labor, July 18, 2007)
NOTICE OF FINAL DECISION AFTER REVIEW OF THE WRITTEN RECORD
This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. After a review of the record, FAB accepts the claim for impairment benefits under Part E of EEOICPA based on the covered illness of pharyngeal cancer and consequential condition of an unspecified disorder of the teeth and supporting structures.
STATEMENT OF THE CASE
On February 19, 2002, [Employee] filed a request for a review by a Physicians Panel under the former Part D of EEOICPA with the Department of Energy (DOE), and on July 16, 2003 he filed a Form EE-1 claiming for benefits under Part B with the Department of Labor. Both of these claims were based on cancer of the tongue, throat and lymph nodes.
On May 21, 2002, FAB issued a final decision accepting [Employee]‘s claim for pharyngeal cancer under Part B. In that decision, FAB concluded that he was a member of the Special Exposure Cohort because he belonged to the class of employees who worked at the Amchitka Island Nuclear Explosion Site and had been diagnosed with a “specified” cancer (of the pharynx) on October 31, 2001. FAB therefore awarded [Employee] $150,000.00 and medical benefits for cancer of the pharynx.
On March 31, 2006, FAB also issued a final decision accepting [Employee]‘s claim for pharyngeal cancer under Part E, as well as for a consequential condition of an unspecified disorder of the teeth and supporting structures. In that second decision, FAB concluded that he was a covered DOE contractor employee with a “covered” illness (pharyngeal cancer), and that he had contracted that covered illness through exposure to a toxic substance while working at a DOE facility. FAB therefore awarded him medical benefits under Part E of EEOICPA, retroactive to February 19, 2002, for both his pharyngeal cancer and the consequential condition of an unspecified disorder of the teeth and supporting structures.
On May 10, 2006, the district office received [Employee]‘s letter requesting an impairment rating for his cancer of the pharynx and his accepted consequential condition. An impairment rating was performed by a District Medical Consultant (DMC), Dr. Coleen Weese. In her March 16, 2007 report, Dr. Weese concluded that [Employee] had a 15% permanent impairment of the whole person due to his pharyngeal cancer with metastasis to the lymph nodes.
The district office then referred the claim to another DMC, Dr. Marc Bodow, for a complete impairment rating that also included the accepted consequential condition of an unspecified disorder of the teeth and supporting structures, including xerostomia. In his April 7, 2007 report, Dr. Bodow indicated that [Employee] had a 21% impairment of the whole person due to the pharyngeal cancer (with metastasis) and the disorder of the teeth and supporting structures.
The Seattle district office conducted a telephone interview with [Employee] in which he stated that he had received a settlement of $18,231.62 of state workers’ compensation benefits related to the medical conditions for which he had claimed EEOICPA benefits. The record includes a Compromise and Release from the Alaska Workers’ Compensation Board that establishes that he received a settlement of $18,231.62 for his cancer due to radiation exposure on Amchitka Island.
On April 12, 2007, the Seattle district office issued a recommended decision to accept [Employee]‘s claim for permanent impairment based on his cancer of the pharynx and the consequential disorder of the teeth and supporting structures under Part E. The district office found that he had a 21% impairment of the whole body as the result of those covered illnesses, and that he was entitled to $2,500.00 for each percentage point (21 x $2,500.00 = $52,500.00), which had to be coordinated with the $18,231.62 he had received in state workers’ compensation benefits, leaving a net recommended award of $34,268.38.
On April 23, 2007, FAB received [Employee]‘s affirmation that neither he nor anyone in his family had ever filed for or received any settlement or award from a tort suit related to his exposure to radiation, and that he had not pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation. He also confirmed that he had filed for and received an $18,231.62 settlement of a state workers’ compensation claim for the same medical conditions he had claimed for under EEOICPA.
OBJECTIONS
On May 7, 2007, FAB received [Employee]‘s letter objecting to the recommended decision, indicating that he felt that 21% was not completely fair, and that he could only do 30% of what he used to do before he was diagnosed with cancer in 2001. In that letter [Employee], listed a number of ways in which he alleged that his quality of life had decreased, such as the weakness he experienced due to the radiation treatments he was receiving for his cancer, and his inability to enjoy activities or travel. Lastly, he disagreed with the coordination of his Part E benefits with the settlement he had received from the Alaska Workers’ Compensation program.
In a subsequent June 4, 2007 submission, [Employee] provided FAB with letters written by his two best friends with their observations of his condition. He also indicated that he had had an appointment three weeks ago with his physician, who had told him that his exhaustion was due to the radiation doses he had been receiving in his neck and throat. Once the recommended decision on impairment has been issued and forwarded to FAB for the issuance of a final decision, an employee may submit new medical evidence or an additional impairment evaluation to challenge the evaluation upon which the recommended decision was based. However, the employee bears the burden of proving that the new medical evidence or new impairment evaluation is of greater probative value than the evaluation used by the district office to determine the impairment rating. 20 C.F.R. § 30.908 (2007). In this case, [Employee] did not provide any medical evidence or an impairment evaluation that is of greater probative value than the impairment evaluation received from the second DMC. In his report, that DMC provided medical rationale supporting his whole body permanent impairment rating of 21%, and explained how he had arrived at that percentage using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides).
As for the state workers’ compensation benefits [Employee] received, 20 C.F.R. § 30.626 notes that the Division of Energy Employees Occupational Illness Compensation (DEEOIC) must reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits. If a covered Part E employee or a survivor of such employee receives benefits through a state workers’ compensation program pursuant to a claim for the same covered illness, DEEOIC will first determine the dollar value of the benefits received from a state workers’ compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness. DEEOIC will then deduct the reasonable costs of obtaining those state workers’ compensation benefits, such as attorney fees and certain itemized costs (like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to DEEOIC for its consideration. The Part E benefits that will be reduced consist of any unpaid monetary payments payable in the future and medical benefits payable in the future. In those cases where it has not yet paid Part E benefits, DEEOIC will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first. If the amount to be subtracted exceeds the monetary payments currently payable, DEEOIC will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus. This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).
The record establishes that [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for mouth and throat cancer due to his work-related exposure to radiation at Amchitka Island. It also establishes that his employers and the employers’ insurance carriers paid a separate amount of $6,768.38 for his attorney fees.
After considering the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
- On February 19, 2002, [Employee] filed a claim under EEOICPA with DOE, and also with the Department of Labor on July 16, 2003.
- FAB issued a final decision accepting [Employee]‘s Part B claim for cancer of the pharynx on May 21, 2002.
- FAB also issued a final decision accepting [Employee]‘s Part E claim for cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures on March 31, 2006.
- [Employee] has a 21% whole body permanent impairment due to cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures, resulting in a gross impairment award of $52,500.00. Following coordination of this gross award with [Employee]‘s state workers’ compensation benefits of $18,231.62, the net impairment award payable is $34,268.38.
Based on the above-noted findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
[Employee] has previously been determined to be a covered DOE contractor employee who contracted cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth through exposure to a toxic substance (radiation) at a DOE facility, the Amchitka Island Nuclear Explosion Site. Applying the provisions of 42 U.S.C. § 7385s-2 and 20 C.F.R. § 30.901, he has an impairment rating of 21% in accordance with the Guides and the gross amount of his impairment award is $52,500.00. However, [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for the same accepted conditions. Therefore, his Part E benefits must be coordinated with those state workers’ compensation benefits, and the net amount of impairment benefits payable following coordination is $34,268.38.
The undersigned notes [Employee]‘s objections to the recommended decision; however, they do not change the outcome of this case. FAB is bound by the provisions of EEOICPA and the regulations, and has no authority to depart from them. Accordingly, [Employee] is entitled to compensation for his permanent impairment in the amount of $34,268.38 under Part E.
Seattle, Washington
Kelly Lindlief
Hearing Representative
Final Adjudication Branch
Page 953
EEOICPA Fin. Dec. No. 82961-2008 (Dep’t of Labor, March 27, 2008)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, FAB accepts and approves the claims for benefits [of Claimant #1, 2, 3, 4 and 5] under Part B for the employee’s epiglottis cancer, and awards compensation to those five persons in the total amount of $150,000.00, to be divided equally.
Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her additional compensation in the amount of $125,000.00.
STATEMENT OF THE CASE
On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease. The record includes a copy of [Employee]‘s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease.
[Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980. DOE verified [Employee]‘s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.
On October 16, 2005, [Employee’s Spouse] died, and her claim was administratively closed.
On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2. Each claimed benefits as the surviving child of [Employee].
[Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname. [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname. The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].
Medical documentation in the record includes a document from the New Mexico cancer registry that provides a diagnosis of cancer of the epiglottis on April 25, 1989; a January 11, 2005 letter from Dr. Charles McCanna, in which he indicated that [Employee] died from complications of epiglottis (throat) cancer; another letter from Dr. McCanna stating that the employee’s medical records are no longer available; and a letter from St. Vincent Hospital dated January 24, 2005, indicating that their records had been destroyed.
On June 5, 2007, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether the employee’s cancer of the epiglottis was “at least as likely as not” related to his covered employment. However, the case was returned on March 14, 2008 so the district office could review it to determine if the employee was included in the designation by the Secretary of Health and Human Services (HHS) of certain LANL employees as an addition to the Special Exposure Cohort (SEC).
On September 11, 2007, FAB issued a final decision on the Part E claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4], concluding that these claimants are not eligible “covered” children under Part E.
On March 14, 2008, the Seattle district office received information from a Department of Labor Health Physicist (HP) on the question of whether cancer of the epiglottis is a “specified” cancer. The HP stated the following:
Pharynx cancer is a specified cancer for SEC claims. With regard to epiglottis cancer, the National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx. 20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA. The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus. The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer.
On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E. The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer. The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally. Further, the district office concluded that a determination that a DOE contractor employee and qualified member of the SEC is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility, and since [Claimant #5] was under the age of 18 at the time of [Employee]‘s death, she is the only eligible survivor under Part E and is entitled to compensation in the amount of $125,000.00.
The claimants each indicated on their respective Forms EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from either a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].
On March 20, 2008, FAB received written notification from [Claimant #1, 2, 4 and 5], indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision. On March 24, 2008, FAB received written notification from [Claimant #3], indicating she also waives all rights to file objections to the findings of fact and conclusions of law in the recommended decision.
After considering the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
1. On December 13, 2006 [Claimant #1]and [Claimant #2]; and on January 4, 2007 [Claimant #3], [Claimant #4] and [Claimant #5] each filed a claim for survivor benefits under EEOICPA.
2. [Employee] was diagnosed with epiglottis cancer on April 25, 1989.
3. [Employee] died on September 1, 1990, due to acute bronchopneumonitis, with a contributing factor of coronary artery disease; which were complications of his epiglottis (throat) cancer.
4. [Employee] worked at LANL as a security guard with the AEC from May 15, 1972 to January 9, 1981, and with the University of California, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.
5. There is a causal connection between the employee’s death due to epiglottis cancer and his exposure to radiation and/or a toxic substance at a DOE facility.
6. [Claimant #1, 2, 3, 4 and 5] are the eligible children of [Employee] under Part B.
7. [Claimant #5] was 17 years of age at the time of [Employee]‘s death.
8. All five claimants indicated on their respective Form EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].
Based on the above-noted findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. See 20 C.F.R. § 30.316(a). All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims.
In order for him to be considered a covered Part B employee, the evidence must establish that [Employee] was diagnosed with an occupational illness incurred as the result of his exposure to silica, beryllium, or radiation, and those illnesses are cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, EEOICPA requires that the illness must have been incurred while the employee was “in the performance of duty” for DOE or certain of its vendors, contractors, subcontractors, or for an atomic weapons employer. See 42 U.S.C. §§ 7384l(4)-(7), (9), and (11).
On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC. The new SEC class became effective on July 22, 2007.
The employment evidence is sufficient to establish that [Employee] was employed at LANL for an aggregate of at least 250 work days, as a security guard, and therefore he is considered to be an eligible member of the class of employees who worked at LANL from March 15, 1943 through December 31, 1975 that was added to the SEC.
[Employee] is a member of the SEC who was diagnosed with epiglottis cancer, which is cancer of a part of the pharynx (a “specified” cancer), more than 5 years after his initial exposure, and therefore he is a “covered employee with cancer.” See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A) and 20 C.F.R. § 30.5(ff)(5)(iii)(E). Therefore, as the employee is now deceased, the five claimants are entitled to compensation in the total amount of $150,000.00, divided in equal shares of $30,000.00 each. See 42 U.S.C. § 7384s(a) and (e).
The statute provides that if a determination has been made that a DOE contractor employee is entitled to compensation for an occupational illness under Part B, such determination shall be treated, for purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility. See 42 U.S.C. § 7385s-4(a). Consequently, [Employee]‘s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility. The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]‘s death. As the employee would have been entitled to compensation for his covered illness under Part E; and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1). [Claimant #5] was 17 years of age at the time of [Employee]‘s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00. See 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(d).
Seattle, Washington
Keiran Gorny
Hearing Representative
Final Adjudication Branch
Page 1151
EEOICPA Fin. Dec. No. 10055714-2007 (Dep’t of Labor, April 11, 2007)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim for benefits under Part E of the Act is accepted for survivor benefits, but your claim for impairment benefits under the Act is denied.
STATEMENT OF THE CASE
On January 31, 2003, [Employee] (hereinafter referred to as “the employee”) filed a claim for benefits under the Act for the conditions of throat, tongue, and larynx cancer. In a final decision dated April 16, 2003, the FAB accepted the employee’s cancer of the pharynx with metastasis, and awarded the employee $150,000.00 and medical benefits for cancer of the pharynx and complications of that condition.
On May 26, 2006, a final decision was issued accepting the employee’s claim for pharynx and lung cancer for medical benefits under Part E of the Act. Another final decision was issued on June 21, 2006, finding that the employee was entitled to an impairment award of $240,000 based on a 96% impairment rating for his pharynx cancer and lung cancer. However, the employee died on July 1, 2006, prior to the payment of the funds awarded for impairment. By Director’s Order of August 25, 2006, the June 21, 2006 decision was vacated and the case was returned to the district office for further development of a survivor claim.
On July 24, 2006, you submitted a claim for survivor benefits under the Part E of the Act. In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on February 6, 1981, and the employee’s death certificate, showing that you were the employee’s spouse on the date of death, July 1, 2006, and that the employee died of squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung, with metastasis.
On September 30, 2006, the district office issued a recommended decision that you are entitled to receive a lump-sum survivor award of $125,000.00.
Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. On October 16, 2006, the FAB received your letter of objection and request for a hearing dated October 16, 2006. The hearing was held on December 12, 2006 in Birmingham , Alabama.
A claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record. By letter dated December 22, 2006, the transcript was forwarded to you. No response was received.
OBJECTIONS
At the hearing, you testified that the Jacksonville district office issued a recommended decision to accept the employee’s claim for impairment benefits in the amount of $240,000.00. The money was to be paid by electronic funds transfer (EFT) into an account held jointly by you and the employee. The account had been opened as a SouthTrust Bank account. SouthTrust and Wachovia completed a merger in October of 2005.
You provided testimony, supported by documents submitted by your attorney and the case record, that you completed an EN-20 form, and provided account information to the Department of Labor (DOL) with the account number [Number deleted]. Your son, [Employee’s child], faxed and over-night mailed the EN-20 form to the DOL on June 28, 2006. On June 29, 2006, the Treasury Department attempted to send the electronic funds transfer (EFT) but the EFT could not be completed. DOL notified you of this occurrence on that same day and requested that you provide new account information. On June 29, 2006, [Employee’s child] again faxed and over-night mailed a new EN-20 form to the DOL. On the new EN-20, you provided the Wachovia account number [Number deleted]. The employee passed away on July 1, 2006. On or about July 6, 2006, the Treasury Department transmitted the funds to your account. DOL subsequently determined that the employee had died before the $240,000.00 was actually paid the second time, and the $240,000.00 EFT was removed from your account.
You testified that the only difference between the SouthTrust account number and the Wachovia account number is that the Wachovia number has a “1000” at the beginning and a “1” at the end; the middle “[Number Deleted]” is identical in both numbers. You stated that you continue to use the SouthTrust account number.
Both at the hearing and in a December 13, 2006 letter, your attorney argued that since the Treasury Department paid the money before the employee died, the receipt of the money is immaterial. He cited the Procedure manual at E-600(8)(a)(1) which states, “If a clamant is alive at the time a final decision is issued and is to be paid via an EFT, the EFT should not be cancelled if the claimant subsequently dies.”
The issue here is whether you are entitled to receive the impairment award issued prior to the employee’s death, but rejected by your bank.
Your attorney argues that the procedure manual actually states if a clamant is alive at the time a final decision is issued and is to be paid via an EFT, the EFT should not be cancelled if the claimant subsequently dies. The section of the Procedure Manual quoted by your attorney, in its entirety, states:
If a paper check has been mailed to the employee, the payment must be cancelled. The employee must be able to endorse the check. If the payment is made via electronic fund transfer (EFT), the payment should not be cancelled. For more information on cancellation procedures, refer to EEOICPA Bulletin No. 04-10.[1]
EEOICPA Bulletin Nos. 02-12 (issued July 31, 2002) and 04-10 (issued March 16, 2004) describe the payment process as beginning when payment is authorized by DEEOIC and ending either when the payment is received in the beneficiary’s account, or when Treasury (or the beneficiary) cancels the payment. If Treasury cancels the payment, the National Office voids the payment record and a new payment process is initiated. Action Item No. 9 in Bulletin No. 04-10 states that “The District Director must determine whether a repayment to the current payee will be required. For example, if the payment is cancelled because the employee or claimant died before receipt, he/she is not going to be paid a lump sum.”
Therefore, in accordance with the policies of the DEEOIC, since the employee did not receive the impairment payment prior to his death, a new determination must be made concerning your entitlement as a survivor.
After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:
FINDINGS OF FACT
1. On January 31, 2003, the employee filed a claim for benefits under the Act for the conditions of throat, tongue, and larynx cancer.
2. In a final decision dated April 16, 2003, the FAB accepted the employee’s cancer of the pharynx with metastasis, and awarded the employee $150,000.00 and medical benefits for cancer of the pharynx and complications of that condition.
3. On May 26, 2006, a final decision was issued accepting the employee’s claim for pharynx and lung cancer for medical benefits under Part E of the Act.
4. A final decision was issued on June 21, 2006, finding that the employee was entitled to an impairment award of $240,000.00 based on a 96% impairment rating for his pharynx cancer and lung cancer.
5. The employee died on July 1, 2006, prior to the payment of the funds awarded for impairment.
6. By Director’s Order of August 25, 2006, the June 21, 2006 decision was vacated and the case was returned to the district office for further development of a survivor claim.
7. On July 24, 2006 you filed a claim for survivor benefits under the Act.
8. You were the employee’s spouse at the time of death and at least a year prior.
9. Squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung, with metastasis caused or contributed to the employee’s death.
Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:
CONCLUSIONS OF LAW
I have reviewed the record, the recommended decision issued by the Jacksonville district office on September 30, 2006 and the subsequently submitted objections.
You meet the definition of a survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d)(1).
A prior final decision under Part B of the Act concluded that the employee was an employee of a contractor or subcontractor entitled to compensation for an occupational illness. A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that Part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1) and 7385s(2). The employee died as a result of squamous cell carcinoma of the larynx, and non-small cell adenocarcinoma of the left lower lobe of the lung.
Under the Act, if a covered Part E employee dies after filing a claim but before compensation is paid under Part E of the Act, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the compensation that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment. The survivor is not entitled to the $125,000.00 lump-sum payment because death was not caused by the claimed covered condition.
However, if the covered illness or illnesses aggravated, contributed to, or caused a covered Part E employee’s death, then the survivor does not have the option to choose to receive the compensation that would have otherwise been payable to the covered Part E employee if living.[2]
I conclude that the employee was a DOE contractor employee with cancer of the pharynx and lung cancer due to exposure to a toxic substance at a DOE facility. 42 U.S.C. §§ 7385s(1) and 7385s-4(b). The employee’s death was a result of squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung. Therefore, you are entitled to benefits in the amount of $125,000.00 for the employee’s death due to squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung. 42 U.S.C. § 7385s-3.
Jacksonville, FL
Jeana F. LaRock, Hearing Representative
Final Adjudication Branch
[1] Federal (EEOICPA) Procedure Manual, Chapter E-600(8)(a)(1) (September 2005).
[2] Federal (EEOICPA) Procedure Manual, Chapter E-600.8.b(1)(a) (September 2005).