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Toxic Substances

Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of “Toxic Substances.”

A very large (1314 pages, 4.5 MB), searchable pdf file of all of the Final Decisions of the Final Adjudication Branch (FAB) for all categories can be downloaded here. (right-click and “Save Link As” to download to your computer).

We hope these decisions are helpful.  Please add your experiences in the comments section.

Toxic Substances

Acceptance under former Part D

EEOICPA Fin. Dec. No. 2029-2002 (Dep’t of Labor, January 10, 2005)

NOTICE OF FINAL DECISION

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). Your claim under Part E of the Act is hereby accepted as compensable.

The Jacksonville district office issued a recommended decision finding that [Employee] was employed at a Department of Energy (DOE) facility by a DOE contractor in accordance with Part E, 42 U.S.C. § 7385s(1); that you are the eligible survivor in accordance with Part E, 42 U.S.C. § 7385s-3(c)(1); and that you are entitled to $125,000 in accordance with Part E, 42 U.S.C. § 7385s-3(a)(1).  Consequently, the district office concluded your survivor claim is accepted in accordance with Part E, 42 U.S.C. § 7385s-4(b).  On December 28, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. 

The evidence of record establishes that your application meets the statutory criteria for compensability as defined in Part E of the EEOICPA.  In this instance the evidence confirms that your spouse had covered employment with the gaseous diffusion plant in Paducah, Kentucky, for the period of March 24, 1952 to January 15, 1982, and supports a causal connection between your spouse’s death and his exposure to a toxic substance at a DOE facility.  Specifically, the evidence of record establishes that a Physicians Panel review under former Part D of the EEOICPA has been completed, and that the Secretary of Energy accepted the Panel’s affirmative determination of [Employee]‘s pulmonary fibrosis due to exposure to a toxic substance at a DOE facility.  The file contains [Employee]‘s death certificate listing the causes of death as cardiogenic shock and pneumonia, the medical opinion of Dr. Kalindi Narayan concluding that pulmonary fibrosis contributed to the employee’s death, and a copy of your marriage certificate.  This evidence establishes your entitlement to basic survivor benefits under Part E of the EEOICPA.

The Final Adjudication Branch hereby finds that [Employee] was a DOE contractor employee with pulmonary fibrosis due to exposure to a toxic substance at a DOE facility; and that you are the eligible survivor of [Employee].  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation in the amount of $125,000 under Part E of the EEOICPA.  Adjudication of your potential entitlement to additional compensation is deferred until after the effective date of the Interim Final Regulations.

Sidne M. Valdivieso

Hearing Representative

Claim for cancer under Part E

EEOICPA Fin. Dec. No. 10009704-2007 (Dep’t of Labor, February 22, 2010)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above-captioned claim for compensation under 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, the claim for benefits based on lymphoma is denied under Part E of EEOICPA.  

STATEMENT OF THE CASE

On March 19, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted pulmonary fibrosis and lymphoma due to his employment as a uranium miner.  On May 11, 2004, he also filed a Request for Review by Physicians Panel with the Department of Energy (DOE) under former Part D of EEOICPA for pulmonary fibrosis and lymphoma.  With the repeal of Part D and the enactment of Part E, the employee’s Part D claim was treated as a claim for benefits under Part E. 

On August 16, 2002, FAB issued a final decision accepting the claim under Part B for pulmonary fibrosis and awarded the employee $50,000.00 in lump-sum compensation.  In that decision, FAB noted that the Department of Justice (DOJ) confirmed that the employee was an award recipient under section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210 note, for the condition of pulmonary fibrosis.  On May 21, 2007, FAB issued another final decision that accepted the claim for pulmonary fibrosis, this time under Part E, and awarded the employee medical benefits under Part E for that covered illness.  On November 3, 2008, FAB also issued a final decision that awarded the employee impairment benefits under Part E based on his accepted pulmonary fibrosis; the award of $142,500.00 was for his 57% whole body impairment.

In support of his Part E claim for lymphoma, the employee submitted an employment history on Form EE-3, showing that he had worked as a miner for Kerr-McGee at the KerMac 24 Mine in Grants, New Mexico, from approximately September 1, 1959 to March 1, 1960, and for Phillips Petroleum/Sandstone at the Ambrosia Lake Mine, from approximately March 1, 1960 to November 30, 1960.  DOJ submitted employment evidence it had collected in connection with his RECA claim, including an Itemized Statement of Earnings from the Social Security Administration and a Uranium Miner’s study, both of which verified that the employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960.  The employee also submitted a pathology report, dated November 10, 1998, in which Dr. Glenn H. Segal diagnosed B-cell non-Hodgkin’s lymphoma involving bone marrow.  He also submitted a November 18, 1998 report in which Dr. Jo-Ann Andriko confirmed the diagnosis of malignant lymphoma.

The district office reviewed source documents used to compile the U. S. Department of Labor’s Site Exposure Matrices (SEM)[1]to determine whether it was possible that, given the employee’s labor category and the work processes in which he was engaged, he was exposed to a toxic substance in the course of his employment that has a causal link with his claimed lymphoma.  The district office determined that SEM did not have such a link and by letters dated August 14, 2009, and September 14, 2009, it advised the employee that there was insufficient evidence to establish that exposure to a toxic substance at a DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma.  The district office requested that he provide further evidence of the link necessary to support his claim and afforded him 30 days to provide the requested evidence.  In response, on October 13, 2009, he submitted a letter in which he stated that his lymphoma was the result of his employment as a uranium miner.  The letter was accompanied by the following documents: 

1.      An article entitled “Radon Exposure and Mortality Among White and American Indian Uranium Miners:  An Update of the Colorado Plateau Cohort.”

2.      An article entitled “Radiation Exposure Tied to Lymphoma Risk in Men.”

3.      An article entitled “Occupational Exposures and Non-Hodgkin’s Lymphoma:  Canadian Case-Control Study.”

4.      An article on non-Hodgkin’s lymphoma.

5.      An abstract from the update of mortality from all causes among white uranium miners from the Colorado plateau study group.

6.      A section from the Federal Register Notice regarding changes to the dose reconstruction target organ selection for lymphoma under EEOICPA.

7.      A letter dated August 17, 2001 in which Dr. Thomas P. Hyde opined that it was highly likely that the employee’s lymphoma was caused by his exposure to radiation during his employment as a uranium miner.

To determine the probability of whether the employee contracted cancer in the performance of duty under Part E due to radiation, the district office referred his claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  On November 10, 2009, the district office received the final NIOSH Report of Dose Reconstruction and used the information provided in that report to determine the probability of causation (PoC).  The district office calculated that there was a 17.10% probability that the employee’s lymphoma was caused by radiation exposure at the uranium mines in which he worked.

On December 10, 2009, the district office issued a recommended decision to deny the employee’s Part E claim for lymphoma on the ground that it was not “at least as likely as not” (a 50% or greater probability) that his lymphoma was caused by his employment at the uranium mines where he worked.  The district office further concluded that there was no evidence meeting the “at least as likely as not” causation standard that exposure to a toxic substance other than radiation at either a DOE facility or a section 5 mine was a significant factor in aggravating, contributing to or causing the claimed illness of lymphoma. 

Following issuance of the recommended decision, FAB independently analyzed the information in the NIOSH report and confirmed the district office’s PoC calculation of 17.10%.  Based on a thorough review of the case file, FAB hereby makes the following:

FINDINGS OF FACT

1.      The employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960.

2.      He was diagnosed with lymphoma on November 10, 1998.

3.      Based on the dose reconstruction performed by NIOSH, the PoC (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the employee’s lymphoma was 17.10%, which is less than 50%.

4.      There is insufficient evidence in the file to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing the employee’s lymphoma.

Based on a review of the aforementioned facts, FAB also hereby makes the following:

CONCLUSIONS OF LAW

Part E of EEOICPA provides compensation to covered DOE contractor employees who have contracted a “covered illness” through exposure at a DOE facility in accordance with § 7385s-2.  Section 7385s(2) defines a “covered DOE contractor employee” as any DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure at a DOE facility, and § 7385s(2) defines a “covered illness” as an illness or death resulting from exposure to a toxic substance.  Pursuant to 42 U.S.C. § 7385s-5(2), a section 5 uranium worker determined under § 7385s-4(c) to have contracted a covered illness through exposure to a toxic substance at a section 5 mine or mill will be eligible for Part E benefits to the same extent as a DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure to a toxic substance at a DOE facility. 

To establish eligibility for benefits for radiogenic cancer under Part E of EEOICPA, an employee must show that he or she has been diagnosed with cancer; was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and that the cancer was at least as likely as not related to exposure to radiation at a DOE facility or a RECA section 5 facility.  Section 30.213 of the implementing regulations (20 C.F.R. § 30.213(c) (2009)) states that:

The Office of Workers’ Compensation Programs (OWCP) also uses the Department of Health and Human Services (HHS) regulations when it makes the determination required by § 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if “it is at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to or causing the employee’s radiogenic cancer claimed under Part E of the Act.  For cancer claims under Part E of the Act, if the PoC is less than 50% and the employee alleges that he was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part.

FAB notes that the PoC calculations in this case were performed in accordance with 20 C.F.R. § 30.213.  FAB independently analyzed the information in the NIOSH report, confirming the district office’s PoC calculation of 17.10%.

Section 30.111(a) of the regulations states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.”  20 C.F.R. § 30.111(a).  As found above, the case file does not contain sufficient evidence to enable the employee to meet his burden of proof to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma.

In the absence of evidence to support that it is at least as likely as not that exposure to a toxic or radiological substance at a DOE facility or a RECA section 5 facility was a significant factor in aggravating, contributing to, or causing his lymphoma, FAB concludes that the employee has failed to establish that he contracted the “covered illness” of lymphoma, and his claim under Part E of EEOICPA is denied.

Kathleen M. Graber

Hearing Representative

Final Adjudication Branch

[1]  SEM is a database of occupational categories, the locations where those occupational categories would have been performed, a list of process activities at the facility and the locations where those processes occurred, a list of toxic substances and the locations where those toxic substances were located, and a list of medical conditions and the toxic substances associated with those conditions. 

Definition of

EEOICPA Fin. Dec. No. 10086042-2010 (Dep’t of Labor, June 22, 2010)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the above-noted claim for compensation under 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, the claim for medical benefits due to choroid melanoma of the left eye, based on exposure to non-ionizing radiation, is accepted under Part E of EEOICPA.  The claim for choroid melanoma of the left eye under Part B is deferred pending completion of a radiation dose reconstruction. 

STATEMENT OF THE CASE

On September 9, 2009, the employee filed a Form EE-1 claiming benefits under EEOICPA for choroid melanoma.  On a Form EE-3, Employment History, he indicated he was employed as a welder by Union Carbide at the Oak Ridge Gaseous Diffusion Plant (K-25) from September 1967 to July 1974.  The Oak Ridge Institute for Science and Education (ORISE) database verified his contractor employment as a welder at K-25 from September 18, 1967 to July 5, 1974.  K-25 is a covered Department of Energy (DOE) facility.[1]

DOE provided the employee’s available personnel and medical records.  A November 3, 1969 medical report noted conjunctivitis (flash burns) to his eyes after performing his regular welding duties and noted he had suffered previous flash burns.  An incident report, dated December 18, 1969, diagnosed flash burns to his eyes after welding at K-25 and again noted he had previous burns to his eyes.  A September 1, 2009 letter, signed by the employee’s physician, listed a diagnosis of choroidal melanoma of the left eye.

On October 5, 2009, the employee completed an Occupational History Questionnaire in which he identified areas in which he worked (K-1401, K-1410, K-1420), his job title (welder), and some of the toxic substances to which he may have been exposed in the course of his employment (including beryllium, cadmium, chromium, lead, manganese, etc.).

To determine his exposure to ionizing radiation, the district office referred the employee’s application package to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction.  The reconstruction is still being completed.

The district office reviewed source documents used to compilethe U. S. Department of Labor’s Site Exposure Matrices (SEM) to determine whether or not it is possible that, given the employee’s labor category and the work processes engaged in, he was exposed to a toxic substance in the course of employment that corresponds to the claimed medical condition.  The SEM search failed to establish a known causal link between melanoma and exposure to any toxic substance.

The district office sent the employee’s records to a district medical consultant (DMC) for review.  In an April 26, 2010 report, the DMC concluded that it was “at least as likely as not” that exposure to toxic substances at the covered facility was a significant factor in causing, contributing to, or aggravating the employee’s choroidal melanoma of the left eye.  The DMC noted that a recognized risk factor for ocular melanoma is ultraviolet light exposure and there is growing scientific literature which includes case-control epidemiologic studies and meta-analysis that supports that work as a welder increases risk for ocular melanoma, particularly if multiple burns of the eyes occur.  The DMC noted that high energy welding processes can generate intense ultraviolet light and the welding-related burns, which can occur in the eyes or skin, are sometimes called flash burns.  The DMC noted that the time between his documented flash burns to the eyes to diagnosis of the eye melanoma is a sufficient latency period for the cancer to occur from worksite exposures.

On May 20, 2010, the Jacksonville district office issued a recommended decision recommending acceptance of the claim for medical benefits under Part E for choroid melanoma of the left eye.  The recommended decision informed the employee that he had 60 days to file any objections.  On May 27, 2010, FAB received written notification that the employee waived any and all objections to the recommended decision.  On June 18, 2010, FAB received the employee’s signed statement verifying that he had not received any settlement or award from a lawsuit related to toxic exposure at the covered facility or workers’ compensation claim in connection with choroid melanoma of the left eye, and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

In light of the above, the undersigned hereby makes the following:

FINDINGS OF FACT

1.         On September 9, 2009, the employee filed a claim for benefits under EEOICPA based on choroid melanoma.

2.         The employee was initially diagnosed with choroid melanoma of the left eye on September 1, 2009.

3.         The employee was a DOE contractor employee at K-25 from September 18, 1967 to July 5, 1974.

4.         There is a causal relationship between toxic exposure at K-25 and the employee’s choroid melanoma of the left eye.

Based on the above findings of fact, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA 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.  20 C.F.R. § 30.316(a) (2010).

Under Part E, a “covered illness” means an illness or death resulting from exposure to a toxic substance.  A “toxic substance” means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.  20 C.F.R. § 30.5(ii).  Non-ionizing radiation in the form of radio-frequency radiation, microwaves, visible light, and infrared or ultraviolet light radiation is a toxic substance under Part E.[2] 

Under Part B, radiation is defined only as ionizing radiation in the form of alpha particles, beta particles, neutrons, gamma rays, X-rays, or accelerated ions or subatomic particles from accelerator machines.  42 U.S.C. § 7384l(16).  A NIOSH radiation dose reconstruction is required to determine the probability that ionizing radiation exposure during the performance of duty caused an employee’s cancer.  However, EEOICPA does not require a dose reconstruction to determine if non-ionizing radiation exposure caused an employee’s cancer under Part E.  20 C.F.R. § 30.213(c).

The evidence establishes that 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 employee’s choroid melanoma of the left eye.  The employee was a DOE contractor employee with choroid melanoma of the left eye due to exposure to a toxic substance at a DOE facility.  Therefore, I hereby conclude that the employee is entitled to medical benefits for choroid melanoma of the left eye, effective September 9, 2009, under Part E of EEOICPA.

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

[1]  See DOE’s facility list on the agency website at:  http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (Retrieved June 21, 2010).

[2] Federal (EEOICPA) Procedure Manual, Chapter 0-0500.2(ss) (November 2008).

Exposure to

EEOICPA Fin. Dec. No. 20858-2006 (Dep’t of Labor, June 30, 2006)

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 of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act)For the reasons set forth below, your claims are accepted in part and denied in part. 

STATEMENT OF THE CASE

You each filed a Form EE-2, Claim for Survivor Benefits.  A claim was also filed by [Claimant #8], but he died on April 21, 2005 before adjudication was complete.  You stated on the Forms EE-2 that you were filing for the lung and throat cancer of your late father, [Employee], hereinafter referred to as “the employee.”  The death certificate and affidavits establish that the employee was diagnosed with lung cancer in approximately June 1959.  The employee’s death certificate shows lung cancer as the cause of death on June 13, 1961.  There is no medical evidence supporting a diagnosis of throat cancer.

On the Form EE-3, Employment History, you stated the employee was employed sometime in the 1940s as a machinist with the Manhattan Project in Oak Ridge, Tennessee.  The district office verified that the employee worked for Tennessee Eastman Corporation (TEC) at the Y-12 plant[1] for the period of December 27, 1943 to August 29, 1946. 

On July 16, 2002, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  On September 26, 2005, NIOSH returned your case to the district office.  Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947. 

In support of your claims for survivorship, you submitted the death certificate of the employee, and a copy of the death certificate of the employee’s spouse.  In addition, you submitted evidence that you are the children of the employee, along with documentation of legal name changes.

On March 20, 2006, the Seattle district office issued a recommended decision, concluding that you are entitled to lump-sum compensation as eligible survivors under Part B of the Act, that [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are eligible survivors under Part E, and [Claimant #2], [Claimant #3], and [Claimant #7] are not eligible survivors under Part E of the Act.  The district office also recommended that the claim for throat cancer be denied.  On May 27, 2006, the Final Adjudication Branch issued a final decision, denying compensation to [Claimant #2], [Claimant #3], and [Claimant #7] under Part E of the Act. 

You each verified that neither you nor the employee filed a lawsuit or a state workers’ compensation claim or received a settlement, award, or benefit for the claimed conditio

The Final Adjudication Branch received written notification that you each waived any and all objections to the recommended decision. 

FINDINGS OF FACT

  1. You each filed a Form EE-2, Claim for Survivor Benefits.
  2. The employee was diagnosed with lung cancer in approximately June 1959.
  3. The employee was employed at the Y-12 plant in Oak Ridge, Tennessee, from December 27, 1943 to Au gust 29, 1946.
  4. You are each the employee’s child.  [Claimant #1]‘s birth date is [Date of Birth]; [Claimant #4]‘s birth date is [Date of Birth]; [Claimant #5]‘s birth date is [Date of Birth]; and [Claimant #6]‘s birth date is [Date of Birth].  The employee’s spouse is no longer living.  [Claimant #4] and [Claimant #6] were enrolled in college full-time and continuously from the age of 18 through the date of the employee’s death on June 13, 1961.
  5. The employee’s lung cancer caused his death.
  6. The employee was 50 years old at the time of his death and died 15 years before his normal retirement age of 65 years.

CONCLUSIONS OF LAW

I have reviewed of the evidence of record and the recommended decision.

On June 5, 2006, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a bulletin establishing supplemental guidance for processing claims for the SEC class at the Y-12 Plant from March 1943 to December 1947.[2]  This directive supplements the guidance provided for making a determination that the employee performed work in uranium enrichment operations or other radiological activities for more than 250 days at the Y-12 plant.[3]  Attachment 1 of the bulletin lists occupational titles for Y-12 employees involved in Uranium Enrichment Processes.  The employment evidence of record, specifically the report from the Oak Ridge Institute for Science and Education (ORISE) database and Department of Energy (DOE) records, indicates that the employee was classified as a “maintenance mechanic” from December 27, 1943 to April 1, 1944; as a “millwright” from April 2, 1944 to December 8, 1945; as a “vacuum service mechanic” from December 9, 1945 to January 12, 1946; and as a “millwright” from January 13, 1946 to August 29, 1946.  However, the employee’s job titles are not on the list.[4] 

The DEEOIC notes that the Y-12 facility had building locations where uranium enrichment operations or other processes relating to radiological material were conducted.  Employees performing non-uranium enrichment duties that were routinely present within the buildings or areas where uranium enrichment operations occurred are also considered part of the SEC class.  Department of Energy (DOE) records include a clinical record for the employee listing each time he went to the employee health unit for treatment while employed by the Tennessee Eastman Corporation.  Several treatments list a building number (9204-4).  Building 9204-4 is acknowledged to be a Beta building where the calutron was located and uranium enrichment occurred.  The Final Adjudication Branch performed a search of the U. S. Department of Labor Site Exposure Matrices (SEM).  Source documents used to compile the SEM establish that the labor category of “millwright” at Y-12 could potentially be exposed to the toxic substance of uranium tetrafluoride.  The SEM contains a list of processes performed by this labor category, which includes uranium recovery, purification, and recycle operations.

The evidence shows that the employee worked at the Y-12 plant in Oak Ridge, Tennessee from December 27, 1943 to August 29, 1946, and as a millwright from April 2, 1944 to December 8, 1945 and from January 13, 1946 to August 29, 1946, which equals more than 250 days during the SEC class period, and that he was involved in uranium enrichment operations and other radiological activities.  Therefore, the employee qualifies as a member of the SEC.

The employee was diagnosed with lung cancer which is a “specified cancer” pursuant to 42 U.S.C. § 7384l(17)(A) and 20 C.F.R. § 30.5(ff)(2).  You meet the definition of survivors under Part B of the Act.  42 U.S.C. § 7384s(e)(B).  Therefore, you are entitled to compensation of $150,000 for the employee’s lung cancer, to be divided equally.  42 U.S.C. § 7384s(a).  The exact payment amounts may vary by one penny, as the total compensation may not exceed $150,000.

The employee was an employee of a DOE contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  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), 7385s(2). 

[Claimant #1] was 14 at the time of the employee’s death.  [Claimant #4] was 19 at the time of the employee’s death and enrolled full-time in school.  [Claimant #5] was 11 at the time of the employee’s death.  [Claimant #6] was 21 at the time of the employee’s death and enrolled full-time in school.  Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] each meet the definition of a covered child under Part E of the Act.  42 U.S.C. § 7385s-3(d)(2).  Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to benefits in the amount of $125,000 for the employee’s death related to lung cancer, to be divided equally.  42 U.S.C. § 7385s-3(a)(1).

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of his death through and including the calendar year in which he would have reached normal retirement age.  20 C.F.R. § 30.815 (2005).  This equals 14 years of wage-loss.  Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to share an additional $25,000 for the employee’s wage-loss, for a total award of $150,000.  42 U.S.C. § 7385s-3(a)(2).

I also conclude that there was no medical evidence submitted to establish that the employee was diagnosed with the claimed condition of throat cancer, and the claims for that condition must be denied.  20 C.F.R. §§ 30.211, 30.215.

Jacksonville, Florida

Sidne M. Valdivieso

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at: http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm., the Y-12 plant is a covered DOE facility from 1942 to the present.  Tennessee Eastman Corporation (TEC) was a DOE contractor at this facility from 1943 to 1947.  (Retrieved June 30, 2006).

[2] EEOICPA Bulletin No. 06-11 (issued June 5, 2006). 

[3] EEOICPA Bulletin No. 06-04 (issued November 21, 2005).

[4] EEOICPA Bulletin No. 06-11 (issued June 5, 2006).

EEOICPA Fin. Dec. No. 10016501-2007 (Dep’t of Labor, May 7, 2007)

NOTICE OF FINAL DECISION 

This is the final 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.  For the reasons set forth below, the FAB reverses the recommended decision of the district office and accepts the claim under Part E of EEOICPA for medical benefits based on the covered illness of brain tumor (meningioma).  

STATEMENT OF CASE

On December 18, 2002, [Employee] filed a claim for benefits under Part B and the former Part D of EEOICPA claiming he developed a brain tumor, diagnosed in February of 1993, as the result of his work at a Department of Energy (DOE) facility.  On October 28, 2004, Part E of EEOICPA was enacted when Congress repealed Part D.  [Employee] alleged on his Form EE-3 that he was employed as a Hazard Reduction Technician (HRT) from April 14, 1984 to the date of his signature (December 18, 2002) at the Rocky Flats Plant.[1] DOE confirmed his employment at the Rocky Flats Plant from April 16, 1984 to January 15, 2003.

[Employee] submitted medical records in support of his claim.  Included in these medical records were several surgical pathology reports, MRI reports and medical narratives, which document he was diagnosed with meningioma (a non-cancerous brain tumor) in February 1993 at the age of 31.  Then, he developed several recurrences of the initial meningioma as well as new lesions in other parts of his brain.  Notably, his tumors were always referred to in these records as being “atypical, aggressive, and skull-based” and have resulted in his loss of hearing and other neurological deficits.     

On May 14, 2003, FAB issued a final decision denying [Employee]‘s claim under Part B of EEOICPA, because non-cancerous tumors of the brain are not compensable “occupational” illnesses under that Part.

In September 2006, the district office initiated development of [Employee]‘s claim under Part E.  Under that Part, once the medical evidence substantiates a diagnosis of a claimed condition, the district office proceeds with a causation analysis to make a determination as to whether there is a causal connection between that condition and exposure to a toxic substance or substances at a DOE facility.  The standard by which causation between an illness and employment is established is explained in Federal (EEOICPA) Procedure Manual Chapter E-500.3b:

Causation Test for Toxic Exposure.  Evidence must establish that there is a relationship between exposure to a toxic substance and an employee’s illness or death.  The evidence must show that it is “at least as likely as not” that such exposure at a covered DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness or death, and that it is “at least as likely as not” that exposure to a toxic substance(s) was related to employment at a DOE facility.

To assist employees in meeting this standard, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) undertakes a variety of steps to collect necessary information to show that a claimed illness is linked to a toxic exposure.   Principally, DEEOIC has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers.  This data has been organized into the Site Exposure Matrices (SEM).  SEM allows DEEOIC claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. 

In addition to the SEM data, DEEOIC works directly with DOE to collect individual employee exposure and medical records.  Contact is also made in certain situations to obtain information from Former Worker Screening Programs or trade groups that may have relevant exposure or medical information.   Relevant specialists in the areas of industrial hygiene and toxicology are also utilized in certain situations to evaluate and render opinions on claims made by employees.  DEEOIC also works directly with treating physicians or other medical specialists in an effort to obtain the necessary medical evidence to satisfy the causation standard delineated under EEOICPA. 

On September 20, 2006, the district office notified [Employee] that after conducting extensive research, they had been unable to establish a causal connection between the development of his meningioma and exposure to a toxic substance or substances at the Rocky Flats Plant.  He was afforded a period of 30 days to provide factual or medical evidence that established such a link.  

On October 17, 2006, the district office received a letter from [Employee]‘s authorized representative, in which he indicated that he believed that [Employee]‘s exposure to plutonium and his work in the glove boxes where he was exposed to radiation contributed to the development of his brain tumor.  He requested a copy of the file, which was provided by the district office on November 14, 2006.

On December 4, 2006, a letter was received from [Employee]‘s representative, in which he detailed several instances, based on his review of [Employee]‘s exposure records, when he had experienced plutonium contamination.

Subsequently, on January 31, 2007, the district office issued a recommended decision to deny the claim under Part E of EEOICPA, finding that the evidence of record was not sufficient to establish a causal relationship between the development of [Employee]‘s meningioma and his exposure to toxic substances at the Rocky Flats Plant.  The recommended decision was then forwarded to FAB for review.

[Employee]‘s representative requested an oral hearing on February 12, 2007, and reiterated his contention that [Employee]‘s exposure to radiation had contributed to the development of his meningioma.  By letter dated February 27, 2007, the representative provided results of his research into the relationship between the development of meningioma and exposure to radiation.  He referenced fourteen medical articles that suggested such a relationship existed.

Upon review of the record, FAB determined that based on the contamination records in the file; [Employee]‘s age at the time of diagnosis; his length of exposure to radiation at the time of diagnosis; the location of his meningiomas, the description of his meningiomas as being atypical, aggressive and skull-based; and the fact that the medical literature appears to support a relationship between exposure to radiation and the development of these types of tumor, that [Employee]‘s record should be referred to a DEEOIC toxicologist.   

On April 11, 2007, a statement of accepted facts detailing [Employee]‘s employment dates, labor categories, the work processes he had been engaged in, the buildings that he worked in, his exposure history, the number of positive contamination events he had experienced with resulting acute intakes of plutonium, as well as his medical and case history was referred to a toxicologist. The toxicologist was asked to provide an opinion as to whether there was current scientific and/or medical evidence supporting a causal link between exposure to radiation and the development of meningioma and, if so, whether based on the specifics of [Employee]‘s case, it is as likely as not that his exposure to radiation at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating his meningioma.

On April 26, 2007, the toxicologist stated that the scientific and medical literature does support a “causal” relationship between ionizing radiation and meningiomas at levels below 1 siever (SV). Further, she opined with a reasonable degree of scientific certainty “[t]hat it is as likely as not that exposure to a toxic substance at a DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness, and that it is ‘at least as likely as not’ that exposure to a toxic substance was related to employment at a DOE facility.”

On May 7, 2007, [Employee] affirmed he had never filed for or received any benefits for meningioma associated with a tort suit or state workers’ compensation claim.  Additionally, he stated that he had never pled guilty to or been convicted of any charges of fraud in connection with a state or federal workers’ compensation claim.

After a careful review of the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. On December 18, 2002, [Employee] filed a claim under Part E of EEOICPA for a brain tumor.
  1. [Employee] was employed by DOE contractors from April 16, 1984 to January 15, 2003 at the Rocky Flats Plant, a covered DOE facility.
  1. During [Employee]‘s employment he was exposed to ionizing radiation.
  1. [Employee] was diagnosed with meningioma, a non-cancerous tumor of the brain, after he began his employment at the Rocky Flats Plant.
  1. The evidence of record supports a causal relationship between the development of [Employee]‘s meningioma and exposure to ionizing radiation at the Rocky Flat Plant.
  1. Ionizing radiation is as least as likely as not a significant factor in causing, contributing to, or aggravating [Employee]‘s meningioma. 

Based on the above-noted findings of fact in this claim, FAB hereby also makes the following:

CONCLUSIONS OF LAW

Pursuant to the regulations implementing EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a). 

FAB received the letter of objection and request for an oral hearing.  A hearing was scheduled, but upon review of the evidence in the case file, FAB determined the claim was not in posture for a final decision and required a review by a toxicologist.  Based on this review, the recommended decision is hereby reversed and [Employee]’s claim for meningioma is accepted.  On May 7, 2007, he submitted a written statement affirming that he agreed with the final decision to reverse the recommended decision and to accept his claim for meningioma.

FAB concludes that [Employee] is a covered DOE contractor employee with a covered illness who contracted that illness through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(c).  Therefore, [Employee]‘s claim under Part E is accepted and he is awarded medical benefits for the treatment of meningioma pursuant to 42 U.S.C. § 7385s-8.

Denver, CO

Paula Breitling

Hearing Representative

Final Adjudication Branch

[1] According to DOE’s website at:  http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm, the Rocky Flats Plant in Golden, Colorado is a covered DOE facility from 1951 to the present.

EEOICPA Fin. Dec. No. 10036412-2006 (Dep’t of Labor, June 13, 2007)

NOTICE OF FINAL DECISION

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.  For the reasons set forth below, the claim for compensation filed by [Claimant] is accepted under Part E and she is awarded $125,000.00 plus an additional $25,000.00 in survivor benefits.

STATEMENT OF THE CASE

On July 1, 2005, [Claimant] filed a claim for survivor benefits under Part E of EEOICPA as the spouse of the employee.  She identified heart bypass surgery and diabetes, Type II, as the conditions resulting from the employee’s work at a Department of Energy (DOE) facility.  A representative from DOE verified the employee’s work as a physicist for the University of California at the Lawrence Livermore National Laboratory (LLNL) from September 1, 1955 to July 25, 1988, and that he was also present at the Nevada Test Site, the Salmon Site, the Gasbuggy Site and Amchitka Island.[1]

The evidence of record includes a June 20, 1985 electrocardiogram report in which Dr. Calder Burton diagnosed an anteroseptal myocardial infarction.  It also includes a January 20, 1986 consultation report in which Dr. Rory O’Connor related a history of diabetes mellitus, LLNL medical records with a diagnosis of diabetes mellitus as early as November 4, 1976, and a June 18, 1985 hospital record noting the [Employee] was admitted on June 18, 1985 for diabetes mellitus, angina pectoris and coronary artery disease.

A copy of the employee’s death certificate showed that he died on July 29, 1988 at the age of 54, and that [Claimant] was the employee’s spouse at the time of his death.  A copy of a marriage certificate indicates that [Claimant] and the employee were married on September 1, 1956.  The death certificate, signed by Dr. M.T. McEneny, identified the immediate cause of the employee’s death as myocardial infarction and coronary artery disease.  Based on the employee’s date of birth of March 22, 1934, his normal retirement age under the Social Security Act would have been 65.

On July 26, 2006, FAB issued a final decision and remand order, denying the claim filed by [Employee’s Daughter] on the ground that she was an ineligible survivor and vacating and remanding the decision denying [Claimant]‘s claim under Part E.  FAB directed the district office to further develop the likelihood of the employee’s exposure to carbon disulfide, and further explore the link between his heart conditions and his LLNL employment.

Source documents in the U.S. Department of Labor’s Site Exposure Matrices (SEM) show that carbon disulfide and lead were present at LLNL.  The SEM is a database of occupational categories, the locations where those occupational categories would have performed their duties, a list of process activities at the facility and the locations where those processes occurred, a list of toxic substances and the locations where those toxic substances were located, and a list of medical conditions and the toxic substances associated with those conditions.  SEM did not show a connection between the toxic substances of carbon disulfide and lead and the employee’s heart conditions.

On August 15, 2006, the district office referred the file to a District Medical Consultant (DMC) to determine if the employee’s work history and potential exposure to toxic substances at a DOE facility show that it is “at least as likely as not” that the toxic substances were a significant factor in causing, contributing to, or aggravating his coronary artery disease, myocardial infarction or diabetes mellitus.  In a September 2, 2006 report, the DMC concluded that, pending further information on the employee’s exposure to carbon disulfide, the medical evidence of record did not establish that it was “at least as likely as not” that exposure to toxic substances was a significant factor in causing, contributing to, or aggravating the employee’s coronary artery disease, myocardial infarction or diabetes mellitus.

On October 1, 2006, the district office forwarded a synopsis of the claim to an Industrial Hygienist for an opinion on the parameters of the employee’s exposure to carbon disulfide and lead while he was employed as a physicist at LLNL or while he was present on site at the Nevada Test Site, Salmon Site, Gasbuggy Site and Amchitka Island.  On December 7, 2006, the district office followed up by referring the entire file to the Industrial Hygienist for this purpose.

On November 6, 2006, the district office sent [Claimant] a letter requesting factual or medical evidence which would establish that the employee’s coronary artery disease, myocardial infarction or diabetes mellitus have a known link to exposure to toxic substances.  On December 6, 2006, the district office received her submission of medical studies indicating that exposure to carbon disulfide contributes to atherosclerotic disease.  [Claimant]‘s authorized representative stated that the employee’s job duties as a physicist at LLNL in the 1970s required him to work in the area of a shale oil retort, a process that results in the release of carbon disulfide in excess of the threshold level for exposure.

On February 28, 2007, the district office received a report in which the Industrial Hygienist concluded that the employee’s duties as a physicist did not involve work that would have exposed him to lead.  The Industrial Hygenist noted that LLNL was tasked with researching and developing methods for the extraction (or “retorting”) of oil shale in the 1970s, and that LLNL focused in particular on underground methods of production and extraction.  The Industrial Hygenist determined that the employee’s expertise in the physics of chimney formation, underground chamber formation and stability made it likely that he would have been involved in the gas production research and the shale oil research, both on site and off.  The employee’s exposure to carbon disulfide and other sulfur-containing chemicals would have been low to moderately high during the time he spent operating shale oil retort facilities, and would not have been during major periods of each year.  The primary route for exposure was through inhalation.

On April 4, 2007, the district office forwarded the Industrial Hygenist’s report to the DMC.  On April 12, 2007, the DMC determined that, given the employee’s work history and exposure to carbon disulfides, it was “at least as likely as not” that the exposures were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction.  The DMC also determined that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

On April 27, 2007, the Jacksonville district office issued a recommended decision finding that the employee was employed at a DOE facility by DOE contractors; that the employee’s death was caused by coronary artery disease and myocardial infarction; that the employee’s normal retirement age would have been 65, and that it was “at least as likely as not” that the employee contracted his conditions of coronary artery disease and myocardial infarction through work-related exposure to a toxic substance at a DOE facility under Part E.   The district office also recommended that [Claimant] be awarded $125,000.00 plus an additional $25,000.00 in survivor benefits under Part E of EEOICPA.

On May 14, 2006, FAB received [Claimant]‘s signed waiver of her right to object to any of the findings of fact or conclusions of law contained in the recommended decision.  On the same date, the district office received her signed statement advising that neither she nor the employee had filed any lawsuits or received any settlements or awards in connection with the conditions claimed under EEOICPA, and that neither she nor the employee had ever filed for or received an award of state workers’ compensation for the claimed conditions.

Following a review of the evidence of record, the undersigned hereby makes the following:

FINDINGS OF FACT

  1. On July 1, 2005, [Claimant] filed a claim for survivor benefits under Part E of EEOICPA as the spouse of the employee. 
  1. [Claimant] identified heart bypass surgery and diabetes, Type II, as the conditions resulting from the employee’s work at a DOE facility.
  1. The employee worked as a physicist for the University of California at LLNL from September 1, 1955 to July 25, 1988, and he was also present at the Nevada Test Site, the Salmon Site, the Gasbuggy Site and Amchitka Island.
  1. On June 18 and 20, 1985, the employee was diagnosed with coronary artery disease and a myocardial infarction.  On November 4, 1976, the employee was diagnosed with diabetes mellitus.  These dates are after he began work at a covered DOE facility.
  1. The employee died on July 29, 1988 at the age of 54 and the immediate cause of the employee’s death was coronary artery disease and myocardial infarction.
  1. [Claimant] was married to the employee on September 1, 1956, and she was the employee’s spouse at the time of his death.
  1. On April 12, 2007, a DMC concluded that it was “at least as likely as not” that the employee’s exposures to toxic substances at DOE facilities were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction. 
  1. The DMC also determined that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.
  1. The employee’s normal retirement age would have been 65, based on his birth date of March 22, 1934.  As he died at age 54, the employee died more than ten years but less than 20 years before his normal retirement age.
  1. Neither [Claimant] nor the employee have ever filed a lawsuit or received a payment from a lawsuit, or ever filed for or received any state workers’ compensation benefits for the conditions claimed under EEOICPA.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA 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.  20 C.F.R. § 30.316(a).  [Claimant] has waived her rights to file objections to the findings of fact and conclusions of law in the recommended decision.

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a covered illness through exposure to toxic substances at a DOE facilityThe term “covered illness” means an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2)The employee’s work for the University of California at LLNL from September 1, 1955 to July 25, 1988 establishes that the employee was a DOE contractor employee, as defined by 42 U.S.C. § 7384l(11).

In order to be entitled to benefits under Part E of EEOICPA, [Claimant] must provide medical evidence that establishes a specific diagnosis and the date of that diagnosis.  She must also submit evidence that establishes a reasonable likelihood of [Employee]‘s occupational exposure to a toxic substance at a DOE facility prior to the diagnosis of the claimed condition.  Finally, she must establish that there is a relationship between his exposure to a toxic substance and the claimed medical condition such that it can be concluded that exposure to a toxic substance during employment by a DOE contractor at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to, or causing the claimed medical condition.  See 42 U.S.C. § 7385s-4(c), 20 C.F.R. §§ 30.230 to 30.232.

The survivor of a DOE contractor employee will receive $125,000.00 if the employee would have been entitled to compensation under § 7385s-4 for a covered illness, 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 such employee.  42 U.S.C. § 7385s-3(a)(1).

As noted above, the file was submitted to a DMC who gave his opinion that, based on information received from an Industrial Hygenist about the employee’s exposure to carbon disulfide in the course of his employment at a DOE facility, it was “at least as likely as not” that the exposures were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction.  The DMC also concluded that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

Based upon the totality of evidence including the employee’s employment history, his medical evidence of record, and the DMC’s report, FAB concludes that the evidence of record establishes that it is “at least as likely as not” that the employee’s occupational exposure to a toxic substance during covered employment was a significant factor in aggravating, contributing to, or causing the employee’s myocardial infarction and coronary artery disease.  The evidence of record is not sufficient to establish that it is “at least as likely as not” that the employee’s work exposure to a toxic substance during covered employment was a significant factor in aggravating, contributing to, or causing the employee’s diabetes mellitus.  See 42 U.S.C. § 7385s-4(c)(1).

The evidence of record therefore establishes that the employee was a DOE contractor employee, and that he was diagnosed with coronary artery disease and myocardial infarction, which are both “covered illnesses” as defined by 42 U.S.C. § 7385s(2).  The employee contracted the covered illnesses through exposure to a toxic substance at a DOE facility.  Therefore, he would have been entitled to benefits under § 7385s-4 for a covered illness.  The employee died on January 13, 1993 and the immediate cause of the employee’s death was listed as coronary artery disease and myocardial infarction.  This is sufficient to establish that 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 employee’s death.

Eligibility for survivor benefits under Part E is delineated at 42 U.S.C. § 7385s-3(c)(1), which provides that such benefits shall be paid to the “covered spouse,” if alive at the time of payment.  Part E defines a “covered spouse” as a “spouse of the employee who was married to the employee for at least one year immediately before the employee’s death.”  42 U.S.C. § 7385s-3(d)(1).  [Claimant] was married to the employee for at least one year immediately before his death and she is therefore his “covered spouse.”  Therefore, she is entitled to $125,000.00 in basic survivor benefits for the employee’s death due to the covered illnesses of coronary artery disease and myocardial infarction.

Under Part E of EEOICPA, the survivor of a covered employee is eligible to receive additional survivor benefits of $25,000.00 if there was an aggregate period of not less than 10 years before the employee attained his or her normal retirement age, during which as the result of any covered illness contracted by that employee through exposure to a toxic substance at a DOE facility the employee’s annual wage did not exceed 50% of the employee’s average annual wage.  The employee in this case died at age 54.  Under the Social Security Act, the normal retirement age for an employee born on March 22, 1934 is 65.  See Federal (EEOICPA) Procedure Manual, Chapter E-800(3)(d)(September 2005).  Therefore, [Claimant] is entitled to additional survivor benefits of $25,000.00.

Accordingly, [Claimant]‘s claim based on the employee’s death due to coronary artery disease and myocardial infarction is accepted, and she is awarded $125,000.00 in basic survivor benefits and an additional $25,000.00, for a total award of $150,000.00.  [Claimant]‘s claim based on the employee’s death due to diabetes mellitus is denied under Part E. 

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

[1] LLNL was a covered DOE facility beginning in 1950 to the present.  DOE and the University of California jointly operate the site.  The Nevada Test Site in Mercury, Nevada is a covered DOE facility from 1951 to the present.  The Salmon Site was a covered DOE facility from 1964 to 1972.  The Gasbuggy Site was a covered DOE facility from 1967 to 1973, 1978, and 1998 to the present (remediation).  Amchitka Island was a covered DOE facility beginning in 1951 to the present.  See DOE’s facility listings at http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/findfacility.cfm (visited  June 12, 2007).

EEOICPA Fin. Dec. No. 10059726-2007 (Dep’t of Labor, December 12, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, your claim under Part E of EEOICPA for sensorineural hearing loss is accepted.

STATEMENT OF THE CASE

On November 9, 2006, the employee filed Form EE-1 claiming for benefits under Parts B and E of EEOICPA for both skin cancer and hearing loss.  On Form EE-3, he claimed he was employed as a machinist, production foreman, general foreman, production shift manager, and machining manager at the Rocky Flats Plant[1] from January 7, 1957 to December 31, 1987.  The Department of Energy (DOE) verified the employee’s employment at the Rocky Flats Plant from January 7, 1957 until December 31, 1987.

In support of his claim, the employee submitted an October 24, 2006 audiology report that diagnosed him with a moderate/severe sensorineural hearing loss bilaterally.  He did not submit any evidence of skin cancer.  On February 19, 2007, the employee stated in a letter that he was withdrawing his claim for skin cancer and that he had concerns about beryllium disease.  However, on August 2, 2007, the employee submitted another letter stating that he did not wish to file a claim for beryllium disease.

On February 22, 2007, the Denver district office of the Division of Energy Employees Occupational Illness Compensation issued a recommended decision to deny the employee’s claim under Part B because he did not establish that he had developed a compensable occupational illness.  In that same recommended decision, the district office also recommended that the employee’s claim under Part E be denied because the evidence did not establish that his hearing loss was caused by exposure to any toxic substances at a DOE facility.  The case then was forwarded to FAB for the issuance of a final decision.

After reviewing the medical evidence, FAB determined that the employee was not diagnosed with conductive hearing loss but rather sensorineural hearing loss, which can be caused by toxic exposure.  The employee’s claim was then referred to a District Medical Consultant (DMC) on August 2, 2007 to determine which toxins could have caused his sensorineural hearing loss.  The DMC determined that carbon tetrachloride and thorium could have caused the employee’s sensorineural hearing loss, and noted that his exposure records at the Rocky Flats Plant showed 20 years of exposure to carbon tetrachloride and 6 years of exposure to thorium.

Based on the DMC’s opinion regarding exposure to toxic substances and the employee’s hearing loss, FAB issued a final decision and remand order on August 8, 2007.  In that decision, FAB denied his claim under Part B for sensorineural hearing loss on the ground that it was not a compensable occupational illness, and remanded his claim under Part E for that same condition to the district offrice for a determination as to whether it was at least as likely as not that the employee’s exposure to carbon tetrachloride and thorium as a machinist was a significant factor in aggravating, contributing to, or causing his hearing loss. 

On October 1, 2007, a copy of the employee’s medical records, employment history including occupational titles, toxic exposure information, and other relevant material was sent to a DMC.  The DMC was also provided with a list of toxic substances to which the employee was exposed in his job as a machinist at the Rocky Flats Plant, including the following organic solvent mixtures:  petroleum solvents, sulfonic acid, chlorinated polyolefins, ethoxylated alcohols, ethylene glycol, substituted indole, hydrocarbons, dimethyl polysiloxane, and carbon tetrachloride.  On October 4, 2007, the DMC opined that the medical evidence suggests that the employee developed his sensorineural hearing loss as a result of exposure to mixed organic solvents.  Specifically, the DMC opined that it is at least as likely as not that his exposure to organic solvent mixtures at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating the claimed condition of sensorineural hearing loss.

The employee submitted a current statement affirming that he had not filed any state workers’ compensation claims, lawsuits, tort suits or received any awards or settlements for the claimed condition and that he had never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any other federal or state workers’ compensation law.

On November 6, 2007, the Denver district office issued a recommended decision to accept the employee’s claim for sensorineural hearing loss under Part E of EEOICPA, after which the case was forwarded to FAB for the issuance of a final decision.  After considering the record of the claim forwarded by the district office, FAB hereby makes the following:

FINDINGS OF FACT

1. On November 9, 2006, the employee filed for benefits under Parts B and E of EEOICPA.=

2. He was employed by DOE contractors from January 7, 1957 until December 31, 1987 at the Rocky Flats Plant, a covered DOE facility. 

3. He was diagnosed with sensorineural hearing loss after he began his employment at the Rocky Flats Plant.

4. On August 8, 2007, FAB issued a final decision denying the employee’s claim under Part B for the condition of sensorineural hearing loss.

5. His employment records show that he was exposed to multiple organic solvent mixtures at the Rocky Flats Plant, specifically carbon tetrachloride.

6. The DMC opined that it is at least as likely as not that the employee’s exposure to organic solvent mixtures at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating the claimed condition of sensorineural hearing loss.

7. The employee submitted a current statement affirming that he had not filed any state workers’ compensation claims, lawsuits, tort suits or received any awards or settlements for the claimed condition and that he had never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any other federal or state workers’ compensation law.

Based on the above noted findings of fact in this claim, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R. § 30.310(a).  If an objection is not raised during the 60-day period, FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a).  On November 13, 2007, FAB received written notification from the employee waiving any and all objections to the recommended decision.

In order for an employee to be afforded coverage under Part E of EEOICPA, he must establish that he is a “covered DOE contractor employee” who has contracted a covered illness through exposure at a DOE facility.  The term “covered illness” means an illness or death resulting from exposure to a toxic substance.  See 42 U.S.C. § 7385s(1) and (2).  FAB concludes that the employee is a covered DOE contractor employee with a covered illness who contracted that illness through exposure to toxic substances at a DOE facility pursuant to 42 U.S.C. § 7385s-4(c), and awards medical benefits for sensorineural hearing loss pursuant to § 7385s-8, retroactive to November 9, 2006.

It is the decision of FAB that the employee’s claim under Part E of EEOICPA is accepted for medical benefits for the covered illness of sensorineural hearing loss.

Denver, CO

Paula Breitling

Hearing Representative

Final Adjudication Branch

[1]  According to DOE’s website at http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm, the Rocky Flats Plant in Golden, Colorado is a covered DOE facility from 1951 to present.

EEOICPA Fin. Dec. No. 10086042-2010 (Dep’t of Labor, June 22, 2010)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the above-noted claim for compensation under 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, the claim for medical benefits due to choroid melanoma of the left eye, based on exposure to non-ionizing radiation, is accepted under Part E of EEOICPA.  The claim for choroid melanoma of the left eye under Part B is deferred pending completion of a radiation dose reconstruction. 

STATEMENT OF THE CASE

On September 9, 2009, the employee filed a Form EE-1 claiming benefits under EEOICPA for choroid melanoma.  On a Form EE-3, Employment History, he indicated he was employed as a welder by Union Carbide at the Oak Ridge Gaseous Diffusion Plant (K-25) from September 1967 to July 1974.  The Oak Ridge Institute for Science and Education (ORISE) database verified his contractor employment as a welder at K-25 from September 18, 1967 to July 5, 1974.  K-25 is a covered Department of Energy (DOE) facility.[1]

DOE provided the employee’s available personnel and medical records.  A November 3, 1969 medical report noted conjunctivitis (flash burns) to his eyes after performing his regular welding duties and noted he had suffered previous flash burns.  An incident report, dated December 18, 1969, diagnosed flash burns to his eyes after welding at K-25 and again noted he had previous burns to his eyes.  A September 1, 2009 letter, signed by the employee’s physician, listed a diagnosis of choroidal melanoma of the left eye.

On October 5, 2009, the employee completed an Occupational History Questionnaire in which he identified areas in which he worked (K-1401, K-1410, K-1420), his job title (welder), and some of the toxic substances to which he may have been exposed in the course of his employment (including beryllium, cadmium, chromium, lead, manganese, etc.).

To determine his exposure to ionizing radiation, the district office referred the employee’s application package to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction.  The reconstruction is still being completed.

The district office reviewed source documents used to compilethe U. S. Department of Labor’s Site Exposure Matrices (SEM) to determine whether or not it is possible that, given the employee’s labor category and the work processes engaged in, he was exposed to a toxic substance in the course of employment that corresponds to the claimed medical condition.  The SEM search failed to establish a known causal link between melanoma and exposure to any toxic substance.

The district office sent the employee’s records to a district medical consultant (DMC) for review.  In an April 26, 2010 report, the DMC concluded that it was “at least as likely as not” that exposure to toxic substances at the covered facility was a significant factor in causing, contributing to, or aggravating the employee’s choroidal melanoma of the left eye.  The DMC noted that a recognized risk factor for ocular melanoma is ultraviolet light exposure and there is growing scientific literature which includes case-control epidemiologic studies and meta-analysis that supports that work as a welder increases risk for ocular melanoma, particularly if multiple burns of the eyes occur.  The DMC noted that high energy welding processes can generate intense ultraviolet light and the welding-related burns, which can occur in the eyes or skin, are sometimes called flash burns.  The DMC noted that the time between his documented flash burns to the eyes to diagnosis of the eye melanoma is a sufficient latency period for the cancer to occur from worksite exposures.

On May 20, 2010, the Jacksonville district office issued a recommended decision recommending acceptance of the claim for medical benefits under Part E for choroid melanoma of the left eye.  The recommended decision informed the employee that he had 60 days to file any objections.  On May 27, 2010, FAB received written notification that the employee waived any and all objections to the recommended decision.  On June 18, 2010, FAB received the employee’s signed statement verifying that he had not received any settlement or award from a lawsuit related to toxic exposure at the covered facility or workers’ compensation claim in connection with choroid melanoma of the left eye, and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

In light of the above, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On September 9, 2009, the employee filed a claim for benefits under EEOICPA based on choroid melanoma.

2. The employee was initially diagnosed with choroid melanoma of the left eye on September 1, 2009.

3. The employee was a DOE contractor employee at K-25 from September 18, 1967 to July 5, 1974.

4. There is a causal relationship between toxic exposure at K-25 and the employee’s choroid melanoma of the left eye.

Based on the above findings of fact, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA 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.  20 C.F.R. § 30.316(a) (2010).

Under Part E, a “covered illness” means an illness or death resulting from exposure to a toxic substance.  A “toxic substance” means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.  20 C.F.R. § 30.5(ii).  Non-ionizing radiation in the form of radio-frequency radiation, microwaves, visible light, and infrared or ultraviolet light radiation is a toxic substance under Part E.[2] 

Under Part B, radiation is defined only as ionizing radiation in the form of alpha particles, beta particles, neutrons, gamma rays, X-rays, or accelerated ions or subatomic particles from accelerator machines.  42 U.S.C. § 7384l(16).  A NIOSH radiation dose reconstruction is required to determine the probability that ionizing radiation exposure during the performance of duty caused an employee’s cancer.  However, EEOICPA does not require a dose reconstruction to determine if non-ionizing radiation exposure caused an employee’s cancer under Part E.  20 C.F.R. § 30.213(c).

The evidence establishes that 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 employee’s choroid melanoma of the left eye.  The employee was a DOE contractor employee with choroid melanoma of the left eye due to exposure to a toxic substance at a DOE facility.  Therefore, I hereby conclude that the employee is entitled to medical benefits for choroid melanoma of the left eye, effective September 9, 2009, under Part E of EEOICPA.

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

[1]  See DOE’s facility list on the agency website at:  http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (Retrieved June 21, 2010).

[2] Federal (EEOICPA) Procedure Manual, Chapter 0-0500.2(ss) (November 2008).

Presumption of Causation

EEOICPA Fin. Dec. No. 10039710-2007 (Dep’t of Labor, November 30, 2007)

ORDER GRANTING REQUEST FOR RECONSIDERATION AND FINAL DECISION

This is the final decision of the Final Adjudication Branch (FAB) concerning the employee’s claim under Part 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 stated below, the employee’s claim under Part E for the covered illness of asbestosis is accepted for the payment of medical benefits.  However, a surplus in the amount of $132,065.71 must be absorbed before any Part E benefits may actually be paid to or on behalf of the employee.  A determination as to whether the employee is entitled to any compensation for potential wage-loss and/or impairment benefits under Part E due to asbestosis is deferred at this time.

STATEMENT OF THE CASE

On , the employee filed a claim for benefits under Part E of EEOICPA and alleged that he had developed “asbestos lung disease” as the result of his employment in , from 1976 to 2001.  On his claim form, the employee indicated that he had both filed a law suit and had received a settlement for the claimed condition of “asbestos lung disease.”  He also alleged that he had worked for three different Department of Energy (DOE) contractors at the Y-12 and K-25 Plants, and DOE subsequently verified that he was employed at the Y-12 and K-25 Plants from through .

In support of the claim, the employee’s representative submitted an report in which Dr. Scutero reviewed the employee’s medical records and x-rays and diagnosed asbestosis due to asbestos exposure, and a report in which Dr. Chirrona related an impression of probable asbestos-related lung disease and mild chronic obstructive pulmonary disease (COPD).  In a July 3, 2006 response to a request for additional medical evidence from the Jacksonville district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), the representative submitted October 21 and 31, 2005 reports in which Dr. Cherry diagnosed asbestosis due to asbestos exposure as confirmed by evidence of pleural plaques and pulmonary function testing, and COPD due to cigarette smoking, as well as the pulmonary function testing and computerized tomography findings upon which Dr. Cherry had based his opinions.

In a submission that was received by the district office on October 19, 2006, the employee’s representative submitted copies of the “short-form” complaint alleging work-related asbestos exposure at the Oak Ridge Reservation that the employee filed in the Circuit Court for Knox County, Tennessee on August 14, 1992[1], and a “settlement detail” from the employee’s attorneys in that tort action.  The latter document listed 14 defendants and the dollar amounts of settlement payments received from 13 of them (the complaint listed 17 defendants) totaling $18,532.43.  Entries for 10 of the 13 defendants indicated that attorney fees were deducted from the settlement payments received, and entries for nine of the 13 defendants also indicated that expenses ranging from $0 to $640 were deducted.  The employee’s representative also submitted copies of the “worker’s compensation complaint” that the employee filed in the Circuit Court for Anderson County, Tennessee on November 15, 2005[2], an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15, 2006, and a list of itemized expenses related to that claim.  The complaint alleged that the employee contracted “asbestosis or asbestos-related lung disease, due to, or as a consequence of his exposure to asbestos” at work, but did not also allege that the employee had contracted COPD due to his employment.  In Sections II, III and V of the September 15, 2006 Order, the judge in that matter found that the employee had contracted one work-related illness, “asbestos-related lung disease,” dismissed his claim against two of the three defendants, and decreed that upon payment of the settlement of $150,869.60 and its agreement to pay medical benefits, the third defendant would be relieved of all further liability to the employee for “the claimed occupational asbestos-related lung disease and any non-malignant respiratory injury.”

On , the district office issued a recommended decision to accept the employee’s Part E claim and found that the medical evidence established that the employee had contracted the covered illness of asbestosis due to his work-related exposure to asbestos.  In that same recommended decision, the district office found that the employee had received a state workers’ compensation settlement of $150,869.60 for his covered illness, and calculated that $119,392.18 of that settlement had to be coordinated with the employee’s Part E benefits.  Since the employee was not being awarded any monetary benefits at that time, the district office found that the entire $119,392.18 constituted a “surplus” that would have to be recovered from his future Part E benefits, including the medical benefits that it was recommending for acceptance.  However, the district office made no findings of fact regarding the employee’s tort recoveries.

In a letter, the employee’s representative objected to the recommendation that the employee’s Part E award for asbestosis be coordinated with his state workers’ compensation settlement.  In support of this objection, the representative asserted that the employee had both claimed for and received the settlement for both “any non-malignant respiratory injury” and either “asbestosis” or “asbestos lung disease,” and argued that because the district office found that the employee had contracted only one covered illness–asbestosis–no coordination was required under DEEOIC’s procedures. 

On February 7, 2007, FAB issued a final decision accepting the employee’s Part E claim.  In its decision, FAB considered the representative’s objection to the coordination of the employee’s Part E benefits and rejected it because there was “no evidence that the employee was diagnosed with a non-malignant illness other than from asbestos exposure and that is not considered an asbestos-related pulmonary condition.”  Based on this finding, FAB accepted the district office’s recommendation that payment for any medical treatment of the employee’s asbestosis be suspended until the $119,392.18 “surplus” was fully absorbed.  FAB also made no findings regarding the employee’s tort recoveries.

On March 22, 2007, the employee filed a petition in the United States District Court for the Eastern District of Tennessee seeking review of the final decision on his Part E claim.[3]  Shortly thereafter, on April 30, 2007 the Director of DEEOIC issued an order that vacated the February 7, 2007 final decision and reopened the employee’s claim for both further development and the issuance of new recommended and final decisions.  The order noted that neither the recommended nor the final decisions in this matter had discussed the recoveries that the employee had received from his tort action, and that the coordination of his Part E benefits with his state workers’ compensation settlement was not correctly calculated using the proper worksheet.

Following the issuance of the April 30, 2007 order, the national office of DEEOIC sent the employee a July 5, 2007 letter in which it requested additional information regarding his tort recoveries.  On July 12, 2007, the employee’s representative responded to the July 5, 2007 development letter by submitting an updated “Settlement Detail” showing the receipt of another $3,000 payment from a defendant, a list of itemized expenses related to the employee’s tort suit amounting to $1,703.96, and a cover letter in which he noted that attorney fees of $7,177.40 had been paid out of the recovery total of $21,532.43.

On August 15, 2007, the national office issued a recommended decision:  (1) to accept the employee’s Part E claim for the payment of medical benefits for the covered illness of asbestosis; (2) to offset the employee’s Part E benefits with the $12,673.53 “surplus” recovery from his tort action for asbestos exposure; and (3) to coordinate the employee’s Part E benefits with the $119,392.18 “surplus” of the state workers’ compensation benefits he received for the same covered illness.  The case was transferred to FAB on the same date; since no objections to the recommended decision were received within the 60-day period provided for under 20 C.F.R. § 30.310(a) (2007), FAB issued a decision on the employee’s claim on October 25, 2007.

Thereafter, by letter dated November 2, 2007, the employee’s representative made a timely request for reconsideration of the October 25, 2007 decision and submitted copies of an August 29, 2007 letter objecting to the August 15, 2007 recommended decision and an April 20, 2007 affidavit of Dr. Cherry that he alleged had been sent to FAB in a timely manner in support of his reconsideration request.  Although there is no evidence that the August 29, 2007 objections or the April 20, 2007 affidavit were ever received by FAB, they appear to have been properly sent to the correct mailing address.  Therefore, FAB hereby grants the request to reconsider the employee’s claim to consider the following objections to the recommended decision:

OBJECTIONS

In his August 29, 2007 submission, the employee’s representative argued that the recommended coordination of the employee’s Part E benefits with the $119,392.18 “surplus” of the state workers’ compensation benefits he had received was improper under 20 C.F.R. § 30.626(c)(3), and alleged that the state workers’ compensation benefits at issue were for both asbestos-related lung disease (a covered illness) and COPD (a non-covered illness).  In support of his argument, the representative asserted that Dr. Cherry’s affidavit established that the employee’s COPD was a “non-malignant lung injury.”  In his affidavit, Dr. Cherry indicated that he had examined the employee on , that he had diagnosed COPD based on his findings, and that COPD “is a non-malignant respiratory injury.”

After considering the recommended decision, the objections to the recommended decision and all of the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. The employee filed a claim for benefits under Part E of EEOICPA on , and alleged that he had contracted “asbestos lung disease” due to his employment.

2. The employee was employed as a DOE contractor employee at two DOE facilities, the K-25 and Y-12 Plants in , , from through .  This is more than 250 days of covered employment, during which the potential for asbestos exposure existed.

3. The medical evidence of record establishes that the employee was first definitively diagnosed with asbestosis due to exposure to asbestos by Dr. Scutero on October 7, 1997, more than ten years after he was first exposed to asbestos at a DOE facility, and that he was later diagnosed with nonwork-related COPD due to cigarette smoking by Dr. Cherry in reports dated October 21 and 31, 2005.

4. It is at least as likely as not that the employee’s exposure to asbestos at two DOE facilities, the K-25 and Y-12 Plants, was a significant factor in aggravating, contributing to, or causing his asbestosis.

5. It is at least as likely as not that the employee’s exposure to asbestos was related to his employment by a DOE contractor at the K-25 and Y-12 Plants.

6. The employee filed a tort suit in the Circuit Court for , on August 14, 1992 against 17 defendants, alleging that he had been exposed to asbestos at work at the K-25 and Y-12 Plants.  As of July 12, 2007, the employee had received recoveries from the defendants of $21,532.43 and had paid out allowable attorney fees of $7,199.86 and allowable costs of suit of $1,681.50.

7. The employee also filed a “worker’s compensation complaint” in the Circuit Court for Anderson County, Tennessee on November 15, 2005 seeking workers’ compensation benefits for “asbestosis or asbestos-related lung disease.”  The employee did not seek state workers’ compensation benefits for COPD in that action.  In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15, 2006, the judge in that matter found that the employee had contracted a single illness, “asbestos-related lung disease,” and decreed that payment of the settlement of $150,869.60 would relieve the defendant of all future liability to the employee for “the claimed occupational asbestos-related lung disease and any non-malignant respiratory injury.”  Out of this settlement, the employee paid allowable attorney fees of $30,173.92 and allowable costs of suit of $1,303.50.

Based on the above-noted findings of fact, FAB hereby makes the following:

CONCLUSIONS OF LAW

The first issue in this case is whether the employee qualifies as a “covered Part E employee” under 20 C.F.R. § 30.5(p).  For this case, the relevant portion of the definition of a “covered Part E employee” is “a Department of Energy contractor employee. . .who has been determined by OWCP to have contracted a covered illness. . .through exposure at a Department of Energy facility,” and the claimed “covered illness” is “asbestos lung disease” or asbestosis.

DEEOIC has established criteria to allow for a presumption of causation in claims filed under Part E for asbestosis.  If the evidence in the claim file is sufficient to establish that the employee was diagnosed with asbestosis, that he or she worked at least 250 aggregate days at a facility where the presence of asbestos has been confirmed, and that there was a latency period of at least 10 years between the employee’s first exposure and the first diagnosis of asbestosis, DEEOIC can accept that it was at least as likely as not that the employee’s exposure to asbestos at a DOE facility was a significant factor in aggravating, contributing to or causing his or her asbestosis.[4]  See Federal (EEOICPA) Procedure Manual, Chapter E-500.17 (June 2006).

As found above, the employee is a DOE contractor employee who was employed at two DOE facilities in Oak Ridge by DOE contractors and who contracted a “covered illness,” as that term is defined in § 7385s(2) of EEOICPA.  The “covered illness” that the employee contracted is asbestosis due to work-related exposure to asbestos, and this is the only “covered illness” that is supported by the medical evidence in the case file (the employee’s COPD is not due to the same work-related exposure that resulted in his asbestosis and is instead due to nonwork-related cigarette smoking).  The employee also had more than one year of covered employment with exposure to asbestos and was diagnosed with asbestosis more than ten years following his initial exposure to asbestos at a covered DOE facility.  Therefore, he qualifies as a “covered Part E employee” under § 30.5(p) of the regulations for the condition of asbestosis, and the employee’s claim for asbestosis is accepted pursuant to § 7385s-4(c) of EEOICPA.  Since he is a “covered Part E employee,” the employee is entitled to medical benefits for the “covered illness” of asbestosis pursuant to § 7385s-8 of EEOICPA, retroactive to the date he filed his claim for benefits on .

The second issue in this case is whether the employee’s Part E benefits must be offset.  Under § 7385 of EEOICPA and 20 C.F.R. § 30.505(b), Part E benefits must be offset to reflect payments made pursuant to a final judgment or a settlement received in litigation for the same exposure that EEOICPA benefits are payable.  As found above, the employee filed a tort suit in the Circuit Court for , on against 17 defendants, alleging that he had been exposed to asbestos at work.  Through , the employee has received total recoveries from the defendants of $21,532.43, and had paid out allowable attorney fees of $7,199.86 and allowable costs of suit of $1,681.50.  Using the “EEOICPA Part B/E Benefits Offset Worksheet,” the employee has a “surplus” recovery from his tort action of $12,673.53; this “surplus” must be absorbed from medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits can actually be paid to or on behalf of the employee.

The third issue in this case is whether the employee’s Part E benefits also must be coordinated.  Under § 7385s-11 of EEOICPA and 20 C.F.R. § 30.626, Part E benefits must be coordinated with any state workers’ compensation benefits (other than medical or vocational rehabilitation benefits) that the claimant has received for the same covered illness.  As found above, on November 15, 2005 the employee filed a “worker’s compensation complaint” in the Circuit Court for Anderson County, Tennessee seeking state workers’ compensation benefits solely for “asbestosis or asbestos-related lung disease.”  In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15, 2006, the judge specifically found that the employee had contracted one illness, “asbestos-related lung disease,” and decreed that the payment of the settlement of $150,869.60 would relieve the defendant of all future liability to the employee for “the claimed occupational asbestos-related lung disease and any non-malignant respiratory injury.”

This does not mean, however, that the settlement was for anything other than the employee’s “covered illness” of asbestosis, which is the only work-related lung disease that is established by the medical evidence of record.  This conclusion is consistent with the medical evidence in the case file, the “worker’s compensation complaint” that the employee filed, and the remainder of the Order itself, which explicitly states in Sections II, III and V that the employee contracted a single work-related illness of “asbestos-related lung disease,” not that illness and a work-related non-malignant respiratory injury.[5]  In his objection to the recommended decision, the employee’s representative argued for the first time that Dr. Cherry’s affidavit established that the employee’s COPD is a non-malignant respiratory injury, and the medical evidence of record supports that particular conclusion.  However, the record also establishes that the employee’s COPD is due to his nonwork-related cigarette smoking rather than to his exposure to asbestos while employed at a DOE facility.  Therefore, because the record does not establish that the employee received state workers’ compensation benefits “for both a covered illness and a non-covered illness arising out of and in the course of the same work-related incident,” coordination of the employee’s Part E benefits for the “covered illness” of asbestosis with his $150,869.60 settlement is required.  See 20 C.F.R. 30.626(c)(3).  Out of this settlement, the employee paid allowable attorney fees of $30,173.92 and allowable costs of suit of $1,303.50.  Using the “EEOICPA/SWC Coordination of Benefits Worksheet,” the employee has received “surplus” state workers’ compensation benefits totaling $119,392.18 after deducting allowable attorney fees and costs of suit from his gross settlement.  This second “surplus” must also be absorbed from the employee’s medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits can actually be paid to or on behalf of the employee.

Accordingly, the employee is entitled to medical benefits for his asbestosis, retroactive to the date he filed his EEOICPA claim on .  However, a total “surplus” in the amount of $132,065.71 must be absorbed pursuant to §§ 7385 and 7385s-11(a) of EEOICPA before any Part E benefits are actually payable.

Washington,

Tom Daugherty

Hearing Representative

Final Adjudication Branch

[1]  No. 1-553-92.

[2]  No. A5LA0597.

[3]  No. 3:07-cv-103 (E.D. Tenn. Knoxville).

[4]  The actual latency period for the development of asbestosis is a function of the duration and intensity of exposure to asbestos.  Thus, if an employee’s occupation was one that is not typically exposed to asbestos, or the potential for extreme exposure existed and the employee worked less than 250 aggregate work days, or there is a latency period of less than 10 years existing between the covered DOE or RECA section 5 employment and the onset of the illness, DEEOIC will evaluate all of the evidence in the file to determine whether a causal relationship exists in those instances.

[5]  This interpretation of the September 15, 2006 Order is consistent with the way a similar order settling a Tennessee workers’ compensation case was interpreted by the Tennessee Supreme Court in Wilson v. National Healthcare Corp., 2004 WL 1964909 *3 (Tenn. Workers’ Comp. Panel  Sept. 7, 2004).

EEOICPA Fin. Dec. No. 10068242-2008 (Dep’t of Labor, July 25, 2008)

ORDER GRANTING REQUEST FOR RECONSIDERATION
AND FINAL DECISION

The Final Adjudication Branch (FAB) hereby grants the employee’s timely request for reconsideration of its June 6, 2008 final decision, pursuant to 20 C.F.R. § 30.319(c) (2008), and issues this new final decision concerning the employee’s claim under Part 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 stated below, the employee’s claim under Part E for the covered illness of asbestosis is accepted for the payment of medical benefits.  However, a “surplus” in the amount of $74,416.46 must be absorbed before any Part E benefits may actually be paid to or on behalf of the employee.  A determination as to whether the employee is entitled to any compensation for potential wage-loss and/or impairment benefits under Part E due to his covered illness of asbestosis is deferred at this time.

STATEMENT OF THE CASE

On August 13, 2007, the employee filed a Form EE-1 claiming benefits under Part E of EEOICPA and alleged that he had contracted “asbestos related lung disease” due to his employment as an electrician at the Y-12 Plant and K-25 Plant in Oak Ridge, Tennessee from 1977 to 1995.  The employee also alleged that he was exposed to asbestos, radiation and toxic chemicals while working at those two facilities.  Using the Oak Ridge Institute for Science and Education database, the Savannah River Resource Center verified that the employee had worked at the K-25 Plant from October 31, 1977 to August 28, 1981, and at the Y-12 Plant from August 22, 1983 to March 4, 1991.  On his Form EE-1, the employee further indicated that he had filed a tort suit and a state workers’ compensation claim related to his claimed illness, and that he had received settlements or other awards.

In support of his claim, the employee submitted pulmonary function and x-ray studies and a July 27, 2005 report from Dr. Ronald R. Cherry, a Board-certified pulmonary specialist.  In that report, Dr. Cherry related the employee’s belief that he had mild asthma, noted that he had smoked about one quarter pack of cigarettes a day for 10 years before he quit at age 35, and diagnosed “asbestosis” based on the results of his laboratory studies.  In a follow-up note dated August 3, 2005, Dr. Cherry repeated his diagnosis of “asbestosis,” causally related that one illness to the employee’s work-related exposure to asbestos dust, and opined that the employee had a 17% permanent impairment of the whole person using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

In a signed statement dated September 18, 2007, the employee confirmed that he and his wife had filed a tort suit for damages due to his alleged asbestos exposure in the Circuit Court for Knox County, Tennessee; he also noted that the suit was still pending and that they had received joint settlement payments as of that date amounting to $6,339.50, less attorneys fees of $2,113.14 and court costs of $708.62.[1]  The employee also confirmed that he had received a settlement of his claim for state workers’ compensation benefits[2] in the amount of $91,104.02, less attorney fees of $18,220.80 and $1,281.50 of expenses, and asserted that this payment was for “the claimed condition of asbestos related lung disease and any non-malignant respiratory injury (asthma).”

Accompanying the employee’s statement was a copy of the short-form complaint against 14 defendants that he and his wife had filed in the tort suit, a settlement sheet showing that their law firm had received seven separate payments as of September 11, 2007, and an itemized list of court costs from that litigation.  Also accompanying the above-noted statement was a certified copy of the March 10, 2006 “Order Approving Compromised Settlement of Workers’ Compensation Claim,” signed by Judge Donald R. Elledge of the Circuit Court for Anderson County, Tennessee, that settled the employee’s state workers’ compensation claim against his employer, and a list of expenses from that proceeding.  In his March 10, 2006 Order, the Judge found that the employee had contracted “asbestos-related lung disease as a result of occupational exposure to asbestos,” and decreed that payment of $91,104.02 would exonerate the employer “from any and all further liability with regard to [state workers’ compensation] benefits which may be claimed by the [employee] or growing out of any injuries that have resulted, or may hereafter result, to [the employee] in reference to the claimed asbestos-related lung disease and any non-malignant respiratory injury. . . .”

On December 12, 2007, the Jacksonville district office issued a recommended decision to accept the employee’s Part E claim for asbestosis and to pay him medical benefits, once a combined surplus due to his receipt of payments from his tort suit and his state workers’ compensation claim in the amount of $74,416.46 was absorbed.[3]  By letter postmarked on January 29, 2008, the employee’s representative filed an objection to the recommended decision and requested a review of the written record of the claim.  In her submission, the employee’s representative objected to the coordination of the employee’s Part E benefits with the proceeds of the settlement of his state workers’ compensation claim, which had accounted for $71,601.72 of the $74,416.46 “surplus” found by the district office.  She alleged that the employee’s settlement was “for the claimed conditions of both asbestos lung disease and any non-malignant respiratory injury” (emphasis in original) based on the “Order Approving Compromised Settlement of Workers’ Compensation Claim,” and further alleged that the employee had been diagnosed with “asthma, a non-malignant lung injury. . . .”  Given these allegations, the representative argued that the recommendation to coordinate was improper because the employee “received his state workers’ compensation for a covered and non-covered illness. . . .”

As noted above, FAB issued a June 6, 2008 final decision in which it confirmed the district office’s recommendations to accept the employee’s claim for the covered illness of “asbestosis” and awarded the employee medical benefits for his accepted illness, after the combined surplus of $74,416.46 was absorbed.  However, on June 30, FAB received a timely request that it reconsider its June 6, 2008 decision from the employee’s representative.[4]  In her request, the representative alleged that the employee had received state workers’ compensation benefits for both his covered illness of “asbestos related lung disease and any non-malignant respiratory injury (asthma and COPD). . . .”  In support of her most recent allegation, the representative submitted office notes and accompanying consultation reports dated February 26, 2004, June 30, 2004, October 29, 2004, February 28, 2005, August 22, 2005, May 1, 2006 and April 28, 2008 by Dr. Richard M. Gaddis, the employee’s attending osteopath.  In his office notes, Dr. Gaddis diagnosed flare-ups of both asthma and COPD due to either burning wood in a wood stove and paint fumes; however, Dr. Gaddis did not causally relate either of these two medical conditions to the employee’s work-related exposure to asbestos at the K-25 and Y-12 Plants.

After considering the recommended decision, the timely objections to the recommended decision, the evidence submitted in support of the timely request for reconsideration and all of the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. The employee filed a claim for benefits under Part E of EEOICPA on August 13, 2007, and alleged that he had contracted “asbestos related lung disease” due to his employment.

2. The employee was employed as a DOE contractor employee at two DOE facilities, the K-25 and Y-12 Plants in Oak Ridge, Tennessee, from October 31, 1977 through August 28, 1981, and from August 22, 1983 through March 4, 1991, respectively.  This is more than 250 days of covered employment, during which the potential for asbestos exposure existed.

3. The medical evidence of record establishes that the employee was first diagnosed with asbestosis due to work-related asbestos exposure by Dr. Cherry in his August 3, 2005 report, more than ten years after he was first exposed to asbestos at a DOE facility.

4. The medical evidence of record also establishes that the employee was diagnosed with asthma and COPD by Dr. Gaddis.  However, Dr. Gaddis did not causally relate either the employee’s asthma or his COPD to the same work-related asbestos exposure that led to the employee’s asbestosis.

5. It is at least as likely as not that the employee’s exposure to asbestos at two DOE facilities, the K-25 and Y-12 Plants in Oak Ridge, Tennessee was a significant factor in aggravating, contributing to, or causing his asbestosis.

6. It is at least as likely as not that the employee’s exposure to asbestos was related to his employment by a DOE contractor at two DOE facilities, the K-25 and Y-12 Plants in Oak Ridge, Tennessee.

7. The employee and his wife filed a tort suit in the Circuit Court for Knox County, Tennessee, alleging that he had been exposed to asbestos while at work.  As of September 11, 2007, the employee and his wife have received total recoveries from seven of the defendants of $6,339.50, and have paid out allowable attorney fees of $2,113.14 and allowable costs of suit of $708.62.

8. The employee also filed a workers’ compensation complaint in the Circuit Court for Anderson County, Tennessee seeking state workers’ compensation benefits for asbestos-related lung disease.  In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated March 10, 2006, the judge in that matter found that the employee had contracted a single illness, “asbestos-related lung disease as a result of occupational exposure to asbestos,” and decreed that payment of the settlement of $91,104.02 would relieve the employer of all future liability to the employee for “the claimed asbestos-related lung disease and any non-malignant respiratory injury.”  Out of this settlement, the employee paid allowable attorney fees of $18,220.80 and allowable costs of suit of $1,281.50.

Based on the above-noted findings of fact in the employee’s Part E claim, FAB hereby makes the following:

CONCLUSIONS OF LAW

The first issue in this case is whether the employee qualifies as a “covered Part E employee” under 20 C.F.R. § 30.5(p).  For this case, the relevant portion of the definition of a “covered Part E employee” is “a Department of Energy contractor employee. . .who has been determined by OWCP to have contracted a covered illness. . .through exposure at a Department of Energy facility,” and the claimed “covered illness” is “asbestos-related lung disease” or asbestosis.

DEEOIC has established criteria to allow for a presumption of causation in claims filed under Part E for asbestosis.  If the evidence in the claim file is sufficient to establish that the employee was diagnosed with asbestosis, that he or she worked at least 250 aggregate days at a facility where the presence of asbestos has been confirmed, and that there was a latency period of at least 10 years between the employee’s first exposure and the first diagnosis of asbestosis, DEEOIC can accept that it was at least as likely as not that the employee’s exposure to asbestos at a DOE facility was a significant factor in aggravating, contributing to or causing his or her asbestosis.[5]  See Federal (EEOICPA) Procedure Manual, Chapter E-500.17 (June 2006).

As found above, the employee is a DOE contractor employee who was employed at two DOE facilities in Oak Ridge by DOE contractors and who contracted a “covered illness,” as that term is defined in § 7385s(2) of EEOICPA.  The “covered illness” that the employee contracted is asbestosis due to work-related exposure to asbestos, and this is the only “covered illness” that is supported by the medical evidence in the case file.  While there is medical evidence in the file that establishes that the employee has been diagnosed with both asthma and COPD, that same medical evidence does not establish that either of these two other illnesses were contracted through the same work-related exposure of the employee to asbestos (or any other toxic substance) at a DOE facility.  The employee also had more than one year of covered employment with exposure to asbestos and was first diagnosed with asbestosis more than ten years following his initial exposure to asbestos at a covered DOE facility.  Therefore, he qualifies as a “covered Part E employee” under § 30.5(p) of the regulations for the condition of asbestosis, and the employee’s claim for asbestosis is accepted pursuant to § 7385s-4(c) of EEOICPA.  Since he is a “covered Part E employee,” the employee is entitled to medical benefits for the “covered illness” of asbestosis pursuant to § 7385s-8 of EEOICPA, retroactive to the date he filed his claim for benefits on August 13, 2007.

The second issue in this case is whether the employee’s Part E benefits must be offset.  Under § 7385 of EEOICPA and 20 C.F.R. § 30.505(b), Part E benefits must be offset to reflect payments made pursuant to a final judgment or a settlement received in litigation for the same exposure for which EEOICPA benefits are payable.  As found above, the employee and his wife filed a tort suit in the Circuit Court for Knox County, Tennessee, alleging that he had been exposed to asbestos at work.  Through September 11, 2007, the employee and his wife have received total joint recoveries from seven of the defendants of $6,339.50, and have paid out allowable attorney fees of $2,113.14 and allowable costs of suit of $708.62.  Using the “EEOICPA Part B/E Benefits Offset Worksheet,” the employee has a “surplus” recovery from his tort action of $2,814.74; this “surplus” must be absorbed from medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits can actually be paid to or on behalf of the employee.

The third issue in this case is whether the employee’s Part E benefits also must be coordinated.  Under § 7385s-11 of EEOICPA and 20 C.F.R. § 30.626, Part E benefits must be coordinated with any state workers’ compensation benefits (other than medical or vocational rehabilitation benefits) that the claimant has received for the same covered illness.  As found above, the employee filed a state workers’ compensation complaint in the Circuit Court for Anderson County, Tennessee seeking workers’ compensation benefits for asbestos-related lung disease.  In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated March 10, 2006, the judge in that matter found that the employee had contracted a single illness, “asbestos-related lung disease as a result of occupational exposure to asbestos,” and decreed that payment of the settlement of $91,104.02 would relieve the employer of all liability to the employee for “the claimed asbestos-related lung disease and any non-malignant respiratory injury.”

This does not mean, however, that the above settlement was for anything other than the employee’s “covered illness” of asbestosis.  The scope of the settlement is important because pursuant to 20 C.F.R. § 30.626(c)(3), DEEOIC will not coordinate a claimant’s Part E benefits with his or her state workers’ compensation benefits for the same covered illness if the state workers’ compensation benefits were received “for both a covered illness and a non-covered illness arising out of and in the course of the same work-related incident.” (emphasis added)  A close reading of Sections II, III, IV and V of the March 10, 2006 Order, however, reveals that the only lung disease specifically identified by the judge as resulting from work-related asbestos exposure was the same as the employee’s covered illness–asbestosis or “asbestos-related lung disease.”  This conclusion is also consistent with the medical evidence in the case file, which does not establish that the employee’s asthma and COPD are causally related to the same work-related exposure to asbestos that led to the development of his asbestosis.  The mere fact that the judge in the employee’s state workers’ compensation proceeding wrote that payment of $91,104.02 would exonerate the employer “from any and all further liability with regard to [state workers’ compensation] benefits which may be claimed by the [employee] or growing out of any injuries that have resulted, or may hereafter result, to [the employee] in reference to the claimed asbestos-related lung disease and any non-malignant respiratory injury” in his March 10, 2006 Order does not mean that that the employee actually contracted both “asbestos-related lung disease as a result of occupational exposure to asbestos” and some other unidentified “non-malignant respiratory injury.”[6]  Therefore, coordination of the employee’s Part E benefits for the “covered illness” of asbestosis with his $91,104.02 settlement is required.  Out of this settlement, the employee paid allowable attorney fees of $18,220.80 and allowable costs of suit of $1,281.50.  Using the “EEOICPA/SWC Coordination of Benefits Worksheet,” the employee has received “surplus” state workers’ compensation benefits totaling $71,601.72 after deducting allowable attorney fees and costs of suit from his gross settlement.  This second “surplus” must also be absorbed from the employee’s medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits can actually be paid to or on behalf of the employee.

Accordingly, the employee is entitled to medical benefits for his asbestosis, retroactive to the date he filed his EEOICPA claim on August 13, 2007.  However, a total “surplus” in the amount of $74,416.46 must be absorbed pursuant to §§ 7385 and 7385s-11(a) of EEOICPA before any Part E benefits are actually payable.

Washington, DC

Kathleen M. Graber

Hearing Representative

Final Adjudication Branch

[1]  No. 2-472-05 (filed August 31, 2005).

[2]  No. A5LA0307.

[3]  On February 25, 2008, FAB issued a final decision confirming the district office’s recommendations to accept the employee’s claim for the covered illness of asbestosis and to award the employee medical benefits for his accepted illness, after the combined surplus of $74,416.46 was absorbed.  On April 9, 2008, the employee filed a petition with the United States District Court for the Eastern District of Tennessee, seeking review of the February 25, 2008 decision (No. 3:08-cv-125).  Also on April 9, 2008, FAB received an April 7, 2008 submission in which the employee’s authorized representative noted that she had submitted objections to the recommended decision, which FAB had not considered prior to issuing the February 25, 2008 decision.  Because of this, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a May 20, 2008 order vacating the February 25, 2008 decision, reopening the employee’s Part E claim and returning it to FAB for the issuance of an appropriate new final decision that considered the representative’s timely objections to the December 12, 2007 recommended decision.

[4]  By doing so, the representative revoked the finality of the June 6, 2008 decision.  See 20 C.F.R. § 30.316(d).

[5]  The actual latency period for the development of asbestosis is a function of the duration and intensity of exposure to asbestos.  Thus, if an employee’s occupation was one that is not typically exposed to asbestos, or the potential for extreme exposure existed and the employee worked less than 250 aggregate work days, or there is a latency period of less than 10 years existing between the covered DOE or RECA section 5 employment and the onset of the illness, DEEOIC will evaluate all of the evidence in the file to determine whether a causal relationship exists in those instances.

[6]  This interpretation of the September 15, 2006 Order is consistent with the way a similar order settling a Tennessee workers’ compensation case was interpreted by the Tennessee Supreme Court in Wilson v. National Healthcare Corp., 2004 WL 1964909 *3 (Tenn. Workers’ Comp. Panel  Sept. 7, 2004).