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Cancer, Radiogenic

 

Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Radiogenic Cancer.  We hope these decisions are helpful.  Please add your experiences in the comments section.

Cancer, Radiogenic

Changes in dose reconstruction methodology

EEOICPA Fin. Dec. No. 61433-2006 (Dep’t of Labor, April 25, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the claimants’ claims 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 claims for benefits for the employee’s lung cancer are denied under Part B of EEOICPA. 

STATEMENT OF THE CASE

On August 9, 2004, [Claimant #1] filed a Form EE-2 claiming for survivor benefits under EEOICPA, and on September 7, 2004, [Claimant #2] and [Claimant #3] filed a Form EE-2.  [Claimant #2] also filed a Request for Review by Medical Panels form with the Department of Energy (DOE) on that date.  On the claim forms, they each identified themselves as the surviving children of [Employee] (hereinafter referred to as “the employee”) and lung cancer as the employee’s condition for which they were claiming benefits.  On the EE-2 forms, they each indicated that the employee worked at a Special Exposure Cohort (SEC) location. 

In support of their claims for survivorship, they provided a copy of the employee’s death certificate, which shows that the employee died on June 29, 2003, and that he was widowed on his date of death.  They each provided a copy of their birth certificate identifying the employee as their father.  Where appropriate, they provided the documentation that reflects their surname changes.

On the Form EE-3, they alleged that the employee worked for F.H. McGraw during construction of the gaseous diffusion plant (GDP) in Paducah, Kentucky from 1951 to May 1955.  They also indicated that the employee did not wear a dosimetry badge.  DOE was unable to verify the alleged employment. 

Numerous documents, including Social Security Administration (SSA) Itemized Statements of Earnings, an Employment History Affidavit (Form EE-4), and a security clearance issued by DOE to the employee through F.H. McGraw were reviewed in an effort to reconstruct and verify the employee’s work history and employment by DOE contractors and/or subcontractors at the Paducah GDP.  A review of this documentation shows that the employee was employed by F.H. McGraw, a recognized DOE subcontractor, at the Paducah GDP from May 12, 1952 until July 7, 1952.

On April 24, 2006, FAB issued a final decision under Parts B and E of EEOICPA on their claims.  The FAB denied their claims under Part E as there was insufficient evidence that any of them were a surviving child of the employee, who, at the time of the employee’s death, was under the age of 18, under the age of 23 and continuously enrolled as a full-time student, or any age and incapable of self-support on the employee’s date of death, which are the criteria that govern whether an employee’s surviving child qualifies as a “covered” child under Part E, and is thereby eligible for benefits under Part E. 

With respect to Part B of EEOICPA, FAB found that the medical evidence established that the employee was diagnosed with small cell lung cancer on December 17, 2002.  The district office had submitted the case to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction.  Based on the dose reconstruction report prepared by NIOSH and the calculated probability of causation (“PoC”)[1], FAB determined that the employee’s lung cancer was not “at least as likely as not” caused by his exposure to radiation at the DOE facility.  Accordingly, FAB denied their claims based on the employee’s lung cancer under Part B. 

On March 21, 2007, NIOSH released OCAS-PEP-013, entitled “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant.”  This release outlined NIOSH’s plan for evaluating the effect on dose reconstructions of changes to multiple Paducah GDP Technical Basis Documents (TBDs) that were made to ensure that the published isotopic ratios for transuranic radionuclides meet the criteria of providing either an accurate or maximum dose estimate.  NIOSH determined that the current ratios in the prior TBDs did not meet that goal.  As such, the Occupational Internal Dose and Occupational Environmental Dose TBDs were updated to account for the transuranic uranium isotopic ratios (relative to uranium) for estimating dose from these radionuclides.  In response to OCAS–PEP-013, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a letter to NIOSH on July 2, 2007 in which it informed NIOSH that all cases potentially affected by the release of OCAS-PEP-013 would be reopened and returned to NIOSH for a new radiation dose reconstruction.[2]

In light of NIOSH’s OCAS-PEP-013, a Director’s Order was issued on October 25, 2007 vacating the FAB’s Final Decision of April 24, 2006 under Part B and reopening these claims under Part B of EEOICPA.  The Director ordered that the case be resubmitted to NIOSH so that NIOSH could perform a new dose reconstruction.  Thereafter, the district office resubmitted the case to NIOSH.

The purpose of dose reconstruction is to determine the probability of whether an employee sustained his or her cancer in the performance of duty, in order to establish entitlement as required under the relevant portions of Part B.  In performing the radiation dose reconstruction, NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including the involvement of [Claimant #1, Claimant #2 and Claimant #3] through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On December 24, 2007, [Claimant #1] and [Claimant #3] signed Form OCAS-1, and on January 28, 2008, [Claimant #2] signed Form OCAS-1, indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they had provided to NIOSH.  The district office received the new, final NIOSH Report of Dose Reconstruction on February 1, 2008.  Pursuant to the NIOSH regulations, the district office used the information provided in this report to determine that there was a 1.16% probability that the employee’s lung cancer was caused by his radiation exposure at the Paducah GDP.[3]

On February 11, 2008, the Jacksonville district office issued a recommended decision to deny these claims under Part B.  Attached to the recommended decision was a notice of claimant rights, which stated that [Claimant #1, Claimant #2 and Claimant #3] had 60 days in which to file an objection to the recommended decision.  These 60 days expired on April 11, 2008.  They did not submit any objections to the recommended decision. 

After considering all of the evidence in the file, the undersigned hereby makes the following:

FINDINGS OF FACT

1.  [Claimant #1, Claimant #2 and Claimant #3] each filed a claim for survivor benefits under EEOICPA based on the employee’s cancer.

2.  The employee was employed at the GDP in Paducah, Kentucky, from May 12, 1952 until July 7, 1952.

3.  The employee was diagnosed with lung cancer on December 17, 2002.

4.  The employee, a widower, died on June 29, 2003.

5.  [Claimant #1, Claimant #2 and Claimant #3] are the employee’s surviving children.

6.  The probability that the employee’s lung cancer was caused by radiation at the Paducah GDP is 1.16%. 

Based on the above-noted findings of fact, the undersigned also makes the following:

CONCLUSIONS OF LAW

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired.  20 C.F.R. § 30.310(a) (2006).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

I conclude that the medical evidence establishes that the employee was diagnosed with lung cancer.  Part B of EEOICPA established a compensation program to provide a lump-sum payment of $150,000.00 and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium or silica while in the performance of duty for DOE and certain of its vendors, contractors and subcontractors.  Additionally, Part B provides for compensation to be paid to the covered employee’s eligible survivors in the event that the covered employee is deceased at the time that compensation is paid under Part B.  See 42 U.S.C. § 7284s(e).

In order for an employee to be entitled to compensation for cancer under Part B, he or she must meet the definition of a “covered employee with cancer,” which means an employee who is a “member of the Special Exposure Cohort” with a “specified cancer” or an employee whose cancer is at least as likely as not related to employment at a DOE facility.  See 42 U.S.C. § 7384l(9), (14) and (17); 42 U.S.C. § 7384n(b). 

As noted above, [Claimant #1, Claimant #2 and Claimant #3] indicated that the employee worked at a SEC location.  In pertinent part, EEOICPA defines a SEC member as follows:

The term “member of the Special Exposure Cohort” means a Department of Energy employee, Department of Energy contractor employee, or atomic weapons employee who meets any of the following requirements:

(A)  The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at [the] gaseous diffusion plant located in Paducah, Kentucky. . .and, during such employment–

(i)  was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation.

42 U.S.C. § 7384l(14)(a)(i).  As stated above, DOE was unable to verify that the employee worked at the Paducah GDP.  The documents used to establish the employee’s work history at the Paducah GDP show that the employee’s employment there ended on July 7, 1952.  [Claimant #1, Claimant #2 and Claimant #3] indicated on their claim forms that the employee did not wear a dosimetry badge.  Radioactive materials were not present at the Paducah GDP until July 1952.  Since the employee was not exposed to radiation at the Paducah GDP for an aggregate of 250 workdays after July 1952, the employee cannot be considered to be a member of the SEC.[4] 

An employee who is not a member of the SEC with a specified cancer will be considered to have sustained his or her cancer in the performance of duty if the cancer was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility.  See 42 U.S.C. § 7384n(b).  In this case, the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s lung cancer was caused by radiation received at the Paducah GDP in the performance of duty. 

Based on my review of the evidence of record and the recommended decision, I conclude that [Claimant #1, Claimant #2 and Claimant #3] are not entitled to compensation under Part B of EEOICPA because the employee is not a “covered employee with cancer.” 

Jacksonville, FL

Wendell Perez

Hearing Representative

Final Adjudication Branch

[1]  The PoC was calculated at that time to be 2.55%.

[2]  See EEOICPA Bulletin No. 07-28 (issued September 6, 2007).

[3]  Subsequently, FAB performed an independent analysis of the evidence received from NIOSH and confirmed the 1.16% proability of causation.

[4]  Pursuant to the Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2), if the employee qualifies for inclusion in the SEC on the basis of working at a GDP but has not indicated having worn a dosimeter on the EE-3 form, the claims examiner will be required to determine whether the employee had exposure within a time period during which his or her exposure was comparable to a job that is or was monitored through the use of dosimetry badges.  For the Paducah GPD, the comparison dates of employment are July 1952 through February 1, 1992.  This date has been established as the first date radioactive material was introduced into the plant.  Therefore, for SEC purposes, the accepted beginning date of the employee’s exposure to radiation at the Paducah GDP is July 1, 1952.

Compensable occupational illness

EEOICPA Fin. Dec. No. 1002-2005 (Dep’t of Labor, January 17, 2006)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for compensation and medical benefits for the condition of thyroid cancer, and denies your claim based on the condition of brain tumor, under Part B of the Act.

STATEMENT OF THE CASE

On August 6, 2001, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of thyroid cancer and brain tumor.   

You submitted a Form EE-3 (Employment History) indicating that you worked for Pan American Airlines (September 3, 1963 to April 21, 1970) and Reynolds Electrical & Engineering Company (REECo) (April 21, 1970 to February 2, 1994), at the Nevada Test Site.  A representative of the Department of Energy (DOE) verified that you were employed with REECo for four periods:  November 16 to December 30, 1970; April 21 to October 11, 1971; March 30, 1972 to July 27, 1973; and March 11, 1974 to September 30, 1993.  Based on dosimetry records, which indicated you were present at the Nevada Test Site from September 3, 1963 to April 21, 1970, that employment was verified for Pan American World Airways.  The Nevada Test Site is recognized as a covered Department of Energy facility site from 1951 to the present.  REECo is indicated as a contractor of the DOE from 1952 to 1995.  See DOE, Office of Worker Advocacy Facility List, http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (retrieved January 16, 2006).

The medical documentation you submitted included pathology reports and medical reports for your treatment of a brain tumor and thyroid cancer.  On May 22, 1993 you were diagnosed with a large meningioma of the brain and underwent resection, which reoccurred necessitating resection again on October 16, 2000.  The district office requested an opinion from your physician, Jay Tassin, M.D, whether your brain tumor was benign or cancerous.  On November 27, 2001, he responded reluctantly that “It’s a difficult question, as [] meningioma is ‘benign’ by histologic criteria, and unlikely to spread through the body via hematogenous or lymphatic seeding.”  Dr. Tassin noted the tumor has affected your condition of health and quality of life.  Other evidence of record indicates that on April 22, 1998 you underwent total throidectomy and Stephen D. McBride, M.D., diagnosed “follicular carcinoma.” 

To determine the probability of whether you sustained cancer in the performance of duty, the Seattle district office referred your claims to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  See 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction dated May 27, 2005. 

The radiation dose reconstruction report indicates that an efficiency model was used for the dose reconstruction.  For purposes of your radiation dose reconstruction, NIOSH used only your external dose and calculated missed dose during your work as a janitor and painter, at the Nevada Test Site.  The dose reconstruction was 8.428 rem to the thyroid.  NIOSH Report of Dose Reconstruction, p. 4.  Thus the dose is reported is an “underestimate” of your total occupational radiation dose.  NIOSH Report of Dose Reconstruction, p. 6.  The Final Adjudication Branch notes that the employment period used by NIOSH, based on dosimetry records provided by the DOE, was January 1963 to September 30, 1993 (more than the period noted above). 

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of thyroid cancer and reported in its recommended decision that there was a 51.43% probability that your thyroid cancer was caused by radiation exposure at the Nevada Test Site.  

On September 2, 2005, the Seattle district office recommended acceptance of your claim for compensation based on the condition of thyroid cancer, with medical benefits retroactive to the date of filing, August 6, 2001. 

FINDINGS OF FACT

1.         On August 6, 2001, you filed a claim for benefits. 

2.         You were diagnosed with thyroid cancer on April 22, 1998.    

3.         You worked in covered employment for REECo and Pan American World Airways, at the Nevada Test Site from September 3, 1963 to April 21, 1970, and for REECo, at the Nevada Test Site from November 16 to December 30, 1970; April 21 to October 11, 1971; March 30, 1972 to July 27, 1973; and March 11, 1974 to September 30, 1993. 

4.         The diagnosis of cancer was made after you started work at a Department of Energy facility.

5.         The NIOSH Interactive RadioEpidemiological Program indicated a 51.43% probability that your thyroid cancer was caused by radiation exposure at the Nevada Test Site.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on September 2, 2005.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a). 

The Final Adjudication Branch calculated the probability of causation for your thyroid cancer using the NIOSH-IREP software program.  These calculation confirmed the 51.43% probability of causation that your thyroid cancer was “at least as likely as not” (a 50% or greater probability) caused by radiation exposure you incurred while employed at the Nevada Test Site.

While you provided proof you were diagnosed with a brain tumor, it is not a covered occupational illness.  Under Part B of EEOICPA, “only malignant tumors are covered.”  Federal (EEOICPA) Procedure Manual, Chapter 2-600.3a(1)(a) (Sept. 2004).  The available medical information does not support that meningioma is a malignant cancer, to fit within the coverage of Part B of EEOICPA.  Your claim based on brain tumor under Part B is denied, although you may wish to file a claim under Part E. 

Based on your covered employment at a covered DOE facility site and the medical documentation showing your diagnosis of thyroid cancer, and the determination that your cancer was at least as likely as not related to your occupational exposure at the Nevada Test Site, and thus sustained in the performance of duty, you are a “covered employee with cancer” under EEOICPA.  See 42 U.S.C. § 7384l(1)(B), (9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2. 

You are entitled to $150,000.00 compensation and reimbursement of medical expenses related to the condition of thyroid cancer, retroactive to August 6, 2001, the date you filed your claim.  See 42 U.S.C. §§ 7384s and 7384t; 20 C.F.R. § 30.400(a). 

Washington, DC

Rosanne M. Dummer

Hearing Representative

EEOICPA Fin. Dec. No. 13679-2002 (Dep’t of Labor, January 13, 2005)

NOTICE OF FINAL DECISION AND REMAND ORDER FOLLOWING A HEARING

This is the final decision and remand order of the Final Adjudication Branch concerning your claim for compensation under Part B of 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 claim for benefits based on your cancer and nesidioblastosis is denied.  However, the case is remanded to the Jacksonville district office for the reason provided below.  Adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.

STATEMENT OF THE CASE

On October 25, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for distal pancreas and spleen nesidioblastosis.

On the Form EE-3, Employment History, you stated you were employed as an electrical worker by Westinghouse at the Savannah River Site (SRS) in Aiken, South Carolina, for the period of May 8, 1989 to April 1, 2001.  The DOE verified these employment dates.  You submitted medical evidence establishing that you were diagnosed with nesidioblastosis on September 21, 2000, and malignant epithelioid hemangioendothelioma on October 25, 2002. 

A modification order of January 21, 2003, vacated the October 24, 2002 decision of the Final Adjudication Branch, which affirmed the recommended denial of benefits dated August 19, 2002.

In order to be eligible for benefits under Part B of the Act, the evidence must establish that your cancer (hemangioendothelioma) was at least as likely as not related to your employment at a covered facility, within the meaning of the Act.  42 U.S.C. § 7384n.

To determine the probability of whether you sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with the EEOICPA implementing regulations.  20 C.F.R. § 30.115.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On April 8, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on April 26, 2004.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 9.37% probability that your cancer was caused by radiation exposure at the SRS.  42 C.F.R. § 81.20.  The Final Adjudication Branch independently analyzed the information in the NIOSH report, confirming the 9.37% probability.

On May 3, 2004, the Denver district office issued a recommended decision concluding that you are not entitled to compensation since your cancer is not covered under Part B of the Act.

The recommended decision informed you that you had sixty days to file any objections, and that period ended on July 2, 2004.  On May 13, 2004, the Final Adjudication Branch received your letter of objection and request for a hearing dated May 12, 2004.   In this letter, you discussed the progression of your health problems and their effect on your life.  You made the following objections:

1)  Although you were in perfect health when you began working at the SRS, your health started to deteriorate after working there. 

2)  The probability of causation was 9.37%; therefore, no one can say conclusively that your present condition was not caused by employment at the SRS. 

The hearing was held on August 18, 2004, in North Augusta, South Carolina.  During the hearing, you presented the following objections:

3)  Before you were trained differently, you used to carry sources very close to your feet.  HT page 8, line 17, through page 9, line 3.  In addition, you would push contaminated material around with your feet to clear “the huts.”  HT page 9, lines 3 through 9, and page 10, line 7, through page 10, line 25.  You wore the dosimetry badge on your chest, but your cancer developed in your feet, where you think more radiation was received.  In other words, since the dosimetry badge was positioned on your chest, it did not accurately measure the radiation you received to your feet.  HT page 9, line 8, through page 10, line 6, and page 10, line 25, through page 11, line 5.  Sometimes you wore safety shoes or rubber booties, but when you were sourcing the vamps, often you would just have on tennis shoes.  HT page 11, lines 12 through 16.  Around 1995, new procedures were instituted, including the placement of the source in a lead box after using it.  This causes you to think that the source was contaminated with radiation back when you were carrying it exposed right near your feet.  HT page 11, line 17, through page 12, line 17.

4)  Besides your hemangioendothelioma, you were also diagnosed with nesidioblastosis, a rare pancreatic condition, after working at the SRS.  The fact that you have two rare conditions makes you think you were exposed to a lot of toxic material.  HT page 12, line 25, through page 14, line 17.

5)  You provided additional information about the tank farms.  You are discovering that you were exposed to more chemicals and types and intensity of radiation than you were told originally. HT page 19, line 22, through page 20, line 24.

6)  You were often exposed to radon and RADCON would make you sit in a hut for hours until they told you that you were clear and could leave.  Most of the time, the monitors would pick up the activity from your shoes.  You read some research on a website from N. B. Anderson in Houston that said radon is a possible cause of your cancer.  HT 23, line 12, through page 25, line 21.

In accordance with the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e), 30.314(f).  By letter dated September 15, 2004, the transcript was forwarded to you.  No response was received.  However, new medical evidence was submitted following the issuance of the recommended decision.  Although this new evidence appears to mostly concern previously diagnosed conditions and their sequelae, some conditions mentioned do not appear to have been addressed.

Pursuant to the implementing regulations, if the claimant objects to NIOSH’s dose reconstruction the Final Adjudication Branch (FAB) will evaluate the factual findings upon which NIOSH based the dose reconstruction.  However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB.  20 C.F.R. § 30.318.      

In reference to your first objection, although your cancer occurred after your employment at the SRS, according to Part B of the Act, the connection between your cancer and your employment must be causal, not temporal.  In other words, the evidence must show that your cancer was caused in the performance of duty, not that it occurred during or after your employment.  42 U.S.C. § 7384n(b).  This is a challenge of fact, specifically a challenge to regulations.

Concerning your second objection, Part B of the Act states that a cancer is shown to have occurred in the performance of duty if the evidence shows that it was “at least as likely than not” caused by radiation exposure at work.  42 U.S.C. § 7384n(b).  “At least as likely as not” is defined by a 50% or more probability of causation.  42 C.F.R. § 81.2.  “Probability of causation” means the likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty.  In statistical terms, it is the cancer risk attributable to radiation exposure divided by the sum of the baseline cancer risk (the risk to the general population) plus the cancer risk attributable to the radiation exposure.  42 C.F.R. § 81.4(n).  This is a challenge of fact, specifically a challenge to statutory regulations.

The third objection concerns the correction for the location of the cancer in the foot to the dosimeter worn on the chest.  As is noted in the “External Dose” section under the “Radiation Type, Energy, and Exposure Geometry” sub-section of the dose reconstruction report, the distribution of your exposure geometry and radiation energies was selected to maximize dose. Also, to ensure that the estimated dose was maximized, an organ dose conversion factor of 1.0 was used to calculate the dose to the foot for photons per NIOSH’s “Technical Basis Document for the Savannah River Site To Be Used for EEOICPA Dose Reconstructions,” Rev. 1, August 2003.  While a specific correction for the badge location on the body is not made, an organ dose correction factor of 1.0, which is claimant-favorable, is used to encompass this issue.  During a discussion with a NIOSH health physicist, it was determined that you had 17 mrem recorded deep dose from two positive readings in your dose record.  NIOSH assigned 2,574 mrem in this dose reconstruction.  This overestimate of the dose to the foot appears to be sufficient to address any uncertainty about inferring dose from the dosimeter on the chest to the foot.

The “Dose from Radiological Incidents” section of your dose reconstruction report addresses the issues you discuss concerning the radioactive cesium source that would hang a few inches from your feet as you carried it.  The discussion in this section of the report notes that any external dose received would have been measured or detected by the routine monitoring systems in place.  This is a challenge of the dose reconstruction methodology, which is binding on the FAB per 20 C.F.R. § 30.318(b). 

In reference to your fourth objection, although you were diagnosed with two rare conditions, NIOSH only considers primary cancers when performing the dose reconstruction and nesidioblastosis is not considered a covered occupational illness under Part B of the Act.  While Part B of the Act extends benefits based on cancers which are caused by exposure to radiation, Part B does not consider cancer caused by other toxic materials.  This is a challenge of fact, specifically a challenge to the statute.

In your fifth objection, you discuss your concerns that you were exposed to more chemicals and radiation at the tank farms than were considered in the dose reconstruction.  Your discussion in the hearing transcript is not specific to any additional radiation or radionuclides that were present at the tank farm.  The SRS site profile contains the assumptions used for exposures to workers at the tank farm and these assumptions are considered by NIOSH to result in overestimates of dose based on the energy of the radiation and the radionuclides assumed.  In addition, the SRS site profile is a living document and as such will be revised if significant information is found that changes the assumptions and parameters used in dose reconstructions.  If these changes require a denied case to be reevaluated, NIOSH will review all affected dose reconstructions to determine if the doses would be significantly increased.  As stated above, Part B of the Act only considers exposure to radiation, not chemicals.  This is a challenge of the dose reconstruction methodology, which is binding on the FAB per 20 C.F.R. § 30.318(b). 

The sixth objection concerns the presence of radon.  As stated above, the SRS site profile contains the assumptions used for exposures to workers at the tank farm and these assumptions are considered by NIOSH to result in overestimates of dose based on the energy of the radiation and the radionuclides assumed.  Due to the energy of radiation from radon, the leather of the work boot or shoes would significantly attenuate the dose to the foot.  This is a challenge of the dose reconstruction methodology, which is binding on the FAB per 20 C.F.R. § 30.318(b). 

In reference to your discussion of the research publication by N. B. Anderson, NIOSH is constantly reviewing new scientific evidence that would significantly affect the cancer models used in the dose reconstructions and in NIOSH-IREP.  In fact, NIOSH has recently begun a study of occupational exposures at DOE facilities and will apply any significant findings to the cancer models used in the dose reconstructions and in NIOSH-IREP.  This is a factual objection and as stated above NIOSH is constantly reviewing new scientific evidence that would significantly affect the cancer models used in the dose reconstructions and in NIOSH-IREP.  

In summary, your objections are challenges to NIOSH methodology and challenges of fact with insufficient evidence to warrant a rework by NIOSH.

FINDINGS OF FACT

1)  On October 25, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on your distal pancreas and spleen nesidioblastosis.

2)  You were employed at the SRS in Aiken, South Carolina, for the period of May 8, 1989 to April 1, 2001.

3)  You were diagnosed with nesidioblastosis on September 21, 2000, and malignant epithelioid hemangioendothelioma on October 25, 2002.  Nesidioblastosis is not a covered occupational illness under Part B of the Act and implementing regulations.  42 U.S.C. § 7384l(15); 20 C.F.R. § 30.5(z).

4)  Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for malignant epithelioid hemangioendothelioma.  The district office calculated a probability of causation of 9.37% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility.  The Final Adjudication Branch independently analyzed the information in the NIOSH report, confirming the 9.37% probability.

5)  On May 3, 2004, the Denver district office issued a recommended decision concluding that the dose reconstruction estimates were performed in accordance with the Act; that the probability of causation calculation was completed in accordance with the Act and implementing NIOSH regulations; that you did not sustain your hemangioendothelioma in the performance of duty as required by Part B of the Act; and that you are not entitled to compensation in the amount of $150,000 as outlined under Part B of the Act.  42 U.S.C. §§ 7384n(d), 7384n(c)(3), 7384n(b), 7384s(a); 42 C.F.R. §§ 81.0 et seq., 81.21.

6)  On May 13, 2004, the Final Adjudication Branch received your letter of objection and request for a hearing dated May 12, 2004.  

7)  The hearing was held on August 18, 2004, in North Augusta, South Carolina.  The objections raised are challenges to NIOSH methodology and challenges of fact with insufficient evidence to warrant a rework by NIOSH.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Denver district office on May 3, 2004, and finds that the evidence submitted before, during, or after the hearing does not establish that your malignant epithelioid hemangioendothelioma was at least as likely as not related to your employment at a covered facility as specified by the Act.  42 U.S.C. § 7384n.  The evidence in the record does not establish that you are entitled to compensation under the Act because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that your cancer was caused by radiation exposure received at the SRS in the performance of duty.  Therefore, I find that the decision of the Denver district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted. 

Your claim for benefits on the basis of your nesidioblastosis is denied since this is not a beryllium illness, cancer, or chronic silicosis, and cannot be considered a covered occupational illness under Part B of the Act and implementing regulations.  42 U.S.C. § 7384l(15);

20 C.F.R. § 30.5(z).

As explained in § 30.110(b) of the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.”  20 C.F.R. § 30.110(b).  The undersigned hereby denies payment of lump-sum compensation and medical benefits under Part B of the Act.

However, the case is remanded to the Jacksonville district office for review of the medical evidence submitted following the issuance of the recommended decision.  After reviewing the medical reports in accordance with EEOICPA and the implementing regulations, the district office should issue a new recommended decision.

Jacksonville, FL

Mark Stewart

Hearing Representative

EEOICPA Fin. Dec. No. 60418-2005 (Dep’t of Labor, June 21, 2005)

NOTICE OF FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD 

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).  Since [Claimant #2] requested a hearing, but then did not attend the scheduled hearing, a review of the written record was performed, in accordance with the implementing regulations.  20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations.  20 C.F.R. § 30.310.  In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  20 C.F.R. § 30.313.

For the reasons set forth below, your claims for benefits are denied.

STATEMENT OF THE CASE

On August 3, 2004, [Claimant #2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, and on August 11, 2004, [Claimant #1] filed a Form EE-2.  The claims were based, in part, on the assertion that your late mother was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Forms EE-2 that you were filing for lung cancer, hypoxia, obstructive jaundice, beryllium sensitivity, and chronic beryllium disease.

On the Form EE-3, Employment History, you stated that the employee was employed at the American Beryllium Company in Tallevast, Florida, from September 1982 to June 1992.  The district office verified this employment as September 1, 1982 to June 1, 1992 through Social Security earnings records and other employment records.

To support your claim that the employee had a condition that was covered by § 7384 of the EEOICPA, you initially submitted medical evidence consisting of records of the employee’s diagnosis and treatment for lung cancer in 2000.  All of the medical evidence of the employee’s treatment for a chronic lung condition was dated after January 1, 1993.  There is no provision for coverage of cancer as a result of employment with a designated beryllium vendor.[1]

Because the medical evidence submitted did not diagnose a compensable occupational illness, the district office provided you the opportunity to substantiate your claims by sending development letters dated August 30, 2004; November 17, 2004; and January 7, 2005.  Those letters explained the needed information, requested additional medical evidence, and allowed time for response.  No additional medical evidence was received.

Because the necessary elements to establish a diagnosis of a compensable occupational illness under the Act were not met, the Jacksonville district office issued a recommended denial on February 11, 2005.  The recommended decision found that the evidence does not establish that the employee was diagnosed with chronic beryllium disease or beryllium sensitivity.  42 U.S.C. § 7384l(8).  The recommended decision also found that hypoxia, obstructive jaundice, and lung cancer are not compensable occupational illnesses as described in the Act.  42 U.S.C. § 7384.

Section 7384 of the Energy Employees Occupational Illness Compensation Program Act established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the DOE and certain of its vendors, contractors, and subcontractors.  42 U.S.C. § 7384.  Eligible survivors may receive lump sum compensation, if applicable.  Those “occupational illnesses” covered by the EEOICPA are specifically described in § 7384 of the Act as “covered beryllium illness, cancer referred to in § 7384l(9)(B)[2] of this title, specified cancer, or chronic silicosis, as the case may be.”  42 U.S.C. § 7384l(15).  There are no provisions under § 7384 of the EEOICPA to cover any other illnesses, even if that illness may be related to employment at a covered facility. 

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act.  42 U.S.C. § 7384l(7).  Due to confirmation of the employee’s employment in a facility where beryllium was present, the employee is considered to be a “covered beryllium employee.”  However, in order to receive medical benefits and/or compensation, the employee must have been diagnosed with a covered beryllium illness, in accordance with the Act and implementing regulations.  42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205.  “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease.  42 U.S.C. § 7384l(8). 

You claimed that the employee was diagnosed with beryllium sensitivity and chronic beryllium disease.  According to the Act, chronic beryllium disease is established by the following:

(A)  For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including–

(i)   a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

(ii)  a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B)  For diagnoses before January 1, 1993, the presence of–

(i)  occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

(iii) any three of the following criteria:

(I)   Characteristic chest radiographic (or computed tomography (CT)) abnormalities.

(II)  Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.

(III) Lung pathology consistent with chronic beryllium disease.

(IV) Clinical course consistent with a chronic respiratory disorder.

(V)  Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).  42 U.S.C. § 7384l(13).

Given that all of the medical documentation that was submitted for the employee’s treatment for a chronic lung disease was dated post-1993, the criteria for a diagnosis of chronic beryllium disease diagnosed after January 1, 1993 was applied to the submitted medical evidence.  Without an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells or a pathology report from a lung tissue biopsy that confirms the presence of granulomas, the criteria for a diagnosis of chronic beryllium disease post-1993 can not be established.  There is no evidence of record that the employee was tested for beryllium sensitivity or that the employee had a lung tissue biopsy that confirmed the presence of granulomas.

The EEOICPA implementing regulations are clear as to the burden of proof placed on every claimant under the Act.  Submitting medical evidence in support of a claim is ultimately the claimant’s responsibility, as explained in the implementing regulations.  20 C.F.R. § 30.111.  This section states that “the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category. . .the claimant also bears the burden of providing to the OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”

OBJECTIONS

The recommended decision informed you that you had 60 days to file any objections, and that period ended on April 12, 2005.  On February 22, 2005, the Final Adjudication Branch received [Claimant #2’s] letter of objection dated February 16, 2005.  In the letter, you stated that you disagreed with the recommended decision; that your mother was employed at American Beryllium for 10 years and her job was to deburr the beryllium, which released beryllium dust into the air; that the records of company annual physicals have disappeared; that she died before tests for beryllium sensitivity were available; that you could not obtain medical records because of the time that has passed; that she took many over-the-counter drugs for sinusitis and bronchitis and allergies; that she died of the same symptoms as the disease of CBD; and that negligence was the reason for her death.  You requested an oral hearing, which was scheduled for

April 20, 2005 in St. Petersburg, Florida.

When you did not appear for the hearing at the scheduled time, you were contacted by telephone.  You stated that you were in the process of moving and would not be able to attend.  Therefore, the request for a hearing was converted to a review of the written record.

The district office verified that your mother worked at American Beryllium for at least 10 years.  However, neither the district office nor the FAB is granted flexibility in relaxing the statutory requirements for a diagnosis of beryllium sensitivity or chronic beryllium disease.  Without an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells or a pathology report from a lung tissue biopsy that confirms the presence of granulomas, the criteria for a diagnosis of chronic beryllium disease post-1993 can not be established.  

FINDINGS OF FACT

1.  You each filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.

2.  You claimed the employee’s conditions of chronic beryllium disease, beryllium sensitivity, hypoxia, lung cancer, and obstructive jaundice.  

3.  The employee was employed at the American Beryllium Company.  Since beryllium was present at the American Beryllium Company during the time of the employee’s employment, the employee is considered a “covered beryllium employee,” as defined in the Act. 

4.  The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

5.  You also claimed the employee’s other lung conditions of hypoxia and lung cancer.  Hypoxia is a symptom, and is not a beryllium illness, cancer or silicosis, and, therefore, cannot be considered a compensable occupational illness as defined by the Act and implementing regulations.  Lung cancer, while a compensable occupational illness in certain situations, is not considered as such for employees of beryllium vendors.

6.  The Jacksonville district office issued the recommended decision on February 11, 2005.

7.  On March 21, 2005, the Final Adjudication Branch received [Claimant #2’s] letter of objection dated March 10, 2005, and a review of the written record was conducted.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on February 11, 2005, and finds that the evidence submitted does not establish that the employee was diagnosed with chronic beryllium disease, as defined in the Act, or any other compensable occupational illness, as defined in the Act and implementing regulations.  42 U.S.C. §§ 7384l(13), 7384l(15); 20 C.F.R. § 30.5(z).  I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted.  As explained in the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.”  20 C.F.R. § 30.110(b).  The undersigned hereby denies payment of lump sum compensation and medical benefits under § 7384 of the Act. 

42 U.S.C. § 7384.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

[1] EEOICPA Bulletin No. 03-08 (issued December 16, 2002).

[2] 42 U.S.C. § 7384l(9)(B) describes a “covered employee with cancer” as “An individual with cancer specified in subclause (I), (II), or (III) of clause (ii), if and only if that individual is deemed to have sustained that cancer in the performance of duty in accordance with § 7384n(b)” of the EEOICPA.  Clause (ii) states that to be covered for cancer, the employee must have been a DOE employee, DOE contractor employee or an atomic weapons employee who contracted the cancer after beginning such employment.

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).

Dose reconstruction

EEOICPA Fin. Dec. No. 884-2002 (Dep’t of Labor, May 31, 2006)

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim under Part B of the Act is denied.  Adjudication of the claim filed under Part E of the Act is deferred pending further development.

STATEMENT OF THE CASE

On August 7, 2001, you submitted a claim (Form EE-1) for benefits under Part B of EEOICPA, and identified colon cancer as the diagnosed condition on which your claim was based.  You submitted an Employment History (Form EE-3) on which you stated that you were employed: by Quadrex , Inc. at the Oak Ridge Gaseous Diffusion Plant (K-25)[1] from January 1981 to January 1987; by Chemical Waste Management, at K-25, from April 1, 1991 to October 30, 1993; by Ferguson Harbour, Inc. at the Portsmouth Gaseous Diffusion Plant (PGDP)[2] from November 1, 1993 to May 30, 1994; by DKM Construction, Inc. from May 1, 1994 to May 17, 1994, and by R & D Development, Inc. from January 1, 1994 to October 30, 1994, both at the Portsmouth GDP; by the Foley Company, at the Oak Ridge National Laboratory (X-10)[3] from November 1, 1994 to December 1, 1996; by FedEx Custom Critical, as a team driver making deliveries across Canada and the United States, including Department of Energy (DOE) facilities, from January 19, 1997 to April 18, 2000; and by Safety and Ecology, Inc., at the Brookhaven National Laboratory(BNL)[4] from May 18, 2000 to March 23, 2001.

As medical evidence, you submitted numerous records, including a pathology report, dated May 15, 2001, from Joseph Eatherly, M.D., which provides a diagnosis of well-differentiated adenocarcinoma of the colon; and an operative report from Francis Cross, M.D., dated May 21, 2001, which provides a diagnosis of carcinoma of the cecum. 

You submitted six affidavits (Form EE-4) concerning your employment at K-25, the Portsmouth GDP, and at the BNL. There was an affidavit from Kenneth Burch, who identified himself as a friend.  He indicated that you worked for Quadrex at K-25 from January 1, 1981 to January 1, 1987, and that he “lived at the same address for a short period of time.”

Your wife, [Employee’s wife], completed four of the six affidavits, indicating that you worked: for Chemical Waste Management at K-25 from April 1, 1991 to October 30, 1993; at the Portsmouth GDP from November 1, 1993 to October 30, 1994; for the Foley Company at X-10 from November 1, 1994 to December 1, 1996; at the BNL from May 18, 2000 to March 23, 2001. You also submitted copies of an assortment of employment records, which included various certificates regarding training courses, internship records, training attendance reports and sign in sheets, which you contend provides evidence of employment with, or for, the Portsmouth GDP, FedEx, X-10, Quadrex, and the BNL.

In October 2001, you provided the district office with a copy of a letter to you dated June 20, 1992, from the Quadrex Corporation/ Quadrex Recycle Center. The first paragraph of the letter states, “This is to inform you [Employee], Social Security Number [Number], that you were monitored for ionizing radiation for the period indicated and incurred the below listed exposure while performing activities at Quadrex Recycle Center, Oak Ridge, Tennessee.”  The letter indicates that the exposure site was the Recycle Center, and it documents exposure dates between October 25, 1982 and June 24, 1984.  There are no dates listed for the period between November 24, 1982 and October 21, 1983.    

You indicated in an affidavit dated January 19, 2002, that your employment dates with Quadrex, at K-25, were from November 24, 1982 to October 21, 1983. In correspondence dated November 11, 2001, the DOE verified your employment at K-25 for the period of July 7, 1992 to February 4, 1993.

On February 26, 2002, the Jacksonville district office issued a decision on your claim, recommending approval of the claim, after concluding that you were employed for an aggregate of at least 250 work days, at K-25, prior to February 1, 1992.

The Oak Ridge Natural Laboratory, via correspondence dated September 3, 2002, advised that they were unable to locate any records regarding your claimed employment.

A representative of US ECOLOGY, successor company to Quadrex, and operating at the same address as did Quadrex in Oak Ridge, Tennessee, sent a memo to the FAB, dated May 6, 2002, which provided copies of your Quadrex dosimetry records, and indicated that US ECOLOGY was not able to verify your claim that any field assignments were made to K-25 from Quadrex.

On July 15, 2002, the FAB issued a remand order, sending the claim back to the district office to determine if, in fact, you had 250 days of aggregate employment prior to February 1, 1992 at a gaseous diffusion plant.

On December 19, 2002, the district office received a copy of your Social Security records for the time period of January 1987 thru December 2001. In September 2002, the BNL provided information reflecting employment dates of June 5, 2000 to March 9, 2001. On September 16, 2002, the DOE provided confirmation of your work history at the Portsmouth GDP. The DOE was only able to provide your termination date of November 30, 1994.

The district office was unable to establish that Quadrex was a DOE contractor. The district office was also unable to establish that you worked an aggregate of 250 work days at a gaseous diffusion plant prior to February 1, 1992.  Therefore, to determine the probability of whether you sustained your colon (cecum) cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in January 2003, in accordance with the EEOICPA implementing regulations.  On April 4, 2004, you signed a Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  On April 22, 2004, NIOSH submitted the Final Report of Dose Reconstruction to the district office. 

The dose reconstruction performed by NIOSH was to have been performed using verified dates of covered employment as determined by the district office. NIOSH utilized your verified dates of employment, however, they also added in dates of employment which had not been verified by the district office.  NIOSH added unverified employment at K-25 from December 1, 1991 to July 6, 1992; and unverified employment at the Portsmouth GDP from March 3, 1995 to December 31, 1996. The district office used the information provided in the final NIOSH report, including data obtained utilizing the unverified employment dates, to determine that there was a 20.14% probability that your colon (cecum) cancer was caused by radiation exposure at a covered DOE facility.

On March 7, 2005, you filed a Request for Review by Physician Panel, under the EEOICPA, with the Department of Energy, seeking assistance with a claim for state workers’ compensation benefits under Part D (since replaced by Part E) of EEOICPA.  You claimed colon cancer and lung scarring as the conditions that you felt were caused by employment at DOE facilities.

On March 7, 2006, the DOE advised the Jacksonville district office that Quadrex was not involved with remediation of sludge ponds at K-25 during the 1980’s.  

On March 15, 2006, the Jacksonville district office issued a recommended decision which concluded: that you do not qualify as a member of the Special Exposure Cohort, as you were not employed at a gaseous diffusion plant prior to February 1, 1992; that NIOSH performed dose reconstruction estimates in accordance with applicable statutes and regulations; and that the Department of Labor completed the Probability of Causation calculation in accordance with applicable statutes and regulations.   The district office recommended denial of your claim based on its conclusions.

After considering the written record of the claim forwarded by the district office, and after conducting any further development of the claim as was deemed necessary, the Final Adjudication Branch hereby makes the following:

FINDINGS OF FACT

  1. You filed a claim for benefits under Part B of the EEOICPA on August 7, 2001, based on your colon cancer.

  1. You were employed at K-25, a DOE facility, from July 7, 1992 through February 4, 1993; at the Portsmouth GDP, a DOE facility, from June 2, 1994 to November 30, 1994; and at the Brookhaven National Laboratory, a DOE facility, from June 5, 2000 to March 9, 2001.
  1. You were not employed for an aggregate of 250 work days at a gaseous diffusion plant prior to February 1, 1992.
  1. You were diagnosed with cancer of the colon (cecum) on May 15, 2001.
  1. NIOSH reported dose estimates for your cancer for each year of your employment at a DOE facility, through the date that your colon cancer was diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates are documented in the “NIOSH Report of Dose Reconstruction under the EEOICPA,” provided to the district office on April 22, 2004.
  1. NIOSH included several periods of unverified DOE employment to produce the dose reconstruction; at K-25, from December 1, 1991 to July 6, 1992; and at the Portsmouth GDP from March 3, 1995 to December 31, 1996.  There is no substantive evidence that you were employed at K-25 between December 1, 1991 and July 6, 1992.
  1. On May 26, 2006, the Final Adjudication Branch independently analyzed the information in the NIOSH report and confirmed the 20.14% probability of causation.
  1. You have not filed any objections to the recommended decision.

Based on the above-noted findings of fact in this claim and pursuant to the authority granted by the EEOICPA regulations, the Final Adjudication Branch hereby also makes the following:

CONCLUSIONS OF LAW

Section 30.310(a) of the EEOICPA implementing regulations provides that, “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.”  20 C.F.R. §§ 30.310 and 30.316(a).  The allowed time to file an objection has passed, and you have not filed an objection to the recommended decision.

Eligibility for EEOICPA compensation based on cancer may be established by demonstrating that the employee is a member of the “Special Exposure Cohort” (SEC) who contracted a specified cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee).  42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

In order for the employee to qualify as a member of the SEC under 42 U.S.C. § 7384l (14) (A) of the Act, the following requirements must be satisfied:

(A)  The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – –

(i)        was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii)       worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

The evidence of record does not establish that you were employed at a gaseous diffusion plant prior to February 1, 1992. The weight of the evidence supports that Quadrex did not have a contractual relationship with K-25 during your claimed employment at K-25 from November 24, 1982 to October 21, 1983.  You have asserted that during this period of time you were working onsite at K-25, assisting with the pumping of ponds into underground tanks, and loading mud into drums.  The DOE has advised that Quadrex was not involved with the remediation of sludge ponds at K-25 in the 1980’s.

Assuming, for the purposes of argument, that you were employed as a DOE contractor at K-25 for the period of November 24, 1982 to October 21, 1983, this period of time does not satisfy the requirement of being employed at a gaseous diffusion plant for an aggregate of 250 work days before February 1, 1992.  Your other alleged employment at a gaseous diffusion plant, prior to February 1, 1992, is with Chemical Waste Management at K-25, for the period of December 1, 1991 to July 6, 1992.  Records received from the Social Security Administration do not indicate you were employed in 1991 for Waste Management.  The DOE has confirmed your employment at K-25 from July 7, 1992 through February 4, 1993.  This period of time is supported by the Social Security Administration records.  Therefore, even assuming, for purposes of argument only, that you were employed at K-25 for the period of November 24, 1982 to October 21, 1983, given a lack of affirmative evidence that you were employed at a gaseous diffusion plant at any other time prior to February 1, 1992, your aggregate work days would not amount to 250 prior to February 1, 1992.  Accordingly, you do not qualify as a member of the SEC.  42 U.S.C. § 7384l (14)(A).                                                                                                                                                             

Inasmuch as you do not qualify as a member of the SEC, to establish eligibility for compensation as a result of cancer, it must first be established that you were a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment.  42 U.S.C. § 7384l (9) and 20 C.F.R. § 30.210. 

While EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is.  Section 7384l(11) of EEOICPA defines a DOE contractor employee as:

A.     An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.

B.     an individual who is or was employed at a Department of Energy facility by–

(i)      an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii)    a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined in EEOICPA Bulletin No. 03-27 (issued May 28, 2003).  The following definitions have been adopted by the DEEOIC:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.

Service – In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing such services would be janitors, construction and maintenance works.

Contract –   An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”

Delivery of Goods – The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including construction and maintenance workers.

You have alleged covered employment as a team driver with FedEx Custom Critical. You have also indicated that you actually worked for Tires on Fire Express, which had a contract with FedEx.  There is no evidence of record indicating that there was a contract between the DOE and FedEx.  The evidence indicates that, irregardless of whether a contract existed between Tires on Fire Express and the DOE, that your job with Tires on Fire did not involve you providing services, producing materials, or managing operations at a DOE facility.  Accordingly, your employment at FedEx Custom Critical does not qualify as covered employment under the Act. EEOICPA Bulletin No. 03-27 (issued May 28, 2003). 

The balance of the evidence of record does establish that you are a DOE contractor-employee, who contracted colon cancer, after beginning your employment at several DOE facilities.  On May 26, 2006, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for your colon cancer with the software program known as NIOSH-IREP.  These calculations show that there is a 20.14% probability that your colon cancer was caused by your exposure to radiation during the period of your covered employment.

Because the evidence of record does not establish that your colon cancer was “at least as likely as not” (a 50% or greater probability) caused by your employment at a DOE facility within the meaning of 42 U.S.C. § 7384n of the Act, I find that you are not entitled to benefits under Part B of the Act, and that your claim for compensation must be denied.

Washington, DC                                                                                                          

Steven A. Levin

Hearing Representative

Final Adjudication Branch

[1] Oak Ridge Gaseous Diffusion Plant (K-25) was a Department of Energy facility from 1943 to 1987 and from 1988 to the present in remediation, where radioactive materials were present, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm).

[2] The Portsmouth Gaseous Diffusion Plant (PGDP), in Piketon, Ohio, is a covered Department of Energy facility from 1952 to July 28, 1998, where radioactive materials were present, as well as from July 29, 1998 to the present, when the facility has been in remediation, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm).               

[3] The Oak Ridge National Laboratory, also known as X-10, was a DOE facility from 1943 to present, where radioactive materials were present, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm).

[4] The Brookhaven National Laboratory was a Department of Energy facility from 1947 to present, where radioactive material was present, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm).

EEOICPA Fin. Dec. No. 2597-2002 (Dep’t of Labor, July 8, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On June 6, 2003, the Jacksonville district office issued a decision recommending that you are entitled to medical benefits effective April 28, 2003 for colon cancer.

The district office referred the claims for skin cancer and cancer of the pyriform sinus to the National Institute for Occupational Safety and Health (NIOSH).  However, the pyriform sinus is part of the hypo pharynx.  EEOICPA Bulletin No. 02-28, Effective September 5, 2002, further defines that the hypo pharynx is one of three parts of the pharynx.  The pharynx is a Special Exposure Cohort (SEC) cancer as defined in § 7384l(17)(A) of the Act, and § 30.5(dd)(5)(iii)(E) of the implementing regulations.  42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(5)(iii)(E).  Therefore, I find that [Employee] has cancer of the pharynx, and is entitled to medical benefits for the treatment of pharynx cancer.  As the pyriform sinus (pharynx cancer) is an SEC cancer, there is no need for dose reconstruction by NIOSH.  The condition of skin cancer remains for dose reconstruction at NIOSH.

On June 16, 2003, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.  I have reviewed the record on this claim and the recommended decision issued by the district office on June 6, 2003.  I find that you are a member of the Special Exposure Cohort, as that term is defined in § 7384l(14)(A) of the Act; and that your colon cancer and pharynx (pyriform sinus) cancer are specified cancers under § 7384l(17)(A) of the Act and §§ 30.5(dd)(5)(iii)(M) and (E) of the implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A), 20 C.F.R. §§ 30.5(dd)(5)(iii)(M), 30.5(dd)(5)(iii)(E).

A claimant is entitled to compensation one time in the amount of $150,000 for a disability from a covered occupational illness.  Since you were previously awarded $150,000 for lung cancer, this decision is for medical benefits only.  I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to medical benefits effective April 28, 2003 for colon cancer, and effective August 9, 2001 for pharynx cancer (pyriform sinus), pursuant to § 7384t of the Act.  42 U.S.C. § 7384t.

Jacksonville, FL

July 8, 2003

Jeana F. LaRock

District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 3201-2004 (Dep’t of Labor, September 24, 2004)

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 stated below, three claims for survivor benefits are accepted.

STATEMENT OF THE CASE

Three claims were filed by the surviving children of [Employee] (the employee) under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  [Claimant 1] filed on August 16, 2001.  [Claimant 2] filed on November 1, 2002.  [Claimant 3] filed on November 15, 2002.  On Form EE-3 (Employment History for Claim under EEOICPA) it was stated that the employee had worked as a machinist for Union Carbide & Carbon Corporation at the Y-12 Plant located in Oak Ridge, Tennessee during the 1970’s. The Department of Energy (DOE) has identified the Y-12 Plant as a DOE facility from 1942 through the present time.  On December 5, 2001, the DOE verified the following employment dates for the employee at the Y-12 Plant from August 24, 1953 until January 13, 1961, May 29, 1961 until January 28, 1965 and March 1, 1971 until January 28, 1972. You each stated that as a result of his employment exposure to radiation at the Y-12 Plant, the employee developed lung cancer on February 17, 2000.  You submitted a death certificate for the employee that indicated he was divorced at the time of his death.  You also provided birth records, and where appropriate, marriage records for the children of the employee. 

You submitted medical evidence in support of the claims.  This evidence included the employee’s death certificate that indicated the immediate cause of death on April 23, 2000 was non-small cell carcinoma of the lung (lung cancer).  The evidence also included a pathology report describing a biopsy specimen of a right lung mass that was obtained on April, 10, 2000 and provided a diagnoses for the employee of well-differentiated adenocarcinoma (lung cancer). 

The district office evaluated the medical evidence and determined that the claim required referral to the National Institute for Occupational Safety and Health (NIOSH) to perform a dose reconstruction for the primary cancer.  A copy of the case file and the NIOSH Referral Summary Document were forwarded to NIOSH for dose reconstruction on March 16, 2002.  An amended referral to include a smoking history questionnaire, indicating that at the time of diagnosis the employee was a current smoker consuming 10-19 cigarettes per day, was sent to NIOSH on July 11, 2003. 

To expedite this claim, NIOSH used only the internal radiation dose to the lungs.  The cumulative dose to the lungs, including the external dose, was not evaluated for the lung cancer.  Per the provisions in 42 C.F.R. § 82.10(k)(1), it was determined that the reconstructed internal dose was of sufficient magnitude to consider the dose reconstruction complete.  Therefore, NIOSH reported that the dose information is a reasonable underestimate of the total occupational radiation exposure to the employee while he was employed at the Y-12 Plant.   On June 1, 2004, each of the claimants signed Form OCAS-1, indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they provided to NIOSH and that NIOSH should forward the final dose reconstruction report to the Department of Labor (DOL) to complete adjudication of their claims. 

The completed NIOSH Report of Dose Reconstruction under EEOICPA was forwarded to the district office on June 18, 2004.  The report provided radiation dose estimates of 71.440 rem to the employee’s lung.  Based on the dose estimate, the probability of causation calculation was completed by the district office claims examiner using NIOSH-IREP, which is an interactive software program.  Pursuant to §§ 81.21 and 81.22 of the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 56.66% probability that the employee’s cancer was caused by radiation exposure related to his employment at the Y-12 Plant. 

On August 19, 2004, the Denver district office issued a recommended decision indicating the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) of EEOICPA and 42 C.F.R § 82.10.  The probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3) of EEOICPA and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. Part 81.  The recommended decision concluded that each claimant was entitled to compensation in the amount of $50,000 pursuant to 42 U.S.C. § 7384s(a). 

On August 30, 2004, the Final Adjudication Branch received written notification from each of the three claimants stating that they waived any and all objections to the recommended decision.

After reviewing the evidence in the claims, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

1.      The following individuals filed claims for compensation as the surviving children of the employee on the dates indicated.  [Claimant 1] filed on August 16, 2001.  [Claimant 2] filed on November 1, 2002.  [Claimant 3] filed on November 15, 2002.

2.      The Department of Energy (DOE) verified the employment dates of the employee at the Y-12 Plant from August 24, 1953 until

January 13, 1961, May 29, 1961 until January 28, 1965 and March 1, 1971 until January 28, 1972.

3.      The employee was diagnosed with lung cancer on April 10, 2000, after he began employment at the Y-12 Plant.

4.      NIOSH reported only a partial dose reconstruction to the lung, since it was shown that the employee’s lung cancer met the “at least as likely as not” (a 50% or greater probability) threshold required under the EEOICPA that his cancer was caused by radiation doses incurred while employed at the Y-12 Plant.  A summary and explanation of information and methods applied to produce this dose estimate, including the claimants’ involvement through interviews and reviews of the dose report, are documented in the NIOSH Report of Dose Reconstruction dated as approved on May 24, 2004.           

5.      Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at the Y-12 Plant) was calculated for the employee’s primary cancer.  The calculation was completed by a district office claims examiner and was independently verified by a Final Adjudication Branch claims examiner.  The probability of causation values were determined using the upper 99% credibility limit, which helps minimize the possibility of denying claims to employees with cancers likely to have been caused by occupational radiation exposures.  It was shown that the employee’s lung cancer was 56.66% and met the “at least as likely as not” (a 50% or greater probability) threshold required under the EEOICPA that his cancer was caused by radiation doses incurred while employed at the Y-12 Plant. 

Based on the above noted findings of fact in the claims, the Final Adjudication Branch also makes the following:

CONCLUSIONS OF LAW

1.      The dose reconstruction estimate was performed in accordance with 42 U.S.C. § 7384n(d) of EEOICPA and 42 C.F.R. § 82.10.

2.      The probability of causation calculation was completed in accordance with 42 U.S.C. § 7384n(c)(3) of EEOICPA and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. Part 81.

3.      Based on the 56.66% probability of causation it is “at least as likely as not” that the employee’s lung cancer was caused by his employment at a covered facility, the Y-12 Plant, within the meaning of 42 U.S.C. § 7384n(b) of the Act.

4.      The evidence establishes that the employee was a covered employee pursuant to 42 U.S.C. § 7384l(1).

5.      The employee meets the criteria of a covered employee with cancer, specifically, that his cancer was at least as likely as not related to the employment.  42 U.S.C. §§ 7384l(1)(B) and 7384l(9)(B)(ii)(II).

6.      You each have established that you are current eligible survivors of the employee pursuant to 42 U.S.C. § 7384s(e).

7.   You are each entitled to compensation in the amount of $50,000.

The undersigned has thoroughly reviewed the case record and finds that three claims are accepted.

Denver, Colorado

September 24, 2004

Janet R. Kapsin

Hearing Representative

EEOICPA Fin. Dec. No. 5537-2004 (Dep’t of Labor, September 13, 2004)

REVIEW OF THE WRITTEN RECORD AND NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On August 16, 2001, you filed a Form EE-1 (Claim for Benefits under the EEOICPA).  You identified the diagnosed condition being claimed as prostate cancer. 

The medical documentation of record shows that you were diagnosed with adenocarcinoma of the prostate on April 30, 1998.  A pathology report dated May 2, 1998, signed by Edward C. Poole, M.D., was submitted showing adenocarcinoma, moderately differentiated based on prostate needle core biopsy performed on April 30, 1998.  A narrative medical report from Philip Lepanto M.D., dated June 24, 1998, also gives a diagnosis of carcinoma of the prostate. 

You also filed a Form EE-3 (Employment History) indicating that you worked at the International Nickel Plant (Huntington Pilot Plant) in Huntington, West Virginia.  You provided no dates of employment.  On September 24, 2001, the Department of Energy verified that you were employed at the Huntington facility from February 21, 1950 to May 1, 1996.  On December 15, 2003, the corporate verifier verified that you were employed in the Reduction Pilot Plant, from September 22, 1958 to March 23, 1959.  The Huntington Pilot Plant in Huntington,West Virginia is recognized as a Department of Energy facility from 1951 to 1963 and from 1978 to 1979.  See DOE Worker Advocacy Facility List. 

To determine the probability of whether you sustained cancer in the performance of duty, the Cleveland district office referred the claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  On February 23 , 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction dated March 22, 2004.  Using the information provided in the Report of Dose Reconstruction, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation (PoC) of your cancer and reported in its recommended decision that there was a 1.14% probability that your prostate cancer was caused by radiation exposure at the Huntington Pilot Plant. 

On March 25, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Huntington Pilot Plant.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the PoC was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

The Final Adjudication Branch received your letter on May 6, 2004, in which you object to the recommended decision.   You state that you directly handled radioactive materials but were never tested.  You also question the quality of the dose reconstruction estimates.  

FINDINGS OF FACT

1.  You filed a claim for benefits on August 16, 2001. 

2.  You worked at the Huntington Pilot Plant in Huntington, West Virginia, a covered DOE facility, from February 21, 1950 to May 1, 1996.  You worked in the Reduction Pilot Plant, the covered nuclear portion of the Huntington facility from September 22, 1958 to March 23, 1959. 

3.  You were diagnosed with prostate cancer on April 30, 1998. 

4.  The NIOSH Interactive RadioEpidemiological Program indicated a 1.14% probability that your prostate cancer was caused by radiation exposure at the Huntington Pilot Plant. 

5.  Your cancer was not “at least as likely as not” related to your employment at a DOE facility. 

CONCLUSIONS OF LAW

The regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law in the recommended decision.  See 20 C.F.R. § 30.310.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record, in the absence of a request for a hearing.  See 20 C.F.R. § 30.312.

The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  See 20 C.F.R. § 30.313.  Consequently, the Final Adjudication Branch will consider all of the evidence of record in reviewing the claim, including evidence and argument included with the objection(s).

You filed a claim based on prostate cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that you were a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9).  The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility.  See 42 U.S.C. § 7384n(b).

The Department of Energy verified that you worked at the Huntington facility from February 21, 1950 to May 1, 1996 and the corporate verifier for the Huntington facility verified that you worked in the Reduction Pilot Plant, from September 22, 1958 to March 23, 1959.  In addition, the medical documentation shows that you were diagnosed as having prostate cancer on April 30, 1998. 

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction under the EEOICPA, dated March 22, 2004.  NIOSH assigned the highest reasonably possible radiation dose using worst-case

assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data, as well as information recorded during the computer-assisted telephone interview. 

Using the information provided in the Report of Dose Reconstruction for prostate cancer, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine a 1.14% probability that your cancer was caused by radiation exposure while employed at the Huntington Pilot Plant.  See 42 C.F.R. §§ 81.20, 81.21, and 81.22.  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 1.14% probability. 

The Final Adjudication Branch notes that your main technical objection is that you directly handled radioactive materials, but were never tested and that you also question the quality of the dose reconstruction estimates. 

No dosimetry or bioassay records were found for you.  For the purposes of this dose reconstruction, NIOSH assigned you the highest reasonably possible radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data. 

Doses were calculated to the prostate, using the testes as the surrogate organ, for external exposure from storage containers of process residues, contaminated surfaces, and semi-annual medical X-rays.  Internal doses were calculated to the prostate, using the testes as the surrogate organ, for exposure to enriched uranium.  These assumptions are expected to encompass periodic direct contact with radioactive material.  This approach of using maximizing assumptions is a NIOSH methodology per the provisions of 42 C.F.R. § 82.10 (k)(2).  This is a challenge of the dose reconstruction methodology and cannot be addressed by the FAB per 20 C.F.R. § 30.318(b).

The Final Adjudication Branch also notes that the term “covered employee with cancer” is defined by 42 U.S.C. § 7384l(9)(B) as a Department of Energy employee who contracted cancer after beginning employment at a Department of Energy facility if, and only if, that individual is determined to have sustained that cancer in the performance of duty in accordance with 42 U.S.C. § 7384n(b).  That section of the Act provides that such cancer shall be determined to have been sustained in the performance of duty if, and only if, the cancer was at least as likely as not related to employment covered under the EEOICPA, as determined by the guidelines established in 42 U.S.C. § 7384n(c).  The statutory requirements for those guidelines specify that they shall:

(A)  be based on the radiation dose received by the employee (or a group of employees performing similar work) at such facility and the upper 99 percent confidence interval of the probability of causation in the radioepidemiological tables published under section 7(b) of the Orphan Drug Act  (42 U.S.C. 241 note), as such tables may be updated under section 7(b)(3) of such Act from time to time;

(B)  incorporate the methods established under subsection (d); and

(C)  take into consideration the type of cancer, past health-related activities (such as smoking), information on the risk of developing a radiation-related cancer from workplace exposure, and other relevant factors.

The Act requires that methods for arriving at reasonable estimates of the radiation dose received by an individual at a covered facility be established by regulation to include each of the following employees:

(A)  An employee who was not monitored for exposure to radiation at such facility.

(B)  An employee who was monitored inadequately for exposure to radiation at such facility.

(C)  An employee whose records of exposure to radiation at such facility are missing or incomplete.

The regulations required to establish the guidelines and dose reconstruction methods are published in 42 C.F.R. Parts 81 and 82, by the Department of Health and Human Services.

Objections challenging the dose reconstruction methodology cannot be addressed by the Final Adjudication Branch pursuant to 20 C.F.R. § 30.318(b).  Pursuant to that section, the methodology used by the Department of Health and Human Services (HHS) in arriving at reasonable estimates of the radiation doses received by an employee, as established by regulations issued by HHS at 42 C.F.R. Part 82, is binding on the Final Adjudication Branch.  The Final Adjudication Branch has no authority to depart from the guidelines.

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer,” because your prostate cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Huntington Pilot Plant.  See 42 U.S.C. §§ 7384l(1)(B) and 7384l (9)(B).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  A claimant who receives a recommended denial from the district office is entitled to file objections to the decision.  20 C.F.R. § 30.310.  Since you submitted a written objection to recommended decision but did not specifically request a hearing, a review of the written record was performed.  20 C.F.R. § 30.312.

In reviewing any objections submitted, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  20 C.F.R. § 30.313. 

For the reasons set forth below, your claim for benefits is denied. 

STATEMENT OF THE CASE

On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for lung cancer.  You submitted medical evidence establishing that you were diagnosed with lung cancer on December 7, 2000.[1] 

On the Form EE-3, Employment History, you stated you were employed at the Savannah River Site in Aiken, South Carolina from August 1988 through April 1993.  The DOE verified your employment at the Savannah River Site as August 23, 1988 through April 29, 1993.  In order to be eligible for benefits, the evidence must establish that your cancer was at least as likely as not related to your employment at a Department of Energy (DOE) facility.

To determine the probability of whether you sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  20 C.F.R. § 30.115.  The NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On June 21, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to the NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on June 28, 2004.

The district office used the information provided in this report to determine that there was a 27.04% probability that your cancer was caused by radiation exposure at the Savannah River Site.  42 C.F.R. § 81.20.  The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision.  This 60-day period expired on August 31, 2004.  

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including the NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.  20 C.F.R. § 30.310(a).  The regulations further provide that if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the 60 days, or if the claimant waives any objections to all or part of the recommended decision, the 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). 

If the claimant objects to the NIOSH dose reconstruction, the FAB will evaluate the factual findings upon which NIOSH based the dose reconstruction.  However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB. 

On July 15, 2004, the Final Adjudication Branch received your letter of objection.  In your letter, you stated that you believed too many people had worked on your dose reconstruction, and that you did not believe that computers could be used to reconstruct someone’s illness.  Your objections have been reviewed.

Congress directed NIOSH to create a method of calculating the probability that a compensable cancer occurred “in the performance of duty.”  The risk models used by NIOSH take into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from the various types of radiation during each year, along with epidemiological studies of cancer rates.  Some of the data that may be included in the dose reconstruction include, but are not limited to: internal dosimetry (such as results from urinalysis); external dosimetry data (such as film badge readings); workplace monitoring data (such as air sample results); workplace characterization data (such as type and amount of radioactive material processed); and descriptions of the type of work performed at the work location.  When dose information is not available, is very limited, or the dose of record is low, NIOSH may use the highest reasonably possible radiation dose, based on reliable science, documented experience, and relevant data, to complete a claimant’s dose reconstruction.  The guiding principle in conducting these dose reconstructions is to ensure that the assumptions are fair, consistent, and well-grounded in the best available science, while ensuring uncertainties in the science and data are handled to the advantage, rather than to the detriment, of the claim when feasible.  The use of a computer to calculate the probability of causation is required, due to the vast amounts of data involved.  Furthermore, the reconstruction is of the probable radiation dose received during employment, and not the diagnosed illness.  The issues that you raised concern methodology, and are binding on the FAB. 

FINDINGSOF FACT

1)  On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on your lung cancer.

2)  You were employed at the Savannah River Site from August 23, 1988 through April 29, 1993.

3)  You were diagnosed with lung cancer on December 7, 2000.

4)  Based on the dose reconstruction performed by the NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer.  The district office calculated a probability of causation of 27.04% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility.  The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

5)  On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

6)  You submitted a written objection to the recommended decision, and a review of the written record was conducted.

CONCLUSIONSOF LAW

Based on my review of the evidence of record and the recommended decision, I find that the evidence does not establish that your lung cancer was at least as likely as not related to your employment at a covered facility.  42 U.S.C. § 7384n.  I also find that the decision of the district office cannot be changed based on the objections submitted.  As provided in the implementing regulations, any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.  20 C.F.R. § 30.110(b). 

Under the Act, you are not entitled to benefits and your claim for compensation is denied.  42 U.S.C. § 7384s.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

[1]The district office reported a diagnosis date of December 8, 2000 to NIOSH.  Despite this discrepancy, the percentage of probability of causation would not be materially affected as both dates are within the same year.

EEOICPA Fin. Dec. No. 10522-2004 (Dep’t of Labor, November 14, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for compensation under the Act.

STATEMENT OF THE CASE

On September 24, 2001, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on skin cancer.  A representative of the Department of Energy (DOE) verified that you engaged in covered employment at the Hanford site for General Electric from December 5, 1955 to November 8, 1957 and for J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.  The Hanford site is recognized as a covered DOE facility from 1942 to the present.  See Department of Energy Worker Advocacy Facility List.

You provided a medical record summary from David L. Adams, M.D., of Tri-City Derm Management, Inc., that indicates you had surgical excisions diagnosed as basal cell carcinoma on the following twelve dates: December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face). 

You submitted four operative reports related to your cancers as follows: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4th layer shows cancer still present.”).  Also, you submitted five pathology reports related to your cancer as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin).  Further, you submitted a pathology report dated January 5, 1996 that diagnosed seborrheic keratosis, a non-covered condition.  You also submitted chart notes dated February 28, 1996 that indicate “a large recurrent basal cell carcinoma on the right preauricular lateral cheek area,” and “Right lateral cheek, preauricular skin.”  Consequently, the medical evidence includes a medical record summary, operative reports and pathology reports showing your diagnoses of skin cancer.

To determine the probability of whether you sustained these cancers in the performance of duty, the Seattle district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction on October 22, 2003.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82, § 82.26 (NIOSH report of dose reconstruction results).  In its report, NIOSH indicated, in its “Dose Reconstruction Overview,” that it performed radiation dose reconstructions on only four of your basal cell carcinomas that were diagnosed as follows: February 28, 1996 (left cheek); March 9, 1995 (auricular skin); March 9, 1995 (right side of the face); and March 17, 1982 (right sideburn area of the face). 

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your cancer and reported in its Recommended Decision that there was a 52.35% probability that your basal cell carcinoma of the skin was caused by radiation exposure at the INEEL site.  The district office continued, in its recommended decision, that “Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at a DOE covered facility) was calculated for the four primary cancers.”

On November 3, 2003, the Seattle district office recommended acceptance of your claim for compensation, and on November 7, 2003, the Seattle Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision. 

FINDINGS OF FACT

1.      You filed a claim for employee benefits on September 24, 2001.

2.      You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

3.      You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B).

4.      You were diagnosed with multiple skin cancers.

5.      Your cancer diagnoses were made after you began employment with the Department of Energy.

6.      The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.

7.      The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.

8.      The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81.  The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81.  See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E. 

9.      After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation.  Additional calculations of probability of causation were not required to be determined.  See 42 C.F.R. § 82.10(k). 

CONCLUSIONS OF LAW

The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. 

The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face).  Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4th layer shows cancer still present.”).  You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin). 

Based on your covered employment at the Hanford site and the medical documentation showing diagnoses of multiple skin cancers, you are a “covered employee with cancer” under the EEOICPA.  See 42 U.S.C. § 7384l(9)(B)(i). 

The undersigned notes that there is no indication in the case file of diagnosis of an auricular skin cancer, on March 9, 1995, as indicated in the NIOSH Report of Dose Reconstruction.  But, there is a diagnosis of a right pre-auricular basal cell carcinoma on December 21, 1995 as well as a reference to a basal cell carcinoma on the “right preauricular lateral cheek area” in the chart notes dated February 28, 1996.  It is also noted that the IREP probability of causation results show that the auricular primary cancer was diagnosed in 1995, and that no month or day was used in the computer calculation of the results.  Consequently, any discrepancy in the date of diagnosis of pre-auricular basal cell carcinoma in 1995 would not affect the outcome of this case.

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. 

Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site.  See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims involving two or more primary cancers).  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability.  Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

You are a “covered employee with cancer,” which is defined in § 7384l(9)(B)(i) and (ii) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B)(i) and (ii).  Pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the NIOSH implementing regulations, your cancer was at least as likely as not related to your employment at the Hanford site.  See 42 C.F.R. §§ 81.20, 81.21, 81.22, and 81.25. 

The record indicates that you filed Form EE-1, Claim for Employee Benefits under the EEOICPA, on September 24, 2001.  The date you filed your claim is the date you became eligible for medical benefits for cancer.  See 42 U.S.C. § 7384t(d). 

Pursuant to Bulletin 03-24, if all primary cancers claimed have not gone through dose reconstruction when the 50% threshold has been reached, NIOSH will not complete dose reconstruction for the rest of the cancers.  The calculation of additional POCs for the remaining primary cancers, which were not calculated, would only make the final numerical value of the POC larger, and all of the cancers, including those for which NIOSH did not perform a dose calculation, are covered for medical benefits.  Consequently, you are entitled to compensation and medical benefits for skin cancer retroactive to September 24, 2001.  See EEOICPA Bulletin No. 03-24 (issued May 2, 2003).

For the foregoing reasons, the undersigned hereby accepts your claim for skin cancer.  You are entitled to compensation in the amount of $150,000 pursuant to § 7384s(a) of the Act.  You are also entitled to medical benefits related to skin cancer, since September 24, 2001.   See 42 U.S.C. § § 7384s, 7384t.

Seattle, WA

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle

EEOICPA Fin. Dec. No. 12659-2004 (Dep’t of Labor, November 6, 2003)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning the claim of [Claimant] 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 discussed below, compensation based on lung cancer is granted.

STATEMENT OF THE CASE

On October 2, 2003, the Cleveland district office issued a recommended decision finding that [Employee]‘s lung cancer was at least as likely as not related to his employment at a Department of Energy (DOE) facility, within the meaning of 42 U.S.C. § 7384n; that the employee is a “covered employee with cancer”, as that term is defined in 42 U.S.C. § 7384l(9)(B); and concluding that the claimant, as the survivor of the employee, is entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s.

The evidence shows that the employee worked in decontamination/housekeeping maintenance at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978.  Additional evidence shows that he was on active military service from September 4, 1952, to August 20, 1954.  In order to be eligible for benefits based on the employee’s cancer, the evidence must establish that the cancer was at least as likely as not related to his employment at a DOE facility.

To determine the probability of whether the employee sustained lung cancer in the performance of duty, the district office referred the claimant’s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115 of the Department of Labor’s implementing regulations.  NIOSH performed the dose reconstruction by calculating the annual radiation dosage during recorded radiation intake periods.  Because the potential intake on December 27, 1960, occurred near the end of that year, all dose for that intake was assigned to 1961.  On August 18, 2003, the claimant signed Form OCAS-1, indicating that she had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information she had provided to NIOSH.

Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was an 83.73% probability that the employee’s lung cancer was caused by radiation exposure at Monsanto Chemical Company (Mound Plant).

In making this determination, the district office used the parameter for smoking history of “10-19 cigarettes per day”.  This parameter was used because the smoking history questionnaire that the claimant submitted was marked in the blocks corresponding to “Current Cigarette Smoker” and “10-19 cigarettes per day.”  A consultation report from Miami Valley Hospital, dated June 24, 1978, notes that the employee provided a history that he is a “heavy smoker – 2 ppd x 30 years.”

Based on that report, the Final Adjudication Branch independently analyzed the information in the NIOSH report, and re-determined the probability of causation using a smoking history parameter of “>40 cig/day (currently)”.  That history was considered to be the most reliable estimate of the employee’s smoking history.  The re-analysis resulted in an 82.44% probability that the employee’s lung cancer was sustained in the performance of duty.

On October 8, 2003, the Final Adjudication Branch received written notification that the claimant waives any and all objections to the recommended decision.

FINDINGS OF FACT

  1. The claimant filed an application for benefits on October 15, 2001, under the EEOICPA based on the employee’s lung cancer.
  1. The employee worked at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978.  Monsanto Chemical Company (Mound Plant) is identified as a DOE facility from 1947 to the present.
  1. The employee was diagnosed with lung cancer in June 1978.
  1. NIOSH reported annual dose estimates for lung cancer during recorded radiation intake periods.  A summary and explanation of information and methods applied to produce these dose estimates, including the claimant’s involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”
  1. Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer.  The district office determined that lung cancer was estimated to have a greater than 50% probability that it is related to employment at the covered facility.
  1. The claimant is the surviving spouse of the employee and was married to him for at least one year immediately before his death.

CONCLUSIONS OF LAW

I have reviewed the facts and the recommended decision issued by the district office, and find that the employee’s lung cancer was at least as likely as not sustained in the performance of duty at a DOE facility as specified by 42 U.S.C. § 7384n.  The employee is a “covered employee with cancer”, as that term is defined by 42 U.S.C. § 7384l(9)(B).  The claimant is the surviving spouse of the employee as defined by 42 U.S.C. § 7384s(e)(1).  I find that the recommended decision is in accordance with the facts and the law in this case, and that the claimant is entitled to $150,000 based on the employee’s lung cancer, as provided by 42 U.S.C. § 7384s.

Cleveland, OH

Daria Rusyn

Final Adjudication

Branch Manager

EEOICPA Fin. Dec. No. 12659-2004 (Dep’t of Labor, November 6, 2003)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning the claim of [Claimant] 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 discussed below, compensation based on lung cancer is granted.

STATEMENT OF THE CASE

On October 2, 2003, the Cleveland district office issued a recommended decision finding that [Employee]‘s lung cancer was at least as likely as not related to his employment at a Department of Energy (DOE) facility, within the meaning of 42 U.S.C. § 7384n; that the employee is a “covered employee with cancer”, as that term is defined in 42 U.S.C. § 7384l(9)(B); and concluding that the claimant, as the survivor of the employee, is entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s.

The evidence shows that the employee worked in decontamination/housekeeping maintenance at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978.  Additional evidence shows that he was on active military service from September 4, 1952, to August 20, 1954.  In order to be eligible for benefits based on the employee’s cancer, the evidence must establish that the cancer was at least as likely as not related to his employment at a DOE facility.

To determine the probability of whether the employee sustained lung cancer in the performance of duty, the district office referred the claimant’s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115 of the Department of Labor’s implementing regulations.  NIOSH performed the dose reconstruction by calculating the annual radiation dosage during recorded radiation intake periods.  Because the potential intake on December 27, 1960, occurred near the end of that year, all dose for that intake was assigned to 1961.  On August 18, 2003, the claimant signed Form OCAS-1, indicating that she had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information she had provided to NIOSH.

Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was an 83.73% probability that the employee’s lung cancer was caused by radiation exposure at Monsanto Chemical Company (Mound Plant).

In making this determination, the district office used the parameter for smoking history of “10-19 cigarettes per day”.  This parameter was used because the smoking history questionnaire that the claimant submitted was marked in the blocks corresponding to “Current Cigarette Smoker” and “10-19 cigarettes per day.”  A consultation report from Miami Valley Hospital, dated June 24, 1978, notes that the employee provided a history that he is a “heavy smoker – 2 ppd x 30 years.”

Based on that report, the Final Adjudication Branch independently analyzed the information in the NIOSH report, and re-determined the probability of causation using a smoking history parameter of “>40 cig/day (currently)”.  That history was considered to be the most reliable estimate of the employee’s smoking history.  The re-analysis resulted in an 82.44% probability that the employee’s lung cancer was sustained in the performance of duty.

On October 8, 2003, the Final Adjudication Branch received written notification that the claimant waives any and all objections to the recommended decision.

FINDINGS OF FACT

  1. The claimant filed an application for benefits on October 15, 2001, under the EEOICPA based on the employee’s lung cancer.
  1. The employee worked at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978.  Monsanto Chemical Company (Mound Plant) is identified as a DOE facility from 1947 to the present.
  1. The employee was diagnosed with lung cancer in June 1978.
  1. NIOSH reported annual dose estimates for lung cancer during recorded radiation intake periods.  A summary and explanation of information and methods applied to produce these dose estimates, including the claimant’s involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”
  1. Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer.  The district office determined that lung cancer was estimated to have a greater than 50% probability that it is related to employment at the covered facility.
  1. The claimant is the surviving spouse of the employee and was married to him for at least one year immediately before his death.

CONCLUSIONS OF LAW

I have reviewed the facts and the recommended decision issued by the district office, and find that the employee’s lung cancer was at least as likely as not sustained in the performance of duty at a DOE facility as specified by 42 U.S.C. § 7384n.  The employee is a “covered employee with cancer”, as that term is defined by 42 U.S.C. § 7384l(9)(B).  The claimant is the surviving spouse of the employee as defined by 42 U.S.C. § 7384s(e)(1).  I find that the recommended decision is in accordance with the facts and the law in this case, and that the claimant is entitled to $150,000 based on the employee’s lung cancer, as provided by 42 U.S.C. § 7384s.

Cleveland, OH

Daria Rusyn

Final Adjudication

Branch Manager

EEOICPA Fin. Dec. No. 16967-2004 (Dep’t of Labor, September 3, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On May 3, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on prostate cancer.  Medical documentation submitted in support of your claim shows that you were diagnosed as having prostate cancer on February 15, 1999.

You also provided a Form EE-3 (Employment History) in which you stated that you worked for the GAT, Martin Marrieta at the Portsmouth Plant, in Piketon, OH, from November 15, 1954, to June 15, 1992, and that you wore a dosimetry badge.  The Department of Energy (DOE) verified that you worked at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH, from November 15 , 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy, Facility List.

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA regulations.  The district office advised NIOSH that you had been employed at the Portsmouth GDP from November 15, 1954, to June 15, 1992.  NIOSH used that continuous period of employment in reconstructing your radiation dose. The district office received the final NIOSH Report of Dose Reconstruction which is dated May 17, 2004.  On May 24, 2004 you signed Form OCAS-1 indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  Using the information provided in this report, the Cleveland district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of your cancer and reported in its recommended decision that there was a 35.65% probability that your cancer was caused by radiation exposure at the Portsmouth GDP.

On June 22, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined in 42 U.S.C. § 7384s.

FINDINGS OF FACT

1.         You filed a claim for benefits on December 10, 2001.

2.         You were employed at the Portsmouth GDP, a covered DOE facility, from November 15 , 1954, to August 31, 1961, and from January 26, 1970, to June 14, 1992.

3.         You were diagnosed as having prostate cancer on February 15, 1999.

4.         The NIOSH Interactive RadioEpidemiological Program indicated a 35.65% probability that your cancer was caused by radiation exposure at the Portsmouth GDP.

5.         Your cancer was not “at least as likely as not” related to your employment at a DOE facility.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on June 22, 2004.  I find that you have not filed any objections to the recommended decision, and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

The Final Adjudication Branch analyzed the information in the NIOSH report, confirming the 35.65% probability that your cancer was related to your employment at the Portsmouth GDP.  That probability is based on your having continuously received radiation dose for the period November 15 , 1954 to June 14, 1992.  Because NIOSH assigned occupational radiation dose for the period September 1, 1961, to January 25, 1970, a period during which you did not work at the Portsmouth GDP, the total dose assigned is a significant overestimate of your actual occupational radiation dose at that facility.

The Final Adjudication Branch notes that regardless of whether the occupational radiation dose provided in the NIOSH Report of Dose Reconstruction is based on exposure for the period November 15, 1954 to June 15, 1992, or the correct dates of November 15, 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992, the resulting decision would be unchanged.  The probability that prostate cancer resulted from radiation received at the Portsmouth GDP, based on the period of November 15, 1954 to June 15, 1992, is 35.65%.  Because your occupational radiation dose from November 15, 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992, the correct (shorter) time period, would result in a decrease in the dose and, consequently, a decrease in the probability of causation, no rework of the dose reconstruction and probability of causation is warranted.  See EEOICPA Bulletin No. 04-01 (issued October 31, 2003).

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer” under the EEOICPA, because your cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP.  See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Cleveland, OH

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 16967-2004 (Dep’t of Labor, September 3, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On May 3, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on prostate cancer.  Medical documentation submitted in support of your claim shows that you were diagnosed as having prostate cancer on February 15, 1999.

You also provided a Form EE-3 (Employment History) in which you stated that you worked for the GAT, Martin Marrieta at the Portsmouth Plant, in Piketon, OH, from November 15, 1954, to June 15, 1992, and that you wore a dosimetry badge.  The Department of Energy (DOE) verified that you worked at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH, from November 15 , 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy, Facility List.

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA regulations.  The district office advised NIOSH that you had been employed at the Portsmouth GDP from November 15, 1954, to June 15, 1992.  NIOSH used that continuous period of employment in reconstructing your radiation dose. The district office received the final NIOSH Report of Dose Reconstruction which is dated May 17, 2004.  On May 24, 2004 you signed Form OCAS-1 indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  Using the information provided in this report, the Cleveland district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of your cancer and reported in its recommended decision that there was a 35.65% probability that your cancer was caused by radiation exposure at the Portsmouth GDP.

On June 22, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined in 42 U.S.C. § 7384s.

FINDINGS OF FACT

1.         You filed a claim for benefits on December 10, 2001.

2.         You were employed at the Portsmouth GDP, a covered DOE facility, from November 15 , 1954, to August 31, 1961, and from January 26, 1970, to June 14, 1992.

3.         You were diagnosed as having prostate cancer on February 15, 1999.

4.         The NIOSH Interactive RadioEpidemiological Program indicated a 35.65% probability that your cancer was caused by radiation exposure at the Portsmouth GDP.

5.         Your cancer was not “at least as likely as not” related to your employment at a DOE facility.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on June 22, 2004.  I find that you have not filed any objections to the recommended decision, and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

The Final Adjudication Branch analyzed the information in the NIOSH report, confirming the 35.65% probability that your cancer was related to your employment at the Portsmouth GDP.  That probability is based on your having continuously received radiation dose for the period November 15 , 1954 to June 14, 1992.  Because NIOSH assigned occupational radiation dose for the period September 1, 1961, to January 25, 1970, a period during which you did not work at the Portsmouth GDP, the total dose assigned is a significant overestimate of your actual occupational radiation dose at that facility.

The Final Adjudication Branch notes that regardless of whether the occupational radiation dose provided in the NIOSH Report of Dose Reconstruction is based on exposure for the period November 15, 1954 to June 15, 1992, or the correct dates of November 15, 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992, the resulting decision would be unchanged.  The probability that prostate cancer resulted from radiation received at the Portsmouth GDP, based on the period of November 15, 1954 to June 15, 1992, is 35.65%.  Because your occupational radiation dose from November 15, 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992, the correct (shorter) time period, would result in a decrease in the dose and, consequently, a decrease in the probability of causation, no rework of the dose reconstruction and probability of causation is warranted.  See EEOICPA Bulletin No. 04-01 (issued October 31, 2003).

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer” under the EEOICPA, because your cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP.  See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Cleveland, OH

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 23398-2004 (Dep’t of Labor, September 10, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On February 21, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on uterine carcinoma.  Medical documentation submitted in support of your claim shows that you were diagnosed as having endometrial adenocarcinoma on November 27, 2001.

You also provided a Form EE-3 (Employment History) in which you state that you worked for the Carbide and Carbon Chemical Corporation at the Oak Ridge Gaseous Diffusion Plant (GDP) from July 1948 to October 19, 1953, and for the Goodyear Atomic Corporation at the Portsmouth GDP from September 1, 1954 to August 1, 1955.  You also report that you did not wear a dosimetry badge at either facility.  A representative of the Department of Energy (DOE) verified that you worked at the Oak Ridge GDP from April 12, 1948, to October 19, 1953, and at the Portsmouth GDP from September 7, 1954, to September 15, 1955.  The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to the present and the Portsmouth GDP is recognized as a covered DOE facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy, Facility List.

Based on covered employment of more than 250 workdays at the Oak Ridge and Portsmouth GDPs, in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges, you meet the requirements for Special Exposure Cohort membership.  See 42 U.S.C. § 7384l(14).  However, because the cancer with which you had been diagnosed, endometrial carcinoma, is not a specified cancer under 42 U.S.C. § 7384l(17), your case was referred to NIOSH in order to further consider your entitlement to compensation under the Act.

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 20 C.F.R. § 30.115.  On June 16, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On June 23, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the Cleveland district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of your cancer and reported in its recommended decision that there was a 7.57% probability that your cancer was caused by radiation exposure at the Oak Ridge and Portsmouth GDPs.

On June 29, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Oak Ridge and Portsmouth GDPs.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

FINDINGS OF FACT

1.         You filed a claim for benefits on February 21, 2002.

2.         You were employed at the Oak Ridge GDP and at the Portsmouth GDP, covered DOE facilities, from April 12, 1948, to October 19, 1953, and September 7, 1954, to September 15, 1955, respectively.

3.         You were diagnosed as having endometrial adenocarcinoma on November 27, 2001.

4.         The NIOSH Interactive RadioEpidemiological Program indicated a 7.57% probability that your cancer was caused by radiation exposure at the Oak Ridge GDP and at the Portsmouth GDP.

5.         Your cancer was not “at least as likely as not” related to your employment at a DOE facility.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on June 29, 2004.  I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction dated June 8, 2004.  NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data, as well as information recorded during the computer-assisted telephone interview.  See 42 C.F.R. §§ 82.25 and 82.26.

Using the information provided in the Report of Dose Reconstruction for prostate cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 7.57% probability that your cancer was caused by radiation exposure while employed at the Oak Ridge and Portsmouth GDPs.  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 7.57% probability.

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer”, because your cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Oak Ridge and Portsmouth GDPs.  See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Cleveland, OH

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 28416-2004 (Dep’t of Labor, March 14, 2005)

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

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

STATEMENT OF THE CASE

On April 29, 2002, you filed a claim for benefits under Part B of the Act.  You listed bladder cancer as the medical condition on which your claim is based.  You provided medical evidence to support the claimed medical condition.  The first date of diagnosis of the cancer is November 19, 2001, as shown on the pathology report.

Your employment history Form, EE-3, states that you were employed at the Y-12 plant in Oak Ridge, TN, from July 1970 to March 2000.  The Department of Energy (DOE) confirmed your employment dates as July 13, 1970 to March 27, 2000. 

To determine the probability that you sustained cancer in the performance of duty, the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Y-12 plant.  On May 3, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information provided to NIOSH.

On May 10, 2004, NIOSH provided the district office with a copy of the dose reconstruction.  The report states that NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data.

Pursuant to Subpart E of the Department of Health and Human Services’ regulations, 42 C.F.R part 81, the district office used the information provided in this report to determine that there was a 22.18% probability that your bladder cancer was caused by radiation exposure at the Y-12 plant. 

On May 18, 2004, the Denver district office issued a recommended decision to deny your claim for compensation benefits.  Based on the evidence contained in the case record, the district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.26; the probability of causation calculation was completed in accordance with 42 U.S.C. § 7384n(c)(3) and 42 C.F.R. part 81; and you are not entitled to compensation as outlined under 42 U.S.C. § 7384n(b).

OBJECTIONS

On July 19, 2004, the Final Adjudication Branch received your letter of objection which was postmarked on July 17, 2004.  You objected to the recommended decision and requested an oral hearing to present your objections.  You stated your objection as:  “I worked over all of Y-12. Contact with different substances, materials, etc.  I ate my lunch, took breaks, smoked cigarettes in areas in the 1970 – 80s, which now you have to have training and pass a test, plus wear specific EGP to enter the areas.”  An oral hearing was held on October 13, 2004, in Oak Ridge, TN. 

At the hearing, you reiterated the original stated objection (See Hearing Transcript (HT) pages 13-15); you testified that you have had recurrences of the bladder cancer (See HT pages 9 and 10); you testified that there is no history in your family of cancer (See HT page 11.); you described areas in which you worked, specifically with the roof crews and in the biology department at the “mouse house.” (See HT pages 12 and 13).  The objections to be addressed are:   

  1. I worked over all of Y-12.  Contact with different substances, materials, etc.  I ate my lunch, took breaks, smoked cigarettes in areas in the 1970 – 80s, which now you have to have training and pass a test, plus wear specific EGP to enter the areas.”
  2. You have had recurrences of bladder cancer.
  3. There is no family history of bladder cancer.
  4. You discussed working on roof crews at Oak Ridge.  Also, mentioned working in the biology department at the “mouse house.” 

Additionally, you testified that you had been diagnosed with skin cancer in the past and you were attempting to obtain the documentation which reflects that you had skin cancer (See HT pages 10-11).  

Your first and fourth objections concern the accuracy of the dose reconstruction and its consideration of the workplace environment.  A review of the dose reconstruction report shows that DOE dosimetry records were used as a starting point in determining your external and internal doses.  In addition, the dosimetry records provide information relating to where the claimant worked.  These records provide an indication of your dose since the dosimeter and bioassay measurements detect radiation in the work environment, i.e., your dose is recorded regardless of where you worked at the Y-12 plant.  NIOSH assigned you maximized missed doses.  For dose reconstruction purposes, the term “missed dose” represents the dose that could have been received, but may not have been recorded due to the dosimeter detection limits or site reporting practices.  In addition, the dose received from diagnostic medical X-ray procedures that were required as a condition of employment was included in the overall estimate of the dose to the prostate and the colon.  Maximizing dose conversion factors were used to convert potential whole body exposure dose to dose to the bladder. (See dose reconstruction report (DR) pages 5 through 7.)

The dose reconstruction report shows that NIOSH reviewed internal dose monitoring records. NIOSH states that there were no bioassay results greater than the minimum detectable activity for the bioassay methods used were recorded in the DOE record. To ensure that your internal dose was overestimated, internal dose from an assumed hypothetical intake was assigned by NIOSH based on the Technical Information Bulletin: Maximum Internal Dose Estimates for Certain DOE Complex Claims.  The hypothetical intake is composed of 28 radionuclides and exceeds any possible actual intake, as the level of activity necessary to generate such an intake is likely to have been detectable by workplace indicators. Additionally, these nuclides would not all be found in a single location on site.  (See DR page 6)

A review of the dose reconstruction report shows that for the purposes of the dose reconstruction, NIOSH assigned you the highest reasonably possible radiation dose to the bladder related to radiation exposure and intake using available dosimetry data, when available, and maximizing assumptions in the absence of documented exposures.  As noted above, dosimeter and bioassay measurements detect his radiological exposure in the work environment, i.e., measurements are made and recorded regardless of where he worked at the Y-12 plant, and this addresses the issues in these two objections.  The NIOSH approach is based on current science, documented experience and relevant data.  Objections 1 and 3 relate to the methodology used by NIOSH to complete the dose reconstruction.

The second objection relates to three recurrences of the bladder cancer.  The file indicates that the district office initially reported to NIOSH that you had been diagnosed with two primary bladder cancers: one in November 2001 and the other in September 2002.  The pathology report dated September 18, 2002, states that you were diagnosed with “recurrent” bladder cancer.  At the hearing you provided a letter from Dr. Jeff E. Flickinger dated August 26, 2004 which states that you have been diagnosed with “superficial bladder cancer, originally in 2001.  The last recurrence he had was on May 2002.”  On November 17, 2004, the undersigned received the packet of medical reports you sent on November 12, 2004.  The packet includes the previously submitted and considered pathology reports dated November 19, 2001 and September 18, 2002.  You also provided copies of pathology reports which were not previously in the file, as follows:

Pathology report as a result of a colon screen dated December 6, 2002, provides a diagnosis of hyperplastic polyp.   

Pathology report dated May 7, 2003, shows a diagnosis of recurrent bladder tumor.

Pathology report resulting from a urine sample dated December 4, 2003, states that there were no malignant cells identified.

Your fourth objection concerns your statement that there is no family history of bladder cancer.  It is a scientific fact that ionizing radiation may cause some cancers, but no one can be certain in any specific case.  The software program, named the NIOSH-Interactive RadioEpidemiological Program (NIOSH-IREP), is based on NIOSH regulations found at 42 C.F.R. part 81 and uses the updated version of radioepidemiological tables developed by the National Institutes of Health as a basis for determining probability of causation for employees covered under EEOICPA.  NIOSH-IREP allows claims examiners to apply the National Cancer Institute risk models directly to data for an individual claimant. 

Scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.  If research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation. 

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty.  The PoC is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer to the general population 42 C.F.R. § 81.4(n).  The Department of Labor (DOL) uses NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his/her individual radiation dose.  The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.  None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens.   

NIOSH-IREP allows DOL to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the PoC.  Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual.  As required by the EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses.  This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.   

Factors which may or may not potentially predispose an employee to the carcinogenic effects of radiation to the affected site, such as family history of cancer, exposure to other toxic substances, or the effect that radiation dose to other organs/tissues may have on the dose directly to the primary cancer site, are not part of the NIOSH-IREP model.  Objection three relates to the probability of causation portion of the dose reconstruction methodology.

FINDINGS OF FACT

  1. You filed a claim for benefits under Part B of the EEOICPA on April 29, 2002.
  1. You were employed at the Y-12 plant from July 13, 1970 to March 27, 2000. 
  1. The first diagnosis of bladder cancer was made on November 19, 2001, after you began employment at a covered facility.
  1. The medical evidence in the file establishes that you have been diagnosed with one primary cancer, bladder cancer.
  1. NIOSH reported annual dose estimates for your bladder cancer from the date of initial radiation exposure during covered employment, to the date of the cancer’s first diagnosis.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated January 30, 2004.
  1. The undersigned has verified that there is a 22.18% probability that the bladder cancer was caused by your occupational radiation exposure during your covered employment at the Y-12 plant.
  1. The probability of causation value is less than 50%, and shows that your cancer is not “at least as likely as not” related to employment at the covered facility.
  1. You submitted additional evidence after the hearing.
  1. You have not submitted any comments to the hearing transcript, a copy of which was sent to you on November 1, 2004.
  1. You have not submitted any evidence relating to skin cancer.

CONCLUSIONS OF LAW

The record contains sufficient evidence to support that you have been diagnosed with bladder cancer.  Therefore, to determine the probability of whether you sustained cancer in the performance of duty, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Y-12 plant, in Oak Ridge, TN.  The dose reconstruction is used by the Department of Labor to determine the probability that the claimed cancer is related to employment at a covered facility.  

The National Institute for Occupational Safety and Health (NIOSH) has full authority under the regulations to complete the dose reconstruction as prescribed in its rules.  If a claimant objects to the dose reconstruction, the Final Adjudication Branch will evaluate the factual findings upon which NIOSH based the dose reconstruction.  See 20 C.F.R. § 30.318(a). 

Objection two relates to district office’s use of the first date of the diagnosis of bladder cancer to calculate the probability that your bladder cancer was caused by radiation exposure during your employment at the Y-12 plant.  I find that the district office’s calculation of the probability of causation for the primary bladder cancer diagnosed on November 19, 2001 is in accordance with current policy and procedures. 

Objections one, three and four relate to the choice by NIOSH of the dose reconstruction methodology.  The regulations promulgated by the Department of Health and Human Services (DHHS) leave the determination of methodology to NIOSH.  In accordance with 20 C.F.R. § 30.318(b), these objections can not be addressed by the Final Adjudication Branch.  

I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on your objections.  As explained in § 30.110(b) of the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). 

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Washington, DC

Linda M. Parker

Hearing Representative

EEOICPA Fin. Dec. No. 36328-2004 (Dep’t of Labor, September 27, 2004)

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On September 16, 2002, you filed a claim (Form EE-2) for benefits as the surviving spouse of [Employee].  You identified breast cancer and liver cancer as the diagnosed conditions on which your claim was based.  You submitted an employment history form (EE-3) on which you stated that [Employee] was employed at the INEEL site (Idaho National Engineering and Environmental Laboratory) from January 15, 1977 to March 6, 2001 and that she wore a dosimetry badge while employed.  As medical evidence, you submitted the following:

1.      A copy of a November 7, 2001 hospital summary report which includes the results of the June 12 1998 pathology report in which [Employee] was diagnosed with right breast cancer.

2.      A copy of Dr. John H. Ward’s October 28, 1999 medical report in which he stated [Employee] was diagnosed with metastatic breast cancer to the liver. 

3.      A copy of Dr. William Brant’s February 17, 2000 ultrasound report in which he states [Employee] had multiple masses of metastatic breast carcinoma within the liver.

You submitted a copy of [Employee’s] death certificate that shows she died on March 6, 2001 due to metastatic breast cancer and that you were her spouse at the time of death.  You did not submit a copy of your marriage certificate to establish you were married to [Employee] as requested by the district office on September 25, 2002.  On October 9, 2002, INEEL representatives Katherine A. Vivian and Lynn E. Rockhold advised the district office by letter that [Employee] was employed at INEEL from March 27, 1978 to February 28, 2001.

To determine the probability of whether [Employee] sustained cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction on November 4, 2002, in accordance with § 30.115 of the implementing regulations.  20 C.F.R. § 30.115.  On June 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  On July 7, 2004, NIOSH submitted the Final Report of Dose Reconstruction to the district office.  Pursuant to § 81.20 of the implementing NIOSH regulations, the district office used the information provided in that report to determine that there was a 30.89% probability that [Employee’s] breast cancer was caused by radiation exposure at the INEEL site.  42 C.F.R. § 81.20. 

On July 14, 2004, the district office issued a recommended decision in which it concluded that [Employee] does not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) as she does not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) of the EEOICPA and 42 C.F.R. § 82.10; and that the Department of Labor completed the Probability of Causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. § 81.  The district office recommended denial of your claim based on its conclusions.

Section 30.310(a) of the EEOICPA implementing regulations provides that, “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the 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).

After considering the written record of the claim forwarded by the district office, and after conducting the further development of the claim as was deemed necessary, the FAB hereby makes the following:

FINDINGS OF FACT

  1. You filed a claim for survivor benefits on September 16, 2002.
  1. [Employee] was employed at the Idaho National Engineering and Environmental Laboratory, a Department of Energy facility,[1] from August 2, 1976 to December 1, 1981. 
  1. [Employee] was diagnosed with breast cancer on June 12, 1998. 
  1. [Employee] died on March 6, 2001 due to metastatic breast cancer. 
  1. On July 7, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record.  On September 14, 2004, the Final Adjudication Branch independently analyzed the information in that report and confirmed the 30.89% probability determined by the district office. 
  1. You did not submit evidence that establishes you are the surviving spouse of [Employee].
  1. You have not filed any objections to the recommended decision within the 60 days allowed by § 30.310(b) of the EEOICPA regulations.

Based on the above-noted findings of fact in this claim and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

To establish eligibility for compensation as a result of cancer, it must first be established that [Employee] was a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment.  42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210.  The evidence of record establishes that [Employee] was a DOE employee who contracted breast cancer after beginning her employment at the INEEL.  On September 14, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for [Employee’s] breast cancer with the software program known as NIOSH-IREP.  These calculations show that there was a 30.89% probability that [Employee’s] breast cancer was caused by her exposure to radiation during the period of her covered employment at the INEEL site.  Pursuant to 42 C.F.R. § 82.26, NIOSH will only complete dose estimates for the organ or tissue relevant to the primary cancer site(s).  It has been established by the medical evidence of record that [Employee] was diagnosed with multiple masses of metastatic breast carcinoma within the liver.  Evidence was not submitted that establishes she was diagnosed with liver cancer; therefore dose estimates were not completed for that organ.

Because the evidence of record does not establish that [Employee’s] cancer was “at least as likely as not” (a 50% or greater probability) caused by her employment at the INEEL site within the meaning of § 7384n of the Act, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Additionally, you did not submit evidence that establishes you are an eligible survivor as defined under the EEOICPA.  Pursuant to § 7384s(e)(2) of the EEOICPA, if a covered employee eligible for payment dies before filing a claim under this title, a survivor of that employee may file a claim for such payment.  42 U.S.C. § 7384s(e)(2).  Payment may be made to a surviving spouse if it is established that the spouse was married to the employee for at least one year immediately prior to the employee’s death.  See 42 U.S.C. § 7384s(e)(3)(A). 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] U.S. Department of Energy.  Idaho National Engineering and Environmental Laboratory.  Time Period:  1949 to Present.  Worker Advocacy Facility List.  Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved September 14, 2004].

EEOICPA Fin. Dec. No. 37539-2005 (Dep’t of Labor, November 2, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning 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).  For the reasons set forth below, your claim for benefits under § 7384 of the Act is denied.

STATEMENT OF THE CASE

On October 23, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for esophageal cancer. You submitted medical evidence establishing that you were diagnosed with esophageal cancer on April 12, 2002. 

On the Form EE-3, Employment History, you stated you were employed as a sheet metal worker at the Y-12 plant in Oak Ridge, Tennessee, for the period of April 1, 1974 to February 12, 2002.  You stated that during this employment, you visited the Oak Ridge, Portsmouth, and Paducah gaseous diffusion plants several times a year, as well as X-10 (the Oak Ridge National Laboratory, or ORNL).  In addition you visited the Idaho National Engineering and Environmental Laboratory (INEEL) in Scoville, Idaho.  The district office verified this employment as April 1, 1974 to February 11, 2002, including a period of temporary duty at INEEL from April 10, 1992 to May 18, 1992.

To determine the probability of whether you sustained cancer in the performance of duty, as required to determine eligibility for benefits under § 7384 of the Act, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  20 C.F.R. § 30.115.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On March 27, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on June 1, 2004.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 28.1% probability that your cancer was caused by radiation exposure at the DOE facilities in which you worked.  42 C.F.R. § 81.20.  The Final Adjudication Branch independently confirmed the 28.1% probability.

On March 4, 2005, the Denver district office issued a recommended decision concluding that you are not entitled to compensation since your cancer is not covered under § 7384 of the Act.

The recommended decision informed you that you had sixty days to file any objections, and that period ended on May 3, 2005.  On May 6, 2005, the Final Adjudication Branch received your letter of objection and request for a hearing dated May 6, 2005.  The hearing was held on July 20, 2005, in Oak Ridge, Tennessee. 

In accordance with the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e), 30.314(f).  By letter dated August 8, 2005, the transcript was forwarded to you.  No response was received.

OBJECTIONS

Pursuant to the implementing regulations, if the claimant objects to NIOSH’s dose reconstruction the Final Adjudication Branch (FAB) will evaluate the factual findings upon which NIOSH based the dose reconstruction.  However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB.  20 C.F.R. § 30.318(b).

1.       The dose reconstruction did not take into account the multitude of x-rays you had to take on account of your work-related injuries (mostly back injuries).   You estimate you had several hundred of these x-rays.  You would not have been hurt if it had not been for your work, and these x-rays were required under workers’ compensation in order to receive benefits.  (Hearing Transcript (HT) pages 7 through 8.)

NIOSH procedures do not consider doses from medical x-ray procedures as applicable to include in an employee’s dose reconstruction other than those required as a condition of employment.  This is both a factual objection and an objection to NIOSH methodology, since medical x-ray doses due to work-related injuries are not covered under NIOSH procedures.  NIOSH methodology is binding on the FAB.

2.       You stated that at Y-12 the main radiation was alpha radiation and there is no way to reconstruct an alpha dose.  DOE painted over the alpha radiation on the walls, but over time the paint flecked off.  (HT pages 8 through 11.)

3.       You were exposed to quite bit of the alpha radiation through ingestion and breathing.  Their shop did a lot of grinding and modification of equipment from other parts of the plant, including process areas.  They also worked on amphibious landing craft that was armored with a mixture of depleted uranium and other metals.  Therefore, you think the majority of your radiation exposure was internal rather than external.  However, you were not involved in any bioassay monitoring.  (HT pages 8 through 11, and pages 15 through 17)

The second and third objections concern the accuracy of the dose reconstruction.  The main issue concerns your exposure to alpha radiation through ingestion and breathing and the fact that you did not participate in a bioassay monitoring program.  The basic principle of dose reconstruction is to characterize the occupational radiation environment to which a worker was exposed using available worker and/or workplace monitoring information.  In cases where radiation exposures in the workplace environment cannot be fully characterized based on available data, default values based on reasonable scientific assumptions are used as substitutes.  The approaches for determining your external and internal dose are discussed in detail in NIOSH’s dose reconstruction report.  Since your concerns focus on internal dose, the discussion below will also focus on this area of the dose reconstruction.

NIOSH reviewed your employment records and no records of bioassay monitoring results were found.  NIOSH notes that internal monitoring programs are applied to individuals who are likely to be exposed to radiation from internally-deposited radioactive material.  Personnel who are not selected for internal dose monitoring programs are less likely to be exposed.  However, to account for any incidental dose that may have been received but not documented, NIOSH assigned internal dose based on a hypothetical intake assuming an intake of 28 radionuclides.  NIOSH considered that this resulted in an intake that greatly exceeds any possible actual intake by you because this level of activity would be expected to be detectable by workplace indicators.  Additionally, these nuclides would not all be found in a single location on site.

In the “Dose from Radiological Incidents” section of the dose reconstruction report NIOSH indicated that you worked with contaminated parts and equipment.  In the course of this work you may have received external radiation exposures from the contamination or internal radiation exposures during grinding, cutting, or welding activities if protective measures such as enclosures or ventilation were not adequate.  However, NIOSH considered that these potential exposures were accounted for in this dose reconstruction by the claimant-favorable assumptions applied in the calculation of both external and internal doses.

For the purposes of the dose reconstruction, NIOSH believes they assigned you the highest reasonably possible radiation dose related to radiation exposure and intake using available dosimetry data, when available, and maximizing assumptions in the absence of documented exposures.  The NIOSH approach is based on current science, documented experience and relevant data.  These objections are challenges of the dose reconstruction methodology, which is binding on the FAB.

4.       Your physician linked your cancer to radiation.  You have no family history of cancer and no unhealthy habits (smoking or drinking).  (HT pages 9 through 10)

5.       Out of a group of 60-70 co-workers, you believe a much higher amount died of cancer than would have died in a similar size group involved in non-radiation work.  (HT pages 17 through 19)

The fourth and fifth objections concern statements that your cancer was caused by occupational radiation exposure and that there is no family history of cancer and no unhealthy habits.  You also noted that a much higher number of co-workers died of cancer than would have died in a similar size group involved in non-radiation work.  It is a scientific fact that ionizing radiation may cause some cancers, but no one can be certain in any specific case.  The software program, named the NIOSH-Interactive RadioEpidemiological Program (NIOSH-IREP), is based on NIOSH regulations found at 42 C.F.R. part 81 and uses the updated version of radioepidemiological tables developed by the National Institutes of Health as a basis for determining probability of causation for employees covered under EEOICPA.  NIOSH-IREP allows claims examiners to apply the National Cancer Institute risk models directly to data for an individual claimant. 

Scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.  If research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation. 

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty.  The PoC is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer to the general population.  42 C.F.R. § 81.4(n).  DOL uses NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his/her individual radiation dose.  The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.  None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens. 

NIOSH-IREP allows DOL to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the PoC.  Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual.  As required by EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses.  This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.  

Factors which may or may not potentially predispose an employee to the carcinogenic effects of radiation to the affected site, such as family history of cancer, exposure to other toxic substances, or the effect that radiation dose to other organs/tissues may have on the dose directly to the primary cancer site, are not part of the NIOSH-IREP model. 

These objections are challenges of the methodology that OWCP uses to determine if a claimed cancer was at least as likely as not related to covered employment (i.e., the probability of causation methodology).  This methodology is binding on the FAB.   

In summary, your objections are challenges of fact which do not require a rework by NIOSH, challenges of NIOSH methodology, which is binding on the FAB, and challenges of the OWCP’s probability of causation methodology, which is binding on the FAB. 

FINDINGS OF FACT

1)  You filed a Form EE-1 on October 23, 2002, based on your esophageal cancer.

2)  You were diagnosed with esophageal cancer on April 12, 2002.

3)  You were employed at the Y-12 plant in Oak Ridge, Tennessee, for the period of April 1, 1974 to February 11, 2002.

4)  The probability that your cancer was due to radiation exposure at the DOE facilities in which you worked is 28.1%.

5)  On March 4, 2005, the Denver district office issued a recommended decision concluding that you are not entitled to compensation in the amount of $150,000 since your cancer is not covered under § 7384 of the Act. 

6)  You requested a hearing, which was held on July 20, 2005, in Oak Ridge, Tennessee.  The objections raised are challenges of fact which do not require a change in the dose reconstruction or challenges of NIOSH methodology, which is binding on the FAB.  20 C.F.R. § 30.318(b).

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on March 4, 2005, and finds that the evidence submitted before and during the hearing does not establish that your esophageal cancer was at least as likely as not related to your employment at the covered facilities in which you worked as specified by § 7384 of the Act.  42 U.S.C. § 7384n.  The evidence in the record does not establish that you are entitled to compensation under § 7384 of the Act because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that your cancer was caused by radiation exposure received at DOE facilities in the performance of duty.  Therefore, I find that the decision of the Denver district office is supported by the evidence and the law and cannot be changed based on the objections you submitted. 

As explained in § 30.110(c) of the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.”  20 C.F.R. § 30.110(c).  The undersigned hereby denies payment of lump sum compensation and medical benefits under § 7384 of the Act.

Jacksonville, FL

Mark Stewart

Hearing Representative

EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  A claimant who receives a recommended denial from the district office is entitled to file objections to the decision.  20 C.F.R. § 30.310.  Since you submitted a written objection to recommended decision but did not specifically request a hearing, a review of the written record was performed.  20 C.F.R. § 30.312.

In reviewing any objections submitted, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  20 C.F.R. § 30.313. 

For the reasons set forth below, your claim for benefits is denied. 

STATEMENT OF THE CASE

On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for lung cancer.  You submitted medical evidence establishing that you were diagnosed with lung cancer on December 7, 2000.[1] 

On the Form EE-3, Employment History, you stated you were employed at the Savannah River Site in Aiken, South Carolina from August 1988 through April 1993.  The DOE verified your employment at the Savannah River Site as August 23, 1988 through April 29, 1993.  In order to be eligible for benefits, the evidence must establish that your cancer was at least as likely as not related to your employment at a Department of Energy (DOE) facility.

To determine the probability of whether you sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  20 C.F.R. § 30.115.  The NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On June 21, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to the NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on June 28, 2004.

The district office used the information provided in this report to determine that there was a 27.04% probability that your cancer was caused by radiation exposure at the Savannah River Site.  42 C.F.R. § 81.20.  The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision.  This 60-day period expired on August 31, 2004.  

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including the NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.  20 C.F.R. § 30.310(a).  The regulations further provide that if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the 60 days, or if the claimant waives any objections to all or part of the recommended decision, the 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). 

If the claimant objects to the NIOSH dose reconstruction, the FAB will evaluate the factual findings upon which NIOSH based the dose reconstruction.  However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB. 

On July 15, 2004, the Final Adjudication Branch received your letter of objection.  In your letter, you stated that you believed too many people had worked on your dose reconstruction, and that you did not believe that computers could be used to reconstruct someone’s illness.  Your objections have been reviewed.

Congress directed NIOSH to create a method of calculating the probability that a compensable cancer occurred “in the performance of duty.”  The risk models used by NIOSH take into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from the various types of radiation during each year, along with epidemiological studies of cancer rates.  Some of the data that may be included in the dose reconstruction include, but are not limited to: internal dosimetry (such as results from urinalysis); external dosimetry data (such as film badge readings); workplace monitoring data (such as air sample results); workplace characterization data (such as type and amount of radioactive material processed); and descriptions of the type of work performed at the work location.  When dose information is not available, is very limited, or the dose of record is low, NIOSH may use the highest reasonably possible radiation dose, based on reliable science, documented experience, and relevant data, to complete a claimant’s dose reconstruction.  The guiding principle in conducting these dose reconstructions is to ensure that the assumptions are fair, consistent, and well-grounded in the best available science, while ensuring uncertainties in the science and data are handled to the advantage, rather than to the detriment, of the claim when feasible.  The use of a computer to calculate the probability of causation is required, due to the vast amounts of data involved.  Furthermore, the reconstruction is of the probable radiation dose received during employment, and not the diagnosed illness.  The issues that you raised concern methodology, and are binding on the FAB. 

FINDINGSOF FACT

1)  On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on your lung cancer.

2)  You were employed at the Savannah River Site from August 23, 1988 through April 29, 1993.

3)  You were diagnosed with lung cancer on December 7, 2000.

4)  Based on the dose reconstruction performed by the NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer.  The district office calculated a probability of causation of 27.04% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility.  The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

5)  On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

6)  You submitted a written objection to the recommended decision, and a review of the written record was conducted.

CONCLUSIONSOF LAW

Based on my review of the evidence of record and the recommended decision, I find that the evidence does not establish that your lung cancer was at least as likely as not related to your employment at a covered facility.  42 U.S.C. § 7384n.  I also find that the decision of the district office cannot be changed based on the objections submitted.  As provided in the implementing regulations, any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.  20 C.F.R. § 30.110(b). 

Under the Act, you are not entitled to benefits and your claim for compensation is denied.  42 U.S.C. § 7384s.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

[1]The district office reported a diagnosis date of December 8, 2000 to NIOSH.  Despite this discrepancy, the percentage of probability of causation would not be materially affected as both dates are within the same year.

EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  A claimant who receives a recommended denial from the district office is entitled to file objections to the decision.  20 C.F.R. § 30.310.  Since you submitted a written objection to recommended decision but did not specifically request a hearing, a review of the written record was performed.  20 C.F.R. § 30.312.

In reviewing any objections submitted, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  20 C.F.R. § 30.313. 

For the reasons set forth below, your claim for benefits is denied. 

STATEMENT OF THE CASE

On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for lung cancer.  You submitted medical evidence establishing that you were diagnosed with lung cancer on December 7, 2000.[1] 

On the Form EE-3, Employment History, you stated you were employed at the Savannah River Site in Aiken, South Carolina from August 1988 through April 1993.  The DOE verified your employment at the Savannah River Site as August 23, 1988 through April 29, 1993.  In order to be eligible for benefits, the evidence must establish that your cancer was at least as likely as not related to your employment at a Department of Energy (DOE) facility.

To determine the probability of whether you sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  20 C.F.R. § 30.115.  The NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On June 21, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to the NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on June 28, 2004.

The district office used the information provided in this report to determine that there was a 27.04% probability that your cancer was caused by radiation exposure at the Savannah River Site.  42 C.F.R. § 81.20.  The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision.  This 60-day period expired on August 31, 2004.  

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including the NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.  20 C.F.R. § 30.310(a).  The regulations further provide that if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the 60 days, or if the claimant waives any objections to all or part of the recommended decision, the 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). 

If the claimant objects to the NIOSH dose reconstruction, the FAB will evaluate the factual findings upon which NIOSH based the dose reconstruction.  However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB. 

On July 15, 2004, the Final Adjudication Branch received your letter of objection.  In your letter, you stated that you believed too many people had worked on your dose reconstruction, and that you did not believe that computers could be used to reconstruct someone’s illness.  Your objections have been reviewed.

Congress directed NIOSH to create a method of calculating the probability that a compensable cancer occurred “in the performance of duty.”  The risk models used by NIOSH take into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from the various types of radiation during each year, along with epidemiological studies of cancer rates.  Some of the data that may be included in the dose reconstruction include, but are not limited to: internal dosimetry (such as results from urinalysis); external dosimetry data (such as film badge readings); workplace monitoring data (such as air sample results); workplace characterization data (such as type and amount of radioactive material processed); and descriptions of the type of work performed at the work location.  When dose information is not available, is very limited, or the dose of record is low, NIOSH may use the highest reasonably possible radiation dose, based on reliable science, documented experience, and relevant data, to complete a claimant’s dose reconstruction.  The guiding principle in conducting these dose reconstructions is to ensure that the assumptions are fair, consistent, and well-grounded in the best available science, while ensuring uncertainties in the science and data are handled to the advantage, rather than to the detriment, of the claim when feasible.  The use of a computer to calculate the probability of causation is required, due to the vast amounts of data involved.  Furthermore, the reconstruction is of the probable radiation dose received during employment, and not the diagnosed illness.  The issues that you raised concern methodology, and are binding on the FAB. 

FINDINGSOF FACT

1)  On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on your lung cancer.

2)  You were employed at the Savannah River Site from August 23, 1988 through April 29, 1993.

3)  You were diagnosed with lung cancer on December 7, 2000.

4)  Based on the dose reconstruction performed by the NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer.  The district office calculated a probability of causation of 27.04% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility.  The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

5)  On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

6)  You submitted a written objection to the recommended decision, and a review of the written record was conducted.

CONCLUSIONSOF LAW

Based on my review of the evidence of record and the recommended decision, I find that the evidence does not establish that your lung cancer was at least as likely as not related to your employment at a covered facility.  42 U.S.C. § 7384n.  I also find that the decision of the district office cannot be changed based on the objections submitted.  As provided in the implementing regulations, any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.  20 C.F.R. § 30.110(b). 

Under the Act, you are not entitled to benefits and your claim for compensation is denied.  42 U.S.C. § 7384s.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

[1]The district office reported a diagnosis date of December 8, 2000 to NIOSH.  Despite this discrepancy, the percentage of probability of causation would not be materially affected as both dates are within the same year.

EEOICPA Fin. Dec. No. 47583-2004 (Dep’t of Labor, February 2, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under Part B of 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 stated below, your claim is denied.

STATEMENT OF THE CASE

On July 25, 2003, you filed a claim (Form EE-1) for benefits under Part B of the EEOICPA.  On the Form EE-1, you identified brain cancer, oligodendroglioma, as the diagnosed condition for which you sought compensation.  In support of your claim, you submitted medical records that discuss an April 3, 2003 biopsy of the brain tumor which revealed an anaplastic oligodendroglioma.  The Department of Energy (DOE) verified that you were employed by various contractors at the Hanford[1] site intermittently from 1964 thorugh 1998.[2]  The medical and employment evidence submitted show that you were diagnosed with brain cancer after beginning employment at a DOE facility. 

To determine the probability that you sustained cancer in the performance of duty while employed at the Hanford site, on September 10, 2003 the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction.  On April 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  On May 5, 2004, NIOSH provided the district office with a copy of the dose reconstruction report in which you were given an overestimate of radiation dose using claimant-favorable assumptions related to radiation exposure and intake.  NIOSH considered the internal and external radiation doses based on dosimetry records from the DOE, dosimetry parameters applicable to the Hanford site, current science, and information obtained in the computer assisted telephone interview (CATI).  Using the dose estimates provided by NIOSH and the software program NIOSH-IREP, the district office calculated the probability of causation for the brain cancer.  These calculations show that the probability that your cancer was caused by exposure to radiation during your employment at the Hanford site is 25.05%.  

In review of your case file, the district office noticed that NIOSH performed the dose reconstruction based on ICD-9 code 191 instead of the correct ICD-9 code 191.8.  However, NIOSH procedure indicates that the models used in the external and internal dose reconstruction and the IREP model are the same for all ICD-9 codes under 191.  The dose reconstruction as performed is appropriate and is not affected by the fourth digit (in this case).  Accordingly, on June 1, 2004, the district office issued a recommended decision to deny your claim for benefits.  The district office found that you filed a claim under Part B of the EEOICPA on July 25, 2003 but that your brain cancer is not “at least as likely as not” caused by your employment at a covered facility, within the meaning of 42 U.S.C. § 7384n(b).  As such, the district office concluded that you are not a “covered employee with cancer” as defined by 42 U.S.C. § 7384l(9)(B)(i) and that you are not entitled to compensation under Part B of the EEOICPA.

On July 23, 2004, the FAB received your written objections to the recommended decision.  In your letter of objection you specifically objected to the fact that the NIOSH dose reconstruction failed to show that your cancer was “at least as likely as not related” to your employment at the Hanford site.  On September 8, 2004, a hearing was held via telephone attended by your authorized representative, [Name of Representative].  Throughout the hearing testimony and in your letter of objection, it was stated that the use of the wrong ICD-9 code and the incorrect location of the tumor (left versus right) in the dose reconstruction needs further investigation.  You did not submit any additional evidence to support your objections.

After considering the evidence of record, the NIOSH report, your objections to the recommended decision, and after conducting a hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1.         You were employed at a covered DOE facility, the Hanford site, during a covered period.

2.         You were diagnosed with a covered occupational illness, brain cancer, after beginning employment at a DOE facility.

3.         There is a 25.05% probability that the brain cancer was caused by exposure to radiation during your employment at the Hanford site. 

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

CONCLUSIONS OF LAW

The purpose of the EEOICPA is to provide “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” 42 U.S.C. § 7384d(b).  In order to be afforded coverage, the claimant must first establish that the employee had been diagnosed with an “occupational illness,” defined by the Act as “a covered beryllium illness, cancer referred to in § 7384l(9)(B). . .or chronic silicosis, as the case may be.”  42 U.S.C. § 7384l(15).  You identified and submitted medical documentation consistent with the diagnosis of brain cancer, which is a cancer covered under the EEOICPA.

The Act explains that a “covered employee with cancer” is, among other things, a DOE or AWE employee who contracted that cancer after beginning employment at a DOE or AWE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty.  42 U.S.C. § 7384l(9)(B).  In order to establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs the district office to forward a complete copy of your case record to NIOSH for dose reconstruction.  20 C.F.R. § 30.115.  NIOSH attempts to determine how high the exposures could possibly be for someone who worked at the Hanford site during the covered period, given what is known about the exposures of the workers.  This approach forms the basis for the NIOSH dose reconstruction using a series of the highest exposures for various exposure modes (internal vs. external) at different times during the duration of the entire project. 

NIOSH’s approach to conclude the dose reconstruction process based on claimant-favorable assumptions, which includes using the same model for ICD-9 code 191 and ICD-9 code 191.8, is consistent with its methodology.  Section 30.318 of the regulations states that “The methodology used by HHS in arriving at reasonable estimates of the radiation doses received. . .is binding on the FAB.” 20 C.F.R. § 30.318.  Therefore, your request for a re-work to consider the location of the brain tumor and the correct ICD-9 code is a challenge to the methodology utilized by NIOSH and will not be addressed by the FAB.  

Based on NIOSH’s findings, the district office determined that the probability that your brain cancer was caused by exposure to radiation during your employment at the Hanford site is 25.05%.  The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is a 25.05% probability that your cancer is related to your employment at the Hanford site.  Since your probability of causation is less than 50%, it is determined that you did not incur cancer in the performance of duty for an AWE or DOE facility.  Accordingly, you do not meet the statutory definition of a “covered employee with cancer” and your claim for compensation must be denied.

I find that the district office’s June 1, 2004 recommended decision is correct and I accept those findings and the recommendations of the district office.  Accordingly, your claim for compensation under Part B of the EEOICPA is hereby denied.

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch

[1] The Hanford site is identified on the DOE’s Covered Facility List as a DOE facility from 1942 through the present. 

[2] For the purpose of the dose reconstruction, NIOSH considered the employment from 1964 through 1998 to be continuous.

EEOICPA Order No. 50245-2004 (Dep’t of Labor, April 14, 2011)

ORDER DENYING REQUEST FOR RECONSIDERATION

This is the response to the claimant’s December 28, 2010 request for reconsideration of the November 30, 2010 decision of the Final Adjudication Branch (FAB) on his survivor claim under both Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  In that decision, FAB concluded that with respect to Part B, the employee’s pancreatic cancer was not sustained “in the performance of duty,” as that term is defined in § 7384n(b), because it is not “at least as likely as not” (a 50% or greater probability) that such cancer was related to the radiation doses she received during her covered employment at a Department of Energy (DOE) facility–Hangar 481, Kirtland Air Force Base (AFB)–from March 1, 1989 through June 30, 1994.  FAB also concluded that with respect to Part E of EEOICPA, the employee was not a “covered DOE contractor employee,” as that term is defined in § 7385s(1), because it is also not at least as likely as not that her exposure to toxic substances at Hangar 481 was a significant factor in aggravating, contributing to, or causing her pancreatic cancer.  It was because of these two conclusions that the claim for survivor benefits due to the employee’s pancreatic cancer under Part B, and for her death due to pancreatic cancer under E, was denied.  A decision on the Part E claim for the employee’s death due to acoustic neuroma, however, was deferred pending further development.

In support of his December 28, 2010 reconsideration request, the claimant raised a number of interwoven and somewhat confusing arguments.  To the extent that I can discern what they are, his arguments in support of his request are as follows.

1.  FAB should have found that the period of the employee’s covered employment began when she started work for Ross Aviation at Hangar 481, Kirtland AFB, on December 9, 1985, rather than when Hangar 481 became a covered DOE facility on March 1, 1989, because Ross Aviation had contracts with DOE and its predecessor agencies starting in 1970, and because those contracts show that Ross Aviation began working at Hangar 481 in 1984.  In conjunction with this argument, which the claimant raised earlier in the adjudication of his claim, he asserts that copies of the contracts in question that he submitted have either never been considered, or were not considered by the appropriate agency of the Department of Labor.

2.  FAB wrongly found that the employee’s diagnosed acoustic neuroma was not an “occupational illness” that is compensable under Part B that should have been taken into account during the dose reconstruction process and the determination of the probability of causation for the Part B claim.

3.  FAB wrongly concluded that the effect of the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation on December 9, 1985, as well as her alleged “non-employment” exposure during her accepted covered employment, could not be taken into account when it determined the probability of causation for her pancreatic cancer.  The claimant contends that these alleged exposures to radiation can be inferred from evidence in the file and must be taken into account, because 42 U.S.C. § 7384n(c)(3)(C) provides that the regulatory guidelines for determining the probability of causation for cancer under Part B “shall take into consideration. . .other relevant factors.”  As was the case with the claimant’s first argument noted above, he made this particular argument previously in the adjudication of his claim.

4.  FAB wrongly concluded that the alleged radiation exposure of the employee “in other employments” was not covered under EEOICPA.  The claimant contends that this alleged radiation exposure should have been taken into account and “added to the worker’s total exposure. . . .”  While he acknowledges that the dose reconstruction methodology that the National Institute for Occupational Safety and Health (NIOSH) used to estimate the radiation dose of the employee is binding on FAB, he believes that FAB should have determined that his objections concerning the application of that methodology, as it related to the alleged exposures in question, needed to be considered by NIOSH and therefore should have returned the Part B claim to the district office for referral to NIOSH for such consideration.  To support this argument regarding the employee’s radiation dose, he asserts that:

[G]eneral principles of workers [sic] compensation law contemplate that a worker who was exposed to radiation in multiple employments, like the worker in this case, is not limited to an analysis of exposure during the last term of injurious employment.  Rather, in such cases the sum total of the worker’s exposure during successive employments should be taken into account in assessing the effect of the worker’s last injurious exposure to radiation, and in so doing the exposure with the last employer. . .is given its due weight in contributing to the onset of a subsequently occurring cancer. 

Similar to the first and third arguments listed above, the claimant raised this argument previously in the adjudication of his EEOICPA claim.

5.  The claimant was not afforded the opportunity to present his objections regarding the dose reconstruction for the employee to NIOSH, which he acknowledges is “the agency which most logically has the expertise to evaluate the merits” of his position.  Therefore, the claimant believes that FAB should have returned his Part B claim to the district office for referral to NIOSH so it could consider his contention that the dose reconstruction for the employee should have included her non-employment and “other employments” exposures.

After careful consideration of these arguments, and for the reasons set forth below, the request for reconsideration is hereby denied.

With regard to the first argument noted above, and as set out in FAB’s November 30, 2010 decision, there is no dispute that Ross Aviation performed work under contracts it had with DOE and its predecessor agencies as early as February of 1970, and that the evidence establishes that the employee started working for Ross Aviation on December 9, 1985.  The pertinent question for the purposes of the claimant’s survivor claim, however, concerns where Ross Aviation did its work under its contracts with DOE that covered the period of the employee’s employment from December 9, 1985 through June 30, 1994.  Contrary to the claimant’s allegations noted above, the contracts at issue have, in fact, been previously reviewed by the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), which is the division of the Office of Workers’ Compensation Programs that administers EEOICPA[1], when NIOSH provided her with copies of them and asked, in a September 30, 2009 letter regarding the petition to add a class of employees at Hangar 481 to the Special Exposure Cohort the claimant filed with NIOSH, whether those contracts were sufficient to expand the “covered” period of Hangar 481 as a DOE facility.  In her February 2, 2010 response, the Director noted that after carefully reviewing those contracts, it was her conclusion that they did not support changing the determination that Ross Aviation was a DOE contractor at Hangar 481, Kirtland AFB, for the period March 1, 1989 through February 29, 1996.  Those same contracts were also carefully considered yet again when the claimant submitted copies of them to the case file in support of his claim, and are briefly described below:

  • Contract No. AT(29-2)-2859 (covering February 1, 1970 through January 31, 1973) states that Ross Aviation would be performing air transport services for the Atomic Energy Commission (AEC) “at the Albuquerque Sunport, , .”  There is no mention in this contract that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Contract No. AT(29-2)-3276 (covering February 1, 1973 through January 31, 1974, with multiple modifications that extended the coverage to February 28, 1979 and changed the contract number to E(29-2)-3276 when the AEC was replaced by the Energy Research and Development Administration (ERDA)) states that the “main operations base shall be maintained at the Contractor’s facility at the Albuquerque International Airport. . . .”  Again, there is no mention in this contract or its modifications that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Modification number A011 to Contract No. EY-76-C-04-3276 (extending the coverage of that contract from March 1, 1979 through February 29, 1984 and changing the contract number to DE-AC04-76DP03276 when ERDA was replaced by DOE) states that the “main operations base shall be maintained at the Government’s existing facility at the Albuquerque International Airport. . . .”  This modification also fails to state that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Modification number M016 to Contract No. DE-AC04-76DP03276 (covering the period of March 1, 1980 to February 28, 1981) states that the location at which Ross Aviation is maintaining and flying Government-furnished aircraft is “the Main Base – .”[2]  Once again, there is no mention in this modification that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Contract No. DE-AC04-89AL52318 (covering March 1, 1989 through February 28, 1990, with extensions through February 29, 1996) is the earliest contract that describes the location at which Ross Aviation is working as “Government-owned facilities located on Kirtland Air Force Base, New Mexico.”  Because Contract No. DE-AC04-89AL52318 is a “Management and Operations” contract, this also means that Ross Aviation became a DOE contractor at that time within the meaning of 42 U.S.C. § 7384l(12)(B)(ii), because it was an “entity” that entered into a “management and operations” contract with DOE at a DOE facility, i.e., Hangar 481, Kirtland AFB.

As noted above, and as previously stated in FAB’s November 30, 2010 decision, there is no probative and persuasive evidence specifying that Ross Aviation performed its work under a contract with DOE at Hangar 481, Kirtland AFB, prior to March 1, 1989.  In this regard, and again as pointed out by FAB in the November 30, 2010 decision, the non-contractual evidence the claimant submitted in support of this argument is of diminished probative value when compared to the actual contracts described above.  Accordingly, there is no basis for extending the covered period for that facility to include the earlier period that the employee worked there beginning on December 9, 1985, and this argument does not warrant reconsideration of FAB’s November 30, 2010 decision.

As for the second argument described above, FAB’s November 30, 2010 decision specifically informed the claimant that acoustic neuroma is not an “occupational illness,” as that term is defined in § 7384l(15), and therefore is not compensable under Part B.  While he contends that acoustic neuroma is a cancer and therefore it should have been taken into account by NIOSH when it reconstructed the employee’s radiation dose and by DEEOIC when it determined the probability of causation based on that dose reconstruction, acoustic neuroma is actually a benign tumor of the eighth cranial nerve.  The only reference to that illness in the medical evidence is in an August 11, 2000 report by Dr. Jorge Sedas, in which Dr. Sedas related the employee’s history of a “right-sided acoustic tumor – stable”; there is no medical evidence in the file showing that the reported tumor was malignant (cancer).  The provisions of 42 U.S.C. § 7384n(b), (c), and (d) regarding the dose reconstruction process and the determination of probability of causation are applicable only for the purpose of determining whether cancer was sustained in the performance of duty.  For those reasons, this second argument also does not warrant reconsideration of the November 30, 2010 decision of FAB.

In the third argument described above, the claimant contends that FAB should have taken the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation and her alleged non-employment exposure during her accepted covered employment, which he asserts can be inferred from the evidence in the file, into account as “other relevant factors” when it determined the probability of causation for the employee’s pancreatic cancer under Part B.  While he is correct that § 7384n(c)(3)(C) of EEOICPA directs that the regulatory guidelines for determining the probability of causation for cancer claimed under Part B “shall take into consideration. . .other relevant factors,” the task of devising these guidelines (and taking those “other relevant factors” into account) pursuant to that statutory directive was assigned to the Secretary of Health and Human Services (HHS), not the Secretary of Labor, by the President in Sec. 2(b)(i)(A) of Executive Order 13179 of December 7, 2000.  65 Fed. Reg. 77487 (December 11, 2000).[3]  While DEEOIC is required by 42 C.F.R. § 81.20(b) to apply the HHS regulatory guidelines, which have been incorporated into the NIOSH Interactive RadioEpidemiological Program (NIOSH-IREP), DEEOIC does not have the authority to alter the guidelines to take into account the particular non-covered employment exposures the claimant alleges that the employee experienced both prior to and away from her covered employment at Hangar 481 as “other relevant factors” when determining the probability of causation for her pancreatic cancer under Part B.  On the contrary, as Paragraph 2.0 of the User’s Guide the for the Interactive RadioEpidemiological Program (NIOSH-IREP) states:

The NIOSH-IREP computer code is a web-based program that estimates the probability that an employee’s cancer was caused by his or her individual radiation dose.  Personal information (e.g., birth year, year of cancer diagnosis, gender) and exposure information (e.g., exposure year, dose) may be entered manually or through the use of an input file.  For application by the U.S. Department of Labor (DOL), the input file option is used to preset all personal information, exposure information, and system variables.  These input files are created by NIOSH for each individual claim and transmitted to the appropriate DOL district office for processing.[4] (emphasis added)

Accordingly, the claimant’s third argument also does not warrant granting his request to reconsider FAB’s November 30, 2010 decision.

In the fourth argument in support of the claimant’s request, he contends that the employee’s alleged radiation exposures “in other employments” should have been taken into account and “added to the worker’s total exposure” as “other relevant factors.”  As FAB’s November 30, 2010 decision noted, the issue of what radiation dose to include is exclusively under the control of NIOSH, pursuant to the President’s assignment of the task of performing dose reconstructions to the Secretary of HHS (which then re-delegated it to NIOSH) in Sec. 2(b)(iii) of Executive Order 13179.  Also, the statute itself, at § 7384n(d)(1), restricts the dose to be used to determine probability of causation to radiation exposure that occurred solely “at a facility,” which in the employee’s case, means the dose she received when Hangar 481 was a DOE facility–March 1, 1989 through June 30, 1994.  HHS has issued regulations governing the dose reconstruction process at 42 C.F.R. part 82, and those regulations do not provide for any consideration of pre-employment and non-employment radiation exposures in estimating radiation dose incurred at a DOE facility, regardless of the claimant’s belief that principles of workers’ compensation require such consideration.  Because consideration of the “other relevant factors” referred to in 42 U.S.C. § 7384n(c)(3)(C), which as noted above, refers solely to the determination of probability of causation, this fourth argument also does not warrant reconsideration of the November 30, 2010 FAB decision on the claim.

Finally, in the fifth argument, the claimant asserts that FAB should have returned his Part B claim to the district office for referral to NIOSH, so NIOSH could consider his contention that the dose reconstruction for the employee should have included non-employment and “other employments” exposures.  While there is no dispute that NIOSH is “the agency which most logically has the expertise to evaluate the merits” of his position, the fact remains that the claimant was provided with the opportunity, at multiple points during the dose reconstruction process at NIOSH, to submit whatever evidence he had regarding the employee’s radiation exposures for consideration by NIOSH.  Further, as discussed above, the types of exposures at issue here are simply not covered under EEOICPA.  Therefore, there was no reason for FAB to return the Part B claim to the district office for referral to NIOSH, and this final argument, like the preceding four, does not provide a sufficient basis for reconsidering FAB’s November 30, 2010 decision.

I must deny the request for reconsideration because the claimant has not submitted any argument or evidence which justifies reconsideration of the November 30, 2010 final decision.  That decision of FAB is therefore final on the date of issuance of this denial of the request for reconsideration.  See 20 C.F.R. § 30.319(c)(2).

Cleveland,

Tracy Smart

Hearing Representative

Final Adjudication Branch

[1]  The sources of authority for administering EEOICPA are set out at 20 C.F.R. § 30.1,which states that the Director of the Office of Workers’ Compensation Programs (and his designee the Director of DEEOIC) has the primary responsibility to administer EEOICPA, except for those activities assigned to other agencies.  This responsibility includes the “exclusive authority to. . . interpret the provisions of EEOICPA,” among them the statutory definition of “Department of Energy facility” at § 7384l(12).

[2]  The case file also contains numerous other modifications of Contract No. DE-AC04-76DP03276, but those other modifications also do not include a “Statement of Work” provision identifying the location where Ross Aviation was to perform its work; thus, they are not described above.  For example, modification number M062 extended the provisions of that contract to cover the period from March 1, 1984 through February 28, 1989 (during which the employee began working for Ross Aviation), but contained no language whatsoever that described where Ross Aviation performed its work for DOE.

[3]  See also 20 C.F.R. § 30.2(b) (“. . .HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee’s radiogenic cancer”) and 20 C.F.R. § 30.213(b) (“HHS’s regulations satisfy the legal requirements in section 7384n(c) of the Act, which also sets out OWCP’s obligation to use them in its adjudication of claims for radiogenic cancer filed under Part B of the Act, and provide the factual basis for OWCP to determine if the ‘probability of causation’ (PoC) that an employee’s cancer was sustained in the performance of duty is 50% or greater (i.e., it is ‘at least as likely as not’ causally related to employment), as required under section 7384n(b)”).

[4]  See: http://www.cdc.gov/niosh/ocas/pdfs/irep/irepug56.pdf(last visited April 13, 2011).

EEOICPA Fin. Dec. No. 55286-2006 (Dep’t of Labor, August 22, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claims 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 accepts the claims of [Claimant #1], [Claimant #2], and [Claimant #3] for compensation under Part B of EEOICPA in the amount of $150,000.00 ($50,000.00 payable to each) for the employee’s occupational illness of prostate cancer metastasized to the bone.

STATEMENT OF THE CASE

On September 20, 2002, [Employee’s spouse] filed a Form EE-2 with the Division of Energy Employees Occupational Illness Compensation (DEEOIC) and a Form DOE F 350.3 with the Department of Energy (DOE), seeking benefits as the surviving spouse of [Employee][Employee’s spouse] identified the claimed conditions of prostate cancer and bone cancer.  On May 8, 2003, [Employee’s spouse] died and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

[Claimant #1] (on March 10, 2004), [Claimant #2] (on April 5, 2004), and [Claimant #3] (on April 5, 2004) each submitted a Form EE-2 with DEEOIC as the surviving children of [Employee].  They claimed [Employee] developed prostate cancer and bone cancer as a result of his employment at the Hanford site.  

[Employee’s spouse] had submitted a Form EE-3 in which she alleged that [Employee] was employed at the Hanford site as a truck driver with E.I. DuPont Nemours & Company (Du Pont) from December 1943 to December 1944, with General Electric Company (GE) as a millwright from July 6, 1954 to January 3, 1965, and as a millwright with Battelle-Northwest (Battelle) at the Pacific Northwest National Laboratory (PNNL) from January 4, 1965 to July 8, 1983.  A representative of DOE verified that [Employee] was employed at the Hanford site, a DOE facility, by DuPont, a DOE contractor, from December 14, 1943 to December, 1944, and by GE, another DOE contractor, as a millwright from July 6, 1954 to December 31, 1964, and with Battelle at PNNL, a second DOE facility, from January 4, 1965 to July 29, 1983.  The Oak Ridge Institute for Science and Education (ORISE) database contained information verifying that [Employee] was employed at the Hanford site starting on July 6, 1954.  DOE records establish that [Employee] had worked in Area 200 West during his employment at the Hanford site.

The medical evidence of record includes a pathology report, dated October 3, 1988, in which Dr. Thomas D. Mahony diagnosed prostate cancer.  The medical evidence of record also includes a whole body bone scan conducted on September 27, 1988, which noted the metastases of the prostate cancer to the bone of the skull, ribs, thoracic vertebra, pelvis and right femur.

The evidence of record includes a copy of the employee’s death certificate, which indicates that [Employee] was married at the time of his death on October 4, 1991 to [Employee’s spouse].  You also submitted a copy of [Employee’s spouse]‘s death certificate.  [Employee]‘s death certificate lists the cause of his death on October 4, 1991 as arrhythmia due to myocardial infarction, coronary heart disease, and cancer of the prostate metastases.  In support of your claims, you each submitted a copy of your birth certificate showing that you are the biological children of [Employee] and that [Claimant #1] was born on May 26, 1957, [Claimant #2] was born on October 4, 1941, and that [Claimant #3] was born on March 3, 1950.  At the time of the employee’s death on October 4, 1991, [Claimant #1] was 34 years old, [Claimant #2] was 50 years old, and [Claimant #3] was 41years old.  [Claimant #1] produced sufficient evidence to show the change in her surname.  

To determine the probability that [Employee]‘s prostate cancer was sustained in the performance of duty, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  In a prior final decision dated May 8, 2006, the FAB denied the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] because there was only a 24.78% probability that the employee’s prostate cancer was caused by radiation exposure at the Hanford site.  The FAB concluded that [Employee] did not qualify as a covered employee with cancer under Part B, that the dose reconstruction estimates and the probability of causation calculations were performed according to EEOICPA and its regulations, and that [Claimant #1], [Claimant #2], and [Claimant #3] were not entitled to survivor benefits under Part B of EEOICPA.   

On March 29, 2007, NIOSH issued OCAS-PEP-012 Rev-00, entitled “Program Evaluation Plan:  Evaluation of Highly Insoluble Plutonium Compounds.”  It was NIOSH’s determination that the existence of the highly insoluble plutonium compound at the Hanford site should be considered Type Super S plutonium in dose reconstructions for employees at that site.  The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites.  The change went into effect on February 6, 2007.  See EEOICPA Bulletin No. 07-19 (issued May 16, 2007).

On April 2, 2008, a Director’s Order was issued vacating the FAB’s May 8, 2006 final decision and reopening the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] for further development.  The Director’s Order instructed the Seattle district office to forward the case to NIOSH for rework of the employee’s dose reconstruction pursuant to EEOICPA Bulletin No. 07-27 (issued August 8, 2007). 

On April 7, 2008, your claims were returned to NIOSH for rework of the employee’s radiation dose reconstruction; however the dose reconstruction was not completed following the addition of a particular class of Hanford employees to the Special Exposure Cohort (SEC).

On May 30, 2008, the Secretary of Health and Human Services (HHS) designated a class of employees at the Hanford site for inclusion in the SEC.  This designation went into effect on June 29, 2008.  The class consists of all employees of DOE, its predecessor agencies, and DOE contractors or subcontractors who worked from:  (1)  September 1, 1946 though December 31, 1961 in the 300 area; or (2) January 1, 1949 through December 31, 1968 in the 200 areas (East and West) at the Hanford Nuclear Reservation in Richland, Washington for a number of work days aggregating at least 250 work days occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC. 

On July 18, 2008, the Seattle district office recommended acceptance of your claims for survivor benefits under Part B, concluding that the employee is a member of the above-noted addition to the SEC, since he was employed at Hanford for an aggregate of 250 days or more during the SEC period and was diagnosed with prostate cancer that metastasized to the bone.  Secondary (metastatic) bone cancer is a “specified” cancer under EEOICPA.  The district office concluded that [Claimant #1], [Claimant #2], and [Claimant #3] are the surviving children of the employee and entitled to survivor benefits under Part B of the Act, in the amount of $150,000.00, to be divided equally among them in the amount of $50,000.00 each.  

On July 21, 2008, the FAB received written notification from [Claimant #2] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third-party claim or state workers’ compensation claim in relation to [Employee]‘s cancer.  [Claimant #2] stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, he averred that other than [Claimant #1] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee].  On July 21, 2008, the FAB also received [Claimant #2]‘s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

On July 22, 2008, the FAB received written notification from [Claimant #1] indicating that neither she, nor anyone in her family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]‘s cancer.  [Claimant #1] further stated that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, she averred that other than [Claimant #2] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee].  On July 22, 2008, the FAB also received [Claimant #1]‘s written notification indicating that she waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

On July 24, 2008, the FAB received written notification from [Claimant #3] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]‘s cancer.  [Claimant #3] further stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, he indicated that other than [Claimant #2] and [Claimant #1], there were no other individuals who might qualify as a survivor of [Employee].  On July 24, 2008, the FAB also received [Claimant #3]‘s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

1.      On September 20, 2002, [Employee’s spouse] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee][Employee’s spouse] died on May 8, 2003, and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

2.      [Claimant #1], [Claimant #2] and [Claimant #3] each submitted claims for survivor benefits under EEOICPA, as the surviving children of [Employee].

3.      [Claimant #1], [Claimant #2] and [Claimant #3] are the biological children of [Employee].   [Claimant #1], [Claimant #2] and [Claimant #3] are the only children and eligible survivors of the employee.

4.      The employee worked at the Hanford site, with DuPont from December 14, 1943 to December 31, 1944, with GE from July 6, 1954 to December 31, 1964, and at PNNL with Battelle from January 4, 1965 to July 29, 1983.  The employee was monitored for radiation exposures and worked in Area 200 West during his employment at the Hanford site.  This employment met or exceeded 250 aggregate work days, and qualifies [Employee] as a member of the SEC.  

5.      The employee was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis, and right femur, which is a “specified” cancer, on September 27, 1988, after starting work at a DOE facility. 

6.      [Claimant #1], [Claimant #2] and [Claimant #3] each stated that they, or anyone in their family, had never filed for or received any settlement or award from a lawsuit, tort suit, or third-party claim in relation to the illnesses claimed.  [Claimant #1], [Claimant #2] and [Claimant #3] have never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, nor have they or anyone in their family ever filed for or received any payments, awards, or benefits for a state workers’ compensation claim in relation to [Employee]‘s cancer. 

Based on the above noted findings of fact, the FAB hereby also 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, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  [Claimant #1], [Claimant #2] and [Claimant #3] waived their right to file objections to the findings of fact and conclusions of law contained in the July 18, 2008 recommended decision issued on their claims for benefits under EEOICPA.   

In order to be afforded coverage under Part B of EEOICPA, you must establish that [Employee] has been diagnosed with an occupational illness incurred as a result of his exposure to silica, beryllium, and/or radiation.  Further, the illness must have been incurred while he was in the performance of duty for DOE or certain of its contractors.  The evidence of record indicates that the employee worked in covered employment at Hanford from December 14, 1943 to December 31, 1944, and from July 6, 1954 to December 31, 1964, and at PNNL from January 4, 1965 to July 29, 1983 in Area 200 West.  The period of employment from July 6, 1954 to December 31, 1961 exceeds the 250-day requirement as set forth in the SEC designation.  The medical evidence submitted in support of the claim shows that [Employee] was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis and right femur, which is a “specified” cancer, on September 27, 1988, which was more than 5 years after his initial exposure to radiation. 

Accordingly, the employee is a member of the SEC and is a “covered employee with cancer” under § 7384l(9)(A) of EEOICPA.  See EEOICPA Bulletin No. 08-33 (issued June 30, 2008).  Further, [Claimant #1], [Claimant #2] and [Claimant #3] are the surviving children of the employee as defined by § 7384s(e)(1)(B) and are entitled to compensation in the amount of $150,000.00, to be divided equally.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

EEOICPA Order No. 62728-2008 (Dep’t of Labor, July 1, 2009)

REMAND ORDER

This order of the Final Adjudication Branch (FAB) concerns the above-noted claim for survivor benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claim is remanded to the Cleveland district office for additional development to determine if the employee qualifies as a “covered employee with cancer” under Part B of EEOICPA.

On October 20, 2004, [Claimant] filed a claim for survivor benefits under Part B and a request for assistance under former Part D of EEOICPA, as the spouse of [Employee].  [Claimant] identified lung cancer and mouth cancer as the medical conditions of [Employee] resulting from his employment for an atomic weapons employer.  Subsequent to [Claimant]‘s filing a request for assistance under Part D, Congress amended EEOICPA by repealing Part D and enacting Part E.  As part of these amendments, Congress directed that the filing of a request for assistance under former Part D would be treated as a claim for benefits under the new Part E.  On August 2, 2005, [Claimant] filed another Part E claim based on the alleged condition of lung disease.

On November 9, 2006, FAB issued a final decision denying [Claimant]‘s claim for survivor benefits under Part E because the evidence did not establish that [Employee] was employed by a DOE contractor performing remediation activities at a covered Department of Energy (DOE) facility.  On July 31, 2008, FAB also issued a final decision to deny [Claimant]‘s claim for survivor benefits under Part B because the evidence did not establish that [Employee] worked for a subsequent owner or operator of an atomic weapons employer facility at that atomic weapons employer facility.  On October 16, 2008, [Claimant] submitted an affidavit in which Ronald G. Proffitt indicated that he had worked with [Employee] at the General Steel Industries facility in Granite City , Illinois from 1963 to 1973.  Based on this new evidence, the Director issued a January 13, 2009 Order vacating the FAB’s July 31, 2008 final decision and reopening [Claimant]‘s claim for survivor benefits under Part B.

On Form EE-3 (employment history), [Claimant] indicated that [Employee] worked for Granite City Steel (General Steel Castings) from April 1963 to December 2000.  On November 8, 2004, a representative from DOE verified that [Employee] worked for Granite City Steel from January 14, 1974 to December 19, 2000.  Records from St. Elizabeth Medical Center dated March 17, 1980 and December 21, 2000 indicate that [Employee] worked for Granite City Steel located at 20th and Madison and 1520 20th Street, respectively, in Granite City, Illinois.  Earnings records from the Social Security Administration (SSA) indicate that [Employee] had earnings from National Roll [EIN deleted] from the second quarter of 1963 to the third quarter of 1973 and in 1978, and from National Steel Corporation [EIN deleted] from the first quarter of 1974 to 2001.  The General Steel Industries facility in Granite City, Illinois (also known as Old Betatron Building, General Steel Castings, General Steel Industries, Granite City Steel, and National Steel Company) is covered as an atomic weapons employer facility from 1953 to 1966.  This same facility is also covered for employees of subsequent owners and operators of this facility for residual radiation from 1967 to 1992, and also as a DOE facility for remediation activities in 1993. 

[Claimant] submitted medical records from [Employee]‘s healthcare providers, including a July 12, 2001 pathology report in which Dr. Samir K. El-Mofty diagnosed poorly differentiated squamous cell carcinoma of the floor of the employee’s mouth.  These medical records did not establish that [Employee] was diagnosed with lung cancer. 

[Claimant] submitted a copy of [Employee]‘s death certificate, signed by Dr. M. Bavesik, which listed the employee’s age as 60 as of the date of his death on November 28, 2001.  The death certificate indicated that the immediate cause of [Employee]‘s death was cancer of the floor of the mouth, and that [Claimant] was [Employee]‘s surviving spouse.  [Claimant] also submitted a copy of a July 8, 1966 marriage certificate confirming her marriage to [Employee] on that date.

To determine the probability of whether [Employee] contracted cancer in the performance of duty, the district office referred [Claimant]‘s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  The district office subsequently received the NIOSH Report of Dose Reconstruction for the employee, dated August 7, 2007.  The dose reconstruction was based on [Employee]‘s employment at the General Steel Industries facility from January 14, 1974 to December 19, 2000, and calculated the dose to his oral cavity from 1974 to the date his oral cavity cancer was diagnosed in 2001.  The district office used the information provided in this NIOSH report to determine that there was a 4.36% probability that [Employee]‘s cancer was caused by ionizing radiation exposure at the General Steel Industries facility in Granite City, Illinois.

On April 23, 2009, the district office issued a recommended decision to deny [Claimant]‘s claim for survivor benefits under Part B of EEOICPA based on the employee’s lung cancer, lung disease and mouth cancer.  In recommending denial of [Claimant]‘s claim, the district office found that [Employee] had covered employment at Granite City Steel from January 14, 1974 to December 19, 2000, but did not indicate what weight, if any, that it gave to the affidavit that [Claimant] submitted from Ronald G. Proffitt, or the SSA records indicating that [Employee] had reported earnings from National Roll from the second quarter of 1963 to the third quarter of 1973.  I note that evidence in the case file indicates that in 1994, SSA changed the company associated with [EIN deleted] from General Steel Industries to National Roll; this change was shown in all SSA reports printed after 1994.  In the absence of evidence to the contrary, SSA records showing wages paid by General Steel Castings Corporation [EIN deleted] or by National Roll [EIN deleted] are considered sufficient proof of employment by General Steel at their covered Granite City location.  The November 8, 2004 verification of employment by DOE is limited to employment at this facility by Granite City Steel (a subsequent owner and operator of this facility).  

The Federal (EEOICPA) Procedure Manual, Chapter 2-0600.10 (September 2004) requires the claims examiner to compare the dose reconstruction report to the evidence in the file.  If there are significant discrepancies between the information in the file and the dose reconstruction report, a new dose reconstruction report may be necessary. The Procedure Manual specifies that changed employment facilities or dates, or a change in the date of diagnosis outside of the month previously used, constitutes a significant discrepancy.  NIOSH did not consider [Employee]‘s dose prior to January 1974 and thus did not include his dose at the facility from April 1963 to that date in the dose reconstruction.  This constitutes a significant discrepancy.  A rework of the dose reconstruction is needed to determine if [Employee] qualifies as a covered employee with cancer under Part B based on his exposure to ionizing radiation during the performance of duty at a covered facility during a covered period.  This case should be returned to NIOSH for a rework of the dose reconstruction that includes [Employee]‘s dose from April 1963.

Because a rework is necessary,[Claimant]‘s claim for survivor benefits under Part B is not in posture for a final decision.  Pursuant to the authority granted to FAB by 20 C.F.R. § 30.317, [Claimant]‘s claim is remanded to the Cleveland district office.  On remand, the district office should perform such further development it may deem necessary to determine if [Employee] qualifies as a covered employee with cancer.  This should include referring the case to NIOSH for a rework of the dose reconstruction using the correct covered employment dates.  After this development, the district office should issue a new recommended decision on [Claimant]‘s claim for survivor benefits under Part B of EEOICPA.

Washington, DC

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch

Medical evidence

EEOICPA Fin. Dec. No. 13677-2004 (Dep’t of Labor, September 28, 2004)

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim for benefits is accepted. 

STATEMENT OF THE CASE

On October 26, 2001, you filed a claim for survivor benefits under the EEOICPA, Form EE-2, wherein you indicated that your late husband, [Employee] (hereinafter referred to as the employee), was diagnosed with “chronic lung disease,” throat cancer and left and right kidney cancer.  On Form EE-3 (Employment History), you indicated that the employee was employed by E.I. Dupont at the Savannah River Site (SRS)[1] from 1952 until December 31, 1980.  In November, 2001, the Department of Energy (DOE) verified that the employee worked at the SRS from June 23, 1952 until December 31, 1980.  You also submitted the employee’s death certificate and your marriage certificate in support of your claim as his only eligible surviving beneficiary.

You submitted medical evidence dated between October, 1984 and December, 1997.  As part of the medical evidence that you submitted was an October 31, 1984 pathology report by Dr. James V. Kasin, in which he diagnosed adenocarcinoma of the right kidney, and a May 20, 1986 pathology report by Dr. Denyse N. Parnell, in which she diagnosed adenocarcinoma of the left kidney. 

In regard to the claimed condition of throat cancer, a December 3, 1997 discharge summary by Dr. Jack L. Ratliff indicated that the employee had a “HX [history] of ENT [ear, nose and throat] cancer” and “bilateral neck resections for cancer of the base of his ‘nostril’.” However, the medical evidence of record is devoid of a pathology report to confirm the diagnosis of cancer to the ear, nose or throat.  In regard to the claimed condition of “chronic lung disease,” this is a non-covered condition under the Act.

In order for you to be eligible for benefits relating to the employee’s right and left kidney cancers, the evidence must establish that these two primary cancers were “at least as likely as not” related to the employee’s employment at a covered facility, pursuant to § 7384n(b) of the Act and § 30.210(b) of the implementing regulations.  42 U.S.C. § 7384n(b), 20 C.F.R. § 30.210(b).  To determine the probability of whether the employee sustained his cancers in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction on August 22, 2002 in accordance with § 30.115 of the implementing regulations.  20 C.F.R. § 30.115.  The district office submitted an amended application to NIOSH for dose reconstruction on May 17, 2004.

On June 26, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on July 1, 2004.[2] Pursuant to §§ 81.20 and 81.25 of the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 63.16% probability that the employee’s right and left kidney cancers were caused by radiation exposure at the SRS.  42 C.F.R. §§ 81.20, 81.25.

On August 20, 2004, the district office issued a recommended decision that concluded that you are the surviving spouse of the employee and that the employee’s right and left kidney cancers were “at least as likely as not” caused by his employment at the SRS.  It was therefore recommended that you receive compensation in the amount of $150,000.  The district office also concluded that you did not submit sufficient medical evidence to establish the claimed conditions of throat cancer and “chronic lung disease” under the Act.

Therefore, based on a review of the case file evidence, I make the following,

FINDINGS OF FACT

  1. You filed a claim for survivor benefits on October 26, 2001.
  1. You submitted evidence which established that the employee worked at the SRS from June 23, 1952 until December 31, 1980.
  1. You submitted evidence which established that the employee was diagnosed with right kidney cancer on October 31, 1984 and left kidney cancer on May 20, 1986.
  1. You submitted evidence which established that you are the employee’s surviving spouse.
  1. You did not submit sufficient medical evidence to establish that the employee was diagnosed with throat cancer.
  1. The claimed condition of “chronic lung disease” is not a covered occupational illness under the Act.
  1. NIOSH reported annual dose estimates for the employee’s two primary kidney cancers from the date of initial radiation exposure during covered employment to the date of the cancers’ first diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated June 18, 2004.  
  1. Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the employee’s right and left kidney cancers were “at least as likely as not” (a 50% or greater probability) related to his employment at a covered facility, as required by the EEOICPA.

Therefore, based on a review of the case file evidence, I make the following:

CONCLUSIONS OF LAW

Pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in section 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).  The claimed condition of “chronic lung disease” is not a covered occupational illness under Part B of the EEOICPA.

Pursuant to § 30.211 of the implementing regulations, “a claimant establishes that the employee has or had contracted cancer with medical evidence that sets forth the diagnosis of cancer and the date on which that diagnosis was made.” 20 C.F.R. § 30.211.  Additionally, according to Chapter 2-600.3 (September 2004) of the Federal (EEOICPA) Procedure Manual, sufficient medical evidence must be presented by the claimant in order to substantiate a diagnosis of cancer.  The case record must include medical evidence that lists a cancer diagnosis made by a qualified physician with tissue examinations described in a pathology report being the most conclusive method of diagnosis.  You did not submit sufficient medical evidence to establish that the employee was diagnosed with throat cancer under the EEOICPA.

The FAB independently analyzed the information in the NIOSH report, confirming the 63.16% probability of causation for the employee’s left and right kidney cancers.  I find that the evidence establishes that the employee’s left and right kidney cancers were “at least as likely as not” related to his employment at a covered facility, pursuant to § 7384n(b) of the Act and § 30.210(b) of the EEOICPA regulations.  42 U.S.C. § 7384n(b), 20 C.F.R. § 30.210(b).

On August 30, 2004, the FAB received written notification that you waived any and all objections to the recommended decision.  The undersigned has reviewed the facts and the recommended decision issued by the district office on August 20, 2004 and finds that the employee’s right and left kidney cancers were “at least as likely as not” caused by his employment at a covered facility pursuant to § 7384n(b) of the Act, that he was a covered employee with cancer pursuant to § 7384l(9)(B)(i) of the Act, that you are the only eligible survivor of the covered employee pursuant to § 7384s(e)(2)(3)(A) of Act and that you are entitled to the sum of $150,000 pursuant to §§ 7384s(a), 7384s(e)(A) of the Act.  42 U.S.C. §§ 7384n(b), 7384l(9)(B)(i), 7384s(a), 7384s(e)(A)(2)(3)(A).

Washington, DC

Richard Koretz

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Savannah River Site (SRS) in Aiken, SC is a covered DOE facility from 1950 to the present.

[2] NIOSH originally submitted a “NIOSH Report of Dose Reconstruction” to the district office on March 31, 2004.  However, after further review of the evidence and consultation with the EEOICPA senior health physicist, the district office determined that a re-work of the dose reconstruction was necessary in that the employee’s claimed throat cancer was erroneously included in the NIOSH dose reconstruction and that one of the employee’s two primary kidney cancers was erroneously omitted from the NIOSH dose reconstruction.  Therefore, on May 17, 2004 the district office submitted an amended application to NIOSH for dose reconstruction.          

EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under § 7384 of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for compensation under 42 U.S.C. § 7384. 

STATEMENT OF THE CASE

On August 30, 2001, the employee’s surviving spouse filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on lymphoma and peripheral bronchogenic carcinoma, and on July 24, 2003, she passed away, and her claim was administratively closed.  On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed Forms EE-2 under the EEOICPA, based on bronchogenic carcinoma and lymphoma. 

The record includes a Form EE-3 (Employment History Affidavit) that indicates the worker was employed by Reynolds Electrical and Engineering Company (REECo) at the Nevada Test Site (NTS) intermittently from 1957 to 1978, and that he wore a dosimetry badge.  A representative of the Department of Energy confirmed the employee was employed at NTS by REECo intermittently from August 23, 1958 to February 4, 1978. 

Medical documentation received included a copy of a Nevada Central Cancer Registry report that indicated an aspiration biopsy was performed on February 1, 1978, and it showed the employee was diagnosed with primary lung cancer.  A Valley Hospital discharge summary, dated February 4, 1978, indicated the employee had a tumor in the right upper lobe of the lung.  The record does not contain documentation demonstrating the employee was diagnosed with lymphoma. 

To determine the probability of whether the employee sustained the cancer in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction dated April 20, 2005.  See 42 U.S.C. § 7384n(d).  NIOSH noted the employee had worked at NTS intermittently from August 23, 1958 to February 4, 1978.  However, in order to expedite the claim, only the employment from 1966 through 1970 was assessed.  NIOSH determined that the employee’s dose as reconstructed under the EEOICPA was 71.371 rem to the lung, and the dose was calculated only for this organ because of the specific type of cancer associated with the claim.  NIOSH also determined that in accordance with the provisions of 42 C.F.R. § 82.10(k)(1), calculation of internal dose alone was of sufficient magnitude to consider the dose reconstruction complete.  Further, NIOSH indicated, the calculated internal dose reported is an “underestimate” of the employee’s total occupational radiation dose.  See NIOSH Report of Dose Reconstruction, pp. 4, 5, 6, and 7. 

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer, and reported in its recommended decision that the probability the employee’s lung cancer was caused by his exposure to radiation while employed at NTS was at least 50%. 

You provided copies of the death certificates of the employee and his spouse, copies of your birth certificates showing you are the natural children of the employee, and documentation verifying your changes of names, as appropriate. 

The record shows that you ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4]) and [Claimant #5] filed claims with the Department of Justice (DOJ) for compensation under the Radiation Exposure Compensation Act (RECA).  By letter dated May 20, 2005, a representative of the DOJ reported that an award under § 4 of the RECA was approved for you; however, the award was rejected by [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]

On June 14, 2005, the Seattle district office recommended acceptance of your claims for survivor compensation for the condition of lung cancer, and denial of your claims based on lymphoma. 

On June 12 ([Claimant #1] and June 20 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision. 

FINDINGS OF FACT

  1. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed claims for survivor benefits. 

  1. Documentation of record shows that the employee and his surviving spouse have passed away, you ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) are the children of the employee, and you are his survivors. 

  1. You ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) have rejected an award of compensation under the Radiation Exposure Compensation Act. 

  1. The worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 4, 1978. 

  1. The employee was diagnosed with lung cancer on February 1, 1978. 

  1. The NIOSH Interactive RadioEpidemiological Program indicated at least a 50% probability that the employee’s cancer was caused by radiation exposure at NTS. 

  1. The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility. 

CONCLUSIONS OF LAW

The evidence of record indicates that the worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 6, 1978.  Medical documentation provided indicated the employee was diagnosed with lung cancer on February 1, 1978; however, there is no evidence showing the employee was diagnosed with lymphoma, and your claims based on lymphoma must be denied. 

After establishing that a partial dose reconstruction provided sufficient information to produce a probability of causation of 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction, and the dose reconstruction was considered complete.  See 42 C.F.R. § 82.10(k)(1). 

The Final Adjudication Branch analyzed the information in the NIOSH Report of Dose Reconstruction and utilized the NIOSH-IREP to confirm the 63.34% probability that the employee’s cancer was caused by his employment at NTS.  See 42 C.F.R. § 81.20. (Use of NIOSH-IREP).  Thus, the evidence shows that the employee’s cancer was at least as likely as not related to his employment at NTS. 

The Final Adjudication Branch notes that, in its Conclusions of Law, the recommended decision erroneously indicates the employee, [Employee], is entitled to compensation in the amount of $150,000.00; therefore, that Conclusion of Law must be vacated as the employee is deceased.  See 42 U.S.C. § 7384s(a)(1). 

The Final Adjudication Branch notes that the record shows the employee passed away on February 4, 1978.  However, his employment history indicates he worked at NTS until February 6, 1978.  Consequently, for purposes of administration of the Act, his employment is considered to have ended on February 4, 1978. 

Based on the employee’s covered employment at NTS, the medical documentation showing his diagnosis of lung cancer, and the determination that the employee’s lung cancer was “at least as likely as not” related to his occupational exposure at NTS, and thus sustained in the performance of duty, the employee is a “covered employee with cancer,” under 42 U.S.C. § 7384l.  See 42 U.S.C. § 7384l(9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2.  Further, as the record indicates there is one other potential beneficiary under the EEOICPA, you are each ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) entitled to survivor compensation under 42 U.S.C. § 7384 in the amount of $30,000.00.  As there is evidence that another survivor is a child of the employee, and potentially an eligible survivor under the Act, the potential share ($30,000.00) of the compensation must remain in the EEOICPA Fund.  See Federal (EEOICPA) Procedure Manual, Chapter 2-200.7c(2) (June 2004). 

Seattle, WA

_____________________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 51475-2004 (Dep’t of Labor, August 20, 2004)

REVIEW OF THE WRITTEN RECORD AND NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On November 19, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under EEOICPA) and indicated that the employee was diagnosed with brain, rib cage, heart, and lung cancer.  Medical documentation submitted in support of the claim showed that the employee was diagnosed as having cancer with an unknown primary cancer site on April 30, 1981.  In addition, the employee’s death certificate indicated that he was diagnosed as having metastatic adenocarcinoma of the lung eight years before the date of death, May 23, 1989. 

You also filed a Form EE-3 (Employment History) and indicated that the employee worked, from 1983 to 1987, at the Lawrence Berkeley National Laboratory (LBNL).  In correspondence dated April 5, 2004, a representative of the Department of Energy (DOE) reported that the employee was employed at LBNL from February 1, 1983 to March 31, 1988.  The LBNL is recognized as a covered DOE facility from 1939 to the present.  See DOE, Office of Worker Advocacy, Facility List. 

By letter dated April 22, 2004, the Seattle district office notified you that the medical documentation provided indicated that the onset of the employee’s cancer occurred twenty-two months prior to the time he began employment at LBNL.  Further, the district office requested that you submit any additional evidence of either the employee’s cancer or his employment history, within fourteen days of the date of the letter, in order for the district office to determine if the employee was diagnosed as having a covered condition with a diagnosis date subsequent to the first date he began his employment at LBNL.  You submitted no additional evidence to show that the employee was diagnosed as having cancer on a date subsequent to his first date of employment at LBNL.  

On June 10, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office found that the date of diagnosis of the employee’s illness preceded the initial date of his employment at LBNL, and concluded that the employee therefore did not qualify as a covered employee with cancer as defined in § 7384l(9).  See 42 U.S.C. § 7384l (9).  The district office also concluded that you are not entitled to compensation under § 7384s(e)(1).  See 42 U.S.C. § 7384s(e)(1).

The Final Adjudication Branch received your letter of objection to the recommended decision and additional medical documentation on June 16, 2004.  You wrote that you had recently found the enclosed “medical letters from the doctors caring for [Employee] at the time of retirement.”  You stated that the employee worked at UC Berkeley, in the “Groonosh Building,” from about 1960 to 1973, and that there were “unvented pipes on some of the labs he worked at.”  The additional medical documentation you provided included a copy of a letter from Robert J. Stallone, M.D., dated September 25, 1987, and indicated that the employee was under the doctor’s care “since April, 1981 and underwent surgery for carcinoma of the lung in May, 1981.”  The letter continued, “The patient now has developed metastatic adenocarcinoma of the pericardium and is totally incapacitated from any type of employment.”  Another letter you submitted is from Mervyn A. Sahud, M.D., and dated September 28, 1987.  Doctor Sahud wrote that the employee “is a 50-year-old electrician who has been treated for adenocarcinoma, lung primary, since April 1981, when he first underwent a left upper lobe resection followed by radiation therapy and chemotherapy.  He had a relapse in May 1985 with pericardial tamponade and underwent a partial pericardiectomy followed by chemotherapy.”  You also submitted various insurance disability forms.  The documentation submitted on June 16, 2004 showed that the employee was diagnosed with cancer in 1981, prior to the initial date of his employment at LBNL, and that he had a “relapse,” or recurrence, of the same cancer in 1985 and metastatic adenocarcinoma of the pericardium in 1987. 

FINDINGS OF FACT

  1. You filed a claim for survivor benefits under the EEOICPA on November 19, 2003.
  2. The employee worked at LBNL, a covered DOE facility, from February 1, 1983 to March 31, 1988. 
  3. The employee was diagnosed with cancer on April 30, 1981, a date prior to his initial date of employment at LBNL.

CONCLUSIONS OF LAW

The regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law in the recommended decision.  20 C.F.R. § 30.312.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record, in the absence of a request for a hearing.  20 C.F.R. § 30.312.  The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  20 C.F.R. § 30.313.  The Final Adjudication Branch will consider all of the evidence of record in reviewing the claim, including evidence and argument included with the objection(s). 

The undersigned has reviewed the Recommended Decision issued by the Seattle district office on June 10, 2004 as well as your written objections and the additional medical documentation submitted on June 16, 2004.  In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, the covered employees (or their eligible survivors), must establish that they have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation: cancer, beryllium sensitivity, chronic beryllium disease, and/or chronic silicosisSee 42 U.S.C. § 7384l (15), 20 C.F.R. § 30.110(a).  Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility.  See 42 U.S.C. § 7384l (4)-(7), (9), (11). 

You filed a claim based on cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  The evidence shows that the employee was diagnosed as having cancer with an unknown primary on April 30, 1981, a recurrence of cancer in 1985, and metastatic cancer in 1987.  In order to be afforded coverage under § 7384l (9) of the EEOICPA based on a “covered employee with cancer,” the claimant must show the employee contracted that cancer after beginning employment at a Department of Energy or atomic weapons facility.  See 42 U.S.C. § 7384l(9)(B). 

The evidence indicates that the employee was diagnosed with adenocarcinoma of the lung on April 30, 1981, prior to covered employment.  In May 1985, the employee had a “relapse” of the cancer, which is a reoccurrence of a previously diagnosed cancer.  The relapse of cancer, within a covered period of employment, would not qualify as a primary cancer under the EEOICPA, since the initial diagnosis of the primary cancer was prior to the start of verified employment.  See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b). 

The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a). 

The evidence of record is insufficient to establish that the worker contracted cancer after beginning employment at a covered DOE facility.  Thus, although you submitted medical documentation showing a diagnosis of cancer, the employee did not contract that cancer after beginning employment at a Department of Energy facility.  See 42 U.S.C. § 7384l(9).  Therefore, your claim must be denied for lack of proof that the employee was a “covered employee with cancer” under the EEOICPA. 

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Seattle, WA

_______________________________________

James T. Carender

Hearing Representative, Final Adjudication Branch

EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On March 22, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of prostate cancer, emphysema and possible lung cancer.  You also provided a Form EE-3 (Employment History), on which you indicated that you worked at the Weldon Spring Plant from 1956 to 1967, and that you wore a dosimetry badge.

Information obtained from a Department of Energy (DOE) representative and the Oak Ridge Institute for Science and Education database indicated that you worked as a contractor employee at the Weldon Spring Plant from July 17, 1956 to June 30, 1966.  The Weldon Spring Plant is recognized as a covered DOE facility from 1957 to 1967 and 1985 to the present (for remediation).  See Department of Energy, Office of Worker Advocacy, Facility List.

By letters dated March 31, May 5, and June 14, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but additional medical evidence was needed in order to establish a claim.  You were requested to provide documentation of a covered occupational illness, specifically, cancer.

You provided medical documentation which indicated that you received treatment for conditions including hypertension, diabetes mellitus, bronchitis and emphysema.  In addition, a hospital discharge summary report from a hospital stay from April 15 to April 16, 1993, indicated that you were admitted to the hospital for a medical procedure following a radical prostatectomy, which was performed “in order to allow the patient to be treated for his cancer of the prostate.”  The date of diagnosis of prostate cancer was not noted.

The record also includes several telephone messages, which indicate that you, with the assistance of your authorized representative, have been trying to obtain the medical records pertaining to your diagnosis of prostate cancer and the date of diagnosis, but that you have not yet received the medical records.

On July 16, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that you did not provide sufficient evidence as proof that you were diagnosed with a covered occupational illness as defined by § 7384l(15) of the Act.  See 42 U.S.C. § 7384l(15).  The district office further concluded that you were not entitled to compensation as outlined under § 7384s of the Act.  See 42 U.S.C. § 7384s.

FINDINGS OF FACT

1.      You filed a claim for employee benefits on March 22, 2004.

2.      You worked at the Weldon Spring Plant, a covered Department of Energy facility, from July 17, 1956 to June 30, 1966.

3.      You did not submit sufficient medical evidence establishing a date of diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on July 16, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations and that the sixty-day period for filing such objections, as provided for in section 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the EEOICPA, you must establish that you were diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).

You filed a claim based on the condition of emphysema, which is not a compensable illness under Part B of the Act.  You also filed a claim based on prostate cancer and possible lung cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C. F. R. § 30.211. 

The record in this case shows that by letters dated March 31, May 5, and June 14, 2004, you were requested to provide the required information to prove a medical condition.  While a hospital discharge report dated April 16, 1993, contains a reference to your treatment for prostate cancer, the evidence of record does not contain a date of diagnosis of this cancer.  Without the date of prostate cancer diagnosis, it is not possible to determine if this cancer was related to your employment at the Weldon Spring Plant.  In regard to you claim for possible lung cancer, the medical documentation of record does not indicate a diagnosis of lung cancer. 

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by the preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in section 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

The record in this case shows that you did not provide sufficient medical documentation of a covered occupational illness under the Act.  Therefore, your claim must be denied.

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied. 

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 57599-2005 (Dep’t of Labor, January 4, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under Part B of 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.

STATEMENT OF THE CASE

On May 17, 2004, [Claimant 1] and [Claimant 2] each filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  Your claims were based, in part, on the assertion that your father was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Forms EE-2 that you were filing for the employee’s acute myelomonocytic leukemia (AML).  The evidence shows that all medical records have been destroyed; therefore, per office procedure, the employee’s death certificate is sufficient to establish that he was diagnosed with AML.

On the Form EE-3, Employment History, you stated the employee was employed by A. S. Shulman Electric, a subcontractor of C. P. Schwartz, at the gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of June 1951 to 1955.  Department of Energy records, Social Security records, and employment affidavits confirm employment by C. P. Schwartz and F. H. McGraw from at least October 1, 1952 to December 31, 1953. 

On November 17, 2004, the Jacksonville district office issued a decision recommending that you, as eligible survivors of the employee, are entitled to compensation in the amount of $75,000 each, for the employee’s AML.  You each submitted written notification that you waive any and all objections to the recommended decision. 

In order for the employee to qualify as a member of the Special Exposure Cohort (SEC) under § 7384l(14)(A) of the Act, the following requirements must be satisfied:

(A)     The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – –

(i)                  was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii)                worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.  42 U.S.C. § 7384l(14)(A).

Department of Energy records, Social Security records, and employment affidavits confirm employment for at least 250 days from at least October 1, 1952 to December 31, 1953 at the Paducah GDP.  You indicated on the Form EE-3 (Employment History) that you did not know whether your father wore a dosimetry badge.  According to the Department of Energy sponsored report entitled Exposure Assessment Project at Paducah Gaseous Diffusion Plant, released in December 2000, Section 4.2.1.1 External Dosimeters states:   “Prior to 1961, select groups of employees considered to have the potential for radiation exposures were issued film badges.  After [July 1] 1960, all employees were issued two combination security/film badges.”  Because the period of your father’s employment fell within the time that some or all employees at the Paducah GDP were issued dosimetry badges, I find that the employee’s employment at the Paducah GDP satisfies the requirements under § 7384l(14)(A) of the Act.  42 U.S.C. §7384l(14)(A).

FINDINGS OF FACT

1.  On May 17, 2004, [Claimant 1] and [Claimant 2] each filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  

2.  The evidence is sufficient to establish that the employee was diagnosed with acute myelomonocytic leukemia (AML).

3.  Acute myelomonocytic leukemia (AML) is a specified cancer under Part B of the Act and the implementing regulations.  42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(1).

4.  The employee was employed at the gaseous diffusion plant in Paducah, Kentucky for the period of at least October 1, 1952 to December 31, 1953.  The employee is a covered employee as defined in the Act.  42 U.S.C. § 7384l(1).

5.  The employee is a member of the Special Exposure Cohort, as defined in the Act.  42 U.S.C. § 7384l(14)(A).

6.  In proof of survivorship, you submitted birth certificates, documentation of name changes, and the death certificates of the employee and his spouse.   Therefore, you have established that you are survivors as defined by the implementing regulations.  20 C.F.R. § 30.5(ee).

7.  The district office issued the recommended decision on November 17, 2004.

8.  You each submitted written notification that you waive any and all objections to the recommended decision. 

CONCLUSIONS OF LAW

I have reviewed the record on this claim and the recommended decision issued by the district office on November 17, 2004.  I find that the employee is a member of the Special Exposure Cohort, as that term is defined in the Act, and that the employee’s acute myelomonocytic leukemia (AML) is a specified cancer under Part B of the Act and the implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A); 20 C.F.R. § 30.5(dd)(1).

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are each entitled to one-half of the maximum $150,000 award, in the amount of $75,000 each, pursuant to Part B of the EEOICPA.  42 U.S.C. §§ 7384s(a), 7384s(e)(1)(B). 

Jacksonville, FL

Mark Stewart

Hearing Representative

EEOICPA Fin. Dec. No. 63258-2005 (Dep’t of Labor, March 11, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under Part B of 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 claim for benefits is accepted. 

STATEMENT OF THE CASE

On November 9, 2004, you filed a claim for survivor benefits under Part B of the EEOICPA, Form EE-2, wherein you indicated that your late husband, [Employee] (hereinafter referred to as the employee), suffered from a “Brain tumor-Oligodendroglioma” (brain cancer) and worked prior to January 1, 1974 on Amchitka Island.[1] On the EE-3 form (Employment History), you indicated that the employee was employed by the U.S. Geological Survey (USGS) from October 10, 1960 until February 13, 1980 and that the employee was involved in geological studies and the mapping of Amchitka Island.  You submitted the employee’s death certificate and your marriage certificate in support of your claim as the employee’s eligible surviving beneficiary.

You submitted an October 11, 2004 letter from AMC Cancer Research Center, and an October 12, 2004 letter from Exempla Lutheran Medical Center, which indicated that the employee’s medical records had been destroyed.  You also submitted the employee’s physician-signed death certificate, which indicated that the employee died on April 30, 1982 from “Brain tumor- Oligodendroglioma” at the AMC Cancer Research Center and that 6 years and 2 months was the interval between the onset of the disease and the employee’s death.  The district office concluded that the employee’s death certificate was sufficient to establish that the employee was diagnosed with brain cancer on March 2, 1976.   

The district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify the employment claimed, but no records were found.  The Department of Energy (DOE) was also not able to verify the employment claimed.  In response to the district office’s request for employment evidence, you submitted various employment documents.  As part of the documentation that you submitted were the following:

1)      A technical letter prepared by the USGS for the U.S. Atomic Energy Commission (AEC) entitled, “Amchitka-3 Geologic Reconnaissance of Amchitka Island, December 1966,” which indicated that the employee and W. J. Carr were part of a reconnaissance team that was on Amchitka Island between November 30 and December 16, 1966 for the purpose of selecting drilling sites.

2)      A USGS professional paper prepared on behalf of the AEC entitled, “Interpretation of Aeromagnetic Survey of Amchitka Island Area, Alaska,” which indicated that the employee and W. J. Carr were involved in reconnaissance mapping on Amchitka in 1966 and 1967.

3)      A January 10, 1967 letter of appreciation from the AEC to the USGS, which indicated that the employee was part of a reconnaissance team on Amchitka Island.   

4)      An employment history affidavit, Form EE-4, from [Co-Worker #1] and [Co-Worker #2], in which they attested that they were the employee’s co-workers at the USGS during 1960’s and 1970’s.

5)      Entries from the employee’s field notebook, dated between November 29 and December 17, 1966 and April 28 to May 3, 1967, relative to his work on Amchitka Island.

According to Appendix A-7 of the Atomic Energy’s Manager’s Completion Report, dated January, 1973, the USGS was designated an Amchitka prime contractor.  Therefore, the district office concluded that the USGS was a DOE contractor, in accordance with EEOICPA Bulletin No. 03-26 (issued June 3, 2003).  Altogether, the district office concluded that the aforementioned employment evidence was sufficient to establish that the employee was a DOE contractor employee on Amchitka Island from November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.

On February 8, 2005, the district office issued a recommended decision, which concluded that the employee was a member of the special exposure cohort (SEC), that he suffered from brain cancer and that you are entitled to $150,000 dollars in survivor’s compensation under Part B of the Act.

On February 15, 2005, the FAB received your written notification that you waived any and all objections to the recommended decision.  Therefore, based upon a review of the case file evidence, the undersigned makes the following:

FINDINGS OF FACT

1)     You filed a claim for survivor benefits under Part B of the EEOICPA on November 9, 2004.

2)      You established that the employee was employed by a DOE contractor on Amchitka Island from November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.  

3)      You established that the employee was diagnosed with brain cancer on March 2, 1976.              

4)      The district office issued a recommended decision on February 8, 2005, which concluded that you are entitled to $150,000 dollars in survivor’s compensation.

Therefore, based upon a review of the case file evidence, the undersigned makes the following:

CONCLUSIONS OF LAW

Pursuant to § 7384l(14)(B) of the Act, a member of the SEC is defined as an employee that was “employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.” 42 U.S.C. § 7384l(14)(B).  The evidence of record established that the employee was employed by a DOE contractor on Amchitka Island during a covered time period: November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.  Therefore, the undersigned finds that the employee was a member of the SEC pursuant to § 7384l(14)(B) of the Act.

Pursuant to § 30.5(dd) of the implementing regulations, brain cancer is considered a specified cancer provided that its onset occurred at least five years after the employee’s first exposure to radiation.  20 C.F.R. § 30.5(dd).  Additionally, pursuant to § 7384l(9)(A) of the Act, a covered employee with cancer is “an individual with a specified cancer who is a member of the Special Exposure Cohort, if and only if that individual contracted that specified cancer after beginning employment at a Department of Energy facility (in the case of a Department of Energy employee or Department of Energy contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee).” 42 U.S.C. § 7384l(9)(A).  The evidence of record established that as a member of the SEC the employee was diagnosed with brain cancer more than five years after he began his covered employment on Amchitka Island.  Therefore, the undersigned finds that the employee was a covered employee with cancer, pursuant to § 7384l(9)(A) of the Act.

The undersigned has reviewed the facts and the district office’s February 8, 2005 recommended decision and finds that you are entitled to $150,000 dollars in compensation for the employee’s brain cancer, pursuant to § 7384s(a),(e)(1)(A) of the Act. 

Washington, DC

Mark D. Langowski

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Amchitka Island Test Site on Amchitka Island, AK is a covered DOE facility from 1965 to 1972 and from 1995 to the present. 

Part E cancer claims

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. 

Probability of causation

EEOICPA Fin. Dec. No. 10522-2004 (Dep’t of Labor, November 14, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for compensation under the Act.

STATEMENT OF THE CASE

On September 24, 2001, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on skin cancer.  A representative of the Department of Energy (DOE) verified that you engaged in covered employment at the Hanford site for General Electric from December 5, 1955 to November 8, 1957 and for J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.  The Hanford site is recognized as a covered DOE facility from 1942 to the present.  See Department of Energy Worker Advocacy Facility List.

You provided a medical record summary from David L. Adams, M.D., of Tri-City Derm Management, Inc., that indicates you had surgical excisions diagnosed as basal cell carcinoma on the following twelve dates: December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face). 

You submitted four operative reports related to your cancers as follows: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4th layer shows cancer still present.”).  Also, you submitted five pathology reports related to your cancer as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin).  Further, you submitted a pathology report dated January 5, 1996 that diagnosed seborrheic keratosis, a non-covered condition.  You also submitted chart notes dated February 28, 1996 that indicate “a large recurrent basal cell carcinoma on the right preauricular lateral cheek area,” and “Right lateral cheek, preauricular skin.”  Consequently, the medical evidence includes a medical record summary, operative reports and pathology reports showing your diagnoses of skin cancer.

To determine the probability of whether you sustained these cancers in the performance of duty, the Seattle district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction on October 22, 2003.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82, § 82.26 (NIOSH report of dose reconstruction results).  In its report, NIOSH indicated, in its “Dose Reconstruction Overview,” that it performed radiation dose reconstructions on only four of your basal cell carcinomas that were diagnosed as follows: February 28, 1996 (left cheek); March 9, 1995 (auricular skin); March 9, 1995 (right side of the face); and March 17, 1982 (right sideburn area of the face). 

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your cancer and reported in its Recommended Decision that there was a 52.35% probability that your basal cell carcinoma of the skin was caused by radiation exposure at the INEEL site.  The district office continued, in its recommended decision, that “Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at a DOE covered facility) was calculated for the four primary cancers.”

On November 3, 2003, the Seattle district office recommended acceptance of your claim for compensation, and on November 7, 2003, the Seattle Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision. 

FINDINGS OF FACT

1.      You filed a claim for employee benefits on September 24, 2001.

2.      You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

3.      You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B).

4.      You were diagnosed with multiple skin cancers.

5.      Your cancer diagnoses were made after you began employment with the Department of Energy.

6.      The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.

7.      The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.

8.      The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81.  The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81.  See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E. 

9.      After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation.  Additional calculations of probability of causation were not required to be determined.  See 42 C.F.R. § 82.10(k). 

CONCLUSIONS OF LAW

The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. 

The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face).  Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4th layer shows cancer still present.”).  You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin). 

Based on your covered employment at the Hanford site and the medical documentation showing diagnoses of multiple skin cancers, you are a “covered employee with cancer” under the EEOICPA.  See 42 U.S.C. § 7384l(9)(B)(i). 

The undersigned notes that there is no indication in the case file of diagnosis of an auricular skin cancer, on March 9, 1995, as indicated in the NIOSH Report of Dose Reconstruction.  But, there is a diagnosis of a right pre-auricular basal cell carcinoma on December 21, 1995 as well as a reference to a basal cell carcinoma on the “right preauricular lateral cheek area” in the chart notes dated February 28, 1996.  It is also noted that the IREP probability of causation results show that the auricular primary cancer was diagnosed in 1995, and that no month or day was used in the computer calculation of the results.  Consequently, any discrepancy in the date of diagnosis of pre-auricular basal cell carcinoma in 1995 would not affect the outcome of this case.

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. 

Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site.  See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims involving two or more primary cancers).  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability.  Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

You are a “covered employee with cancer,” which is defined in § 7384l(9)(B)(i) and (ii) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B)(i) and (ii).  Pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the NIOSH implementing regulations, your cancer was at least as likely as not related to your employment at the Hanford site.  See 42 C.F.R. §§ 81.20, 81.21, 81.22, and 81.25. 

The record indicates that you filed Form EE-1, Claim for Employee Benefits under the EEOICPA, on September 24, 2001.  The date you filed your claim is the date you became eligible for medical benefits for cancer.  See 42 U.S.C. § 7384t(d). 

Pursuant to Bulletin 03-24, if all primary cancers claimed have not gone through dose reconstruction when the 50% threshold has been reached, NIOSH will not complete dose reconstruction for the rest of the cancers.  The calculation of additional POCs for the remaining primary cancers, which were not calculated, would only make the final numerical value of the POC larger, and all of the cancers, including those for which NIOSH did not perform a dose calculation, are covered for medical benefits.  Consequently, you are entitled to compensation and medical benefits for skin cancer retroactive to September 24, 2001.  See EEOICPA Bulletin No. 03-24 (issued May 2, 2003).

For the foregoing reasons, the undersigned hereby accepts your claim for skin cancer.  You are entitled to compensation in the amount of $150,000 pursuant to § 7384s(a) of the Act.  You are also entitled to medical benefits related to skin cancer, since September 24, 2001.   See 42 U.S.C. § § 7384s, 7384t.

Seattle, WA

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle

EEOICPA Fin. Dec. No. 12659-2004 (Dep’t of Labor, November 6, 2003)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning the claim of [Claimant] 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 discussed below, compensation based on lung cancer is granted.

STATEMENT OF THE CASE

On October 2, 2003, the Cleveland district office issued a recommended decision finding that [Employee]‘s lung cancer was at least as likely as not related to his employment at a Department of Energy (DOE) facility, within the meaning of 42 U.S.C. § 7384n; that the employee is a “covered employee with cancer”, as that term is defined in 42 U.S.C. § 7384l(9)(B); and concluding that the claimant, as the survivor of the employee, is entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s.

The evidence shows that the employee worked in decontamination/housekeeping maintenance at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978.  Additional evidence shows that he was on active military service from September 4, 1952, to August 20, 1954.  In order to be eligible for benefits based on the employee’s cancer, the evidence must establish that the cancer was at least as likely as not related to his employment at a DOE facility.

To determine the probability of whether the employee sustained lung cancer in the performance of duty, the district office referred the claimant’s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115 of the Department of Labor’s implementing regulations.  NIOSH performed the dose reconstruction by calculating the annual radiation dosage during recorded radiation intake periods.  Because the potential intake on December 27, 1960, occurred near the end of that year, all dose for that intake was assigned to 1961.  On August 18, 2003, the claimant signed Form OCAS-1, indicating that she had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information she had provided to NIOSH.

Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was an 83.73% probability that the employee’s lung cancer was caused by radiation exposure at Monsanto Chemical Company (Mound Plant).

In making this determination, the district office used the parameter for smoking history of “10-19 cigarettes per day”.  This parameter was used because the smoking history questionnaire that the claimant submitted was marked in the blocks corresponding to “Current Cigarette Smoker” and “10-19 cigarettes per day.”  A consultation report from Miami Valley Hospital, dated June 24, 1978, notes that the employee provided a history that he is a “heavy smoker – 2 ppd x 30 years.”

Based on that report, the Final Adjudication Branch independently analyzed the information in the NIOSH report, and re-determined the probability of causation using a smoking history parameter of “>40 cig/day (currently)”.  That history was considered to be the most reliable estimate of the employee’s smoking history.  The re-analysis resulted in an 82.44% probability that the employee’s lung cancer was sustained in the performance of duty.

On October 8, 2003, the Final Adjudication Branch received written notification that the claimant waives any and all objections to the recommended decision.

FINDINGS OF FACT

  1. The claimant filed an application for benefits on October 15, 2001, under the EEOICPA based on the employee’s lung cancer.
  1. The employee worked at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978.  Monsanto Chemical Company (Mound Plant) is identified as a DOE facility from 1947 to the present.
  1. The employee was diagnosed with lung cancer in June 1978.
  1. NIOSH reported annual dose estimates for lung cancer during recorded radiation intake periods.  A summary and explanation of information and methods applied to produce these dose estimates, including the claimant’s involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”
  1. Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer.  The district office determined that lung cancer was estimated to have a greater than 50% probability that it is related to employment at the covered facility.
  1. The claimant is the surviving spouse of the employee and was married to him for at least one year immediately before his death.

CONCLUSIONS OF LAW

I have reviewed the facts and the recommended decision issued by the district office, and find that the employee’s lung cancer was at least as likely as not sustained in the performance of duty at a DOE facility as specified by 42 U.S.C. § 7384n.  The employee is a “covered employee with cancer”, as that term is defined by 42 U.S.C. § 7384l(9)(B).  The claimant is the surviving spouse of the employee as defined by 42 U.S.C. § 7384s(e)(1).  I find that the recommended decision is in accordance with the facts and the law in this case, and that the claimant is entitled to $150,000 based on the employee’s lung cancer, as provided by 42 U.S.C. § 7384s.

Cleveland, OH

Daria Rusyn

Final Adjudication

Branch Manager

EEOICPA Fin. Dec. No. 21570-2005 (Dep’t of Labor, May 26, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of 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 stated below, your claim for benefits is denied.  A copy of this decision will be provided to your authorized representative.  Adjudication of your Part E claim is deferred until after issuance of the Interim Final Regulations.

STATEMENT OF THE CASE

On January 8, 2002, you filed Form EE-2, Claim for Survivor Benefits under EEOICPA, with the Jacksonville district office.  The claim was based, in part, on the assertion that your late spouse was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-2 that you were filing for the breast cancer of [Employee] (hereinafter called the employee).

On the Form EE-3, Employment History, you stated that the employee was employed at the Savannah River Site (SRS) in Aiken, South Carolina, from 1951 to December 31, 1984.  The Department of Energy verified employment as August 20, 1951 to December 31, 1984.

You submitted medical evidence establishing that the employee was diagnosed with left breast cancer on September 10, 1985.  In order for you to be eligible for benefits, the evidence must establish that the cancer was at least as likely as not related to employment at a covered facility, within the meaning of Part B of the Act.  42 U.S.C. § 7384n.

To determine the probability of whether the employee sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the Department of Labor’s implementing regulations.  20 C.F.R. § 30.115.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On October 9, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on October 15, 2004.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 36% probability that the employee’s cancer was caused by radiation exposure at the Savannah River Site.  42 C.F.R. § 81.20.  The Final Adjudication Branch (FAB) independently analyzed the information in the NIOSH report, confirming the 36% probability.

On December 17, 2004, the Denver district office issued a recommended decision concluding that the employee’s breast cancer is not covered under Part B of the Act and that you are not entitled to compensation.  Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  That 60-day period expired on February 15, 2005.

OBJECTIONS

On January 31, 2005, the Final Adjudication Branch received a letter from your authorized representative, dated January 19, 2005, objecting to the recommended decision and requesting a hearing.  By letter dated February 8, 2005, your authorized representative requested a telephone hearing.  The hearing was held by the undersigned by telephone on March 31, 2005.  You and your authorized representative (your daughter) were duly affirmed to provide truthful testimony.

In the letter of objection, your authorized representative stated that the actual primary site of the cancer was probably unknown, since the cancer had already metastasized by the time the employee went to the doctor; that breast cancer is rare in men and there is no family history, so the likelihood that radiation exposure caused it is more likely; you could not obtain additional records from the oncologist since he is no longer in the area; that the employee worked at SRS for 33 years and was exposed to large amounts of radiation and other harmful elements; and that he began work at SRS before exposure records were kept.

At the hearing, you discussed the employee’s medical and employment histories.  The authorized representative stated that the employee had bumped his chest and noticed a lump and finally went to the doctor when it wouldn’t go away, and that he had had knots throughout his body for some time but never told anyone.  She noted that this could indicate the primary site was not the breast since he didn’t live long enough for the physicians to actually determine the primary site with testing and diagnostics.  She stated that she believed the primary site was the lung, since that was the area the doctors chose to treat. 

In accordance with §§ 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e), 30.314(f).  By letter dated April 8, 2005, the transcript was forwarded to you.  No response, additional evidence, argument, changes or comments were received.

The objections raised before and during the hearing have been reviewed.  Part B of the Act defines that the probability of causation shall be based on the radiation dose received by the employee, and states that cancer must be “at least as likely as not related to employment at the facility specified….”  42 U.S.C. §§ 7384n(b), 7384n(c).  The implementing regulations state that the FAB may evaluate factual findings or arguments concerning the application of dose reconstruction methodology.  20 C.F.R. § 30.318.  However, § 30.318(b) of the implementing regulations states that the methodology used by NIOSH in arriving at reasonable estimates of the radiation doses received by an employee is binding on the FAB. 

In your first objection, you stated that the actual primary site of the employee’s cancer is unknown.  However, as discussed at length during the hearing, the medical records all indicate a breast primary with metastasis to the lymph system and lungs.  The implementing regulations state that the establishment of a cancer diagnosis is based on medical evidence that sets forth the diagnosis of cancer and the date on which that diagnosis was made.  20 C.F.R. § 30.211.  Your belief that the medical evidence of record is incorrect is a challenge of a fact, and is insufficient to override the evidence of record.

Your second objection relates to the rarity of breast cancer in men and the lack of a family history of breast cancer in either sex.  Scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.  If research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation.

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty.  The PoC is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer to the general population.  42 C.F.R. § 81.4(n).  The Department of Labor (DOL) uses NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his individual radiation dose.  The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.  

Complex factors associated with cancer incidence are taken into account in NIOSH-IREP in calculating probability of causation (PoC) at the 99th percentile credibility limit for any given cancer, including breast cancer.  These factors include gender-specific rate differences as well as the gender-specific ratios between U.S. and Japanese incidence rates.  However, PoC depends more on excess risk due to radiation exposure than to gender differences.  In fact, PoC under EEOICPA is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer (BasRisk) plus RadRisk, converted to a percentage.

By definition, a PoC of 50% is obtained whenever radiation exposure doubles the natural baseline incidence of cancer, regardless if the baseline is low or high.  Consequently, similar doses are required for males and females to qualify for compensation for breast cancer because the risk coefficient is similar for males and females.

Male breast cancer rates are indeed quite low compared to females.  Further, this is true in both the U.S. and in Japan.  Thus, as would be expected, the net effect in IREP of these differing gender incidence rates for breast cancer is that the same dose, holding all other IREP inputs constant, produces a higher PoC for males compared to females.  However, gender differences in baseline rates are already taken into account in IREP calculations.  This is a challenge of the PoC portion of the dose reconstruction methodology and cannot be addressed by the FAB per

20 C.F.R. § 30.318(b).

The last objection concerns the accuracy of the dose reconstruction, since the employee began work before exposure records were kept.  The basic principle of dose reconstruction is to characterize the occupational radiation environment to which a worker was exposed using available worker and/or workplace monitoring information.  In cases where radiation exposures in the workplace environment cannot be fully characterized based on available data, default values based on reasonable scientific assumptions are used as substitutes.  The approaches for determining the employee’s external and internal dose are discussed in detail in his dose reconstruction report and are summarized below.

Dosimetry records from the Savannah River Site were used as a starting point in determining the employee’s external dose, including the addition of missed dose (when zeros were reported in his dosimetry records).  Maximizing dose conversion factors were used to convert potential whole body exposure dose to the brain.

The employee participated in the bioassay program, but all of his measurements showed activities less than the level of detection used in the program.  Based on certain bioassay results, internal doses were calculated for tritium.

On-site ambient doses and doses received from diagnostic medical X-ray procedures that were required as a condition of employment were also included in the overall estimate of the dose to the breast. 

For the purposes of the dose reconstruction, NIOSH assigned the employee the highest reasonably possible radiation dose related to radiation exposure and intake using available dosimetry data, when available, and worst-case assumptions in the absence of documented exposures.  The NIOSH approach is based on current science, documented experience and relevant data.  A part of the approach does include checks of dosimetry results against work place exposure indicators.  This is a challenge of the dose reconstruction methodology and cannot be addressed by the FAB per 20 C.F.R. § 30.318(b).

Your concerns about other “harmful elements” the employee may have been exposed to is a challenge of a fact, in this case the EEOICPA Part B requirement of exposure to beryllium or ionizing radiation related to nuclear weapons production.

FINDINGS OF FACT

  1. You filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, on January 8, 2002.
  2. The Department of Energy verified the employment at the SRS as August 20, 1951 to December 31, 1984.
  3. The employee was diagnosed with breast cancer on September 10, 1985.
  4. In proof of survivorship, you submitted copies of your marriage certificate to the employee and the employee’s death certificate.  Therefore, you have established that you are a survivor as defined by the implementing regulations.  20 C.F.R. § 30.5(ee).
  5. Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for breast cancer.  The district office calculated a probability of causation of 36% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility.  The Final Adjudication Branch confirmed this probability of causation calculation.
  6. On December 17, 2004, the Denver district office issued a recommended decision concluding that the employee’s breast cancer is not covered under Part B of the Act, and that you are not entitled to compensation.
  7. A hearing was held on March 31, 2005.  Your objections were reviewed and determined to be challenges to the dose reconstruction methodology or a challenge of fact concerning the coverage of the law.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts, the recommended decision issued by the Denver district office on December 17, 2004, and the information received before and during the hearing.  The evidence in the record does not establish that you are entitled to compensation under Part B of the Act because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s cancer was caused by radiation exposure received at the

Savannah River Site in the performance of duty.  Therefore, I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted. 

Since the evidence does not establish that the employee’s breast cancer was at least as likely as not related to employment at a covered facility, you are not entitled to benefits under Part B of the Act, and the claim for compensation is denied.  42 U.S.C. § 7384s(e).

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 21570-2005 (Dep’t of Labor, May 26, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of 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 stated below, your claim for benefits is denied.  A copy of this decision will be provided to your authorized representative.  Adjudication of your Part E claim is deferred until after issuance of the Interim Final Regulations.

STATEMENT OF THE CASE

On January 8, 2002, you filed Form EE-2, Claim for Survivor Benefits under EEOICPA, with the Jacksonville district office.  The claim was based, in part, on the assertion that your late spouse was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-2 that you were filing for the breast cancer of [Employee] (hereinafter called the employee).

On the Form EE-3, Employment History, you stated that the employee was employed at the Savannah River Site (SRS) in Aiken, South Carolina, from 1951 to December 31, 1984.  The Department of Energy verified employment as August 20, 1951 to December 31, 1984.

You submitted medical evidence establishing that the employee was diagnosed with left breast cancer on September 10, 1985.  In order for you to be eligible for benefits, the evidence must establish that the cancer was at least as likely as not related to employment at a covered facility, within the meaning of Part B of the Act.  42 U.S.C. § 7384n.

To determine the probability of whether the employee sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the Department of Labor’s implementing regulations.  20 C.F.R. § 30.115.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On October 9, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on October 15, 2004.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 36% probability that the employee’s cancer was caused by radiation exposure at the Savannah River Site.  42 C.F.R. § 81.20.  The Final Adjudication Branch (FAB) independently analyzed the information in the NIOSH report, confirming the 36% probability.

On December 17, 2004, the Denver district office issued a recommended decision concluding that the employee’s breast cancer is not covered under Part B of the Act and that you are not entitled to compensation.  Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  That 60-day period expired on February 15, 2005.

OBJECTIONS

On January 31, 2005, the Final Adjudication Branch received a letter from your authorized representative, dated January 19, 2005, objecting to the recommended decision and requesting a hearing.  By letter dated February 8, 2005, your authorized representative requested a telephone hearing.  The hearing was held by the undersigned by telephone on March 31, 2005.  You and your authorized representative (your daughter) were duly affirmed to provide truthful testimony.

In the letter of objection, your authorized representative stated that the actual primary site of the cancer was probably unknown, since the cancer had already metastasized by the time the employee went to the doctor; that breast cancer is rare in men and there is no family history, so the likelihood that radiation exposure caused it is more likely; you could not obtain additional records from the oncologist since he is no longer in the area; that the employee worked at SRS for 33 years and was exposed to large amounts of radiation and other harmful elements; and that he began work at SRS before exposure records were kept.

At the hearing, you discussed the employee’s medical and employment histories.  The authorized representative stated that the employee had bumped his chest and noticed a lump and finally went to the doctor when it wouldn’t go away, and that he had had knots throughout his body for some time but never told anyone.  She noted that this could indicate the primary site was not the breast since he didn’t live long enough for the physicians to actually determine the primary site with testing and diagnostics.  She stated that she believed the primary site was the lung, since that was the area the doctors chose to treat. 

In accordance with §§ 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e), 30.314(f).  By letter dated April 8, 2005, the transcript was forwarded to you.  No response, additional evidence, argument, changes or comments were received.

The objections raised before and during the hearing have been reviewed.  Part B of the Act defines that the probability of causation shall be based on the radiation dose received by the employee, and states that cancer must be “at least as likely as not related to employment at the facility specified….”  42 U.S.C. §§ 7384n(b), 7384n(c).  The implementing regulations state that the FAB may evaluate factual findings or arguments concerning the application of dose reconstruction methodology.  20 C.F.R. § 30.318.  However, § 30.318(b) of the implementing regulations states that the methodology used by NIOSH in arriving at reasonable estimates of the radiation doses received by an employee is binding on the FAB. 

In your first objection, you stated that the actual primary site of the employee’s cancer is unknown.  However, as discussed at length during the hearing, the medical records all indicate a breast primary with metastasis to the lymph system and lungs.  The implementing regulations state that the establishment of a cancer diagnosis is based on medical evidence that sets forth the diagnosis of cancer and the date on which that diagnosis was made.  20 C.F.R. § 30.211.  Your belief that the medical evidence of record is incorrect is a challenge of a fact, and is insufficient to override the evidence of record.

Your second objection relates to the rarity of breast cancer in men and the lack of a family history of breast cancer in either sex.  Scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.  If research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation.

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty.  The PoC is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer to the general population.  42 C.F.R. § 81.4(n).  The Department of Labor (DOL) uses NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his individual radiation dose.  The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.  

Complex factors associated with cancer incidence are taken into account in NIOSH-IREP in calculating probability of causation (PoC) at the 99th percentile credibility limit for any given cancer, including breast cancer.  These factors include gender-specific rate differences as well as the gender-specific ratios between U.S. and Japanese incidence rates.  However, PoC depends more on excess risk due to radiation exposure than to gender differences.  In fact, PoC under EEOICPA is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer (BasRisk) plus RadRisk, converted to a percentage.

By definition, a PoC of 50% is obtained whenever radiation exposure doubles the natural baseline incidence of cancer, regardless if the baseline is low or high.  Consequently, similar doses are required for males and females to qualify for compensation for breast cancer because the risk coefficient is similar for males and females.

Male breast cancer rates are indeed quite low compared to females.  Further, this is true in both the U.S. and in Japan.  Thus, as would be expected, the net effect in IREP of these differing gender incidence rates for breast cancer is that the same dose, holding all other IREP inputs constant, produces a higher PoC for males compared to females.  However, gender differences in baseline rates are already taken into account in IREP calculations.  This is a challenge of the PoC portion of the dose reconstruction methodology and cannot be addressed by the FAB per

20 C.F.R. § 30.318(b).

The last objection concerns the accuracy of the dose reconstruction, since the employee began work before exposure records were kept.  The basic principle of dose reconstruction is to characterize the occupational radiation environment to which a worker was exposed using available worker and/or workplace monitoring information.  In cases where radiation exposures in the workplace environment cannot be fully characterized based on available data, default values based on reasonable scientific assumptions are used as substitutes.  The approaches for determining the employee’s external and internal dose are discussed in detail in his dose reconstruction report and are summarized below.

Dosimetry records from the Savannah River Site were used as a starting point in determining the employee’s external dose, including the addition of missed dose (when zeros were reported in his dosimetry records).  Maximizing dose conversion factors were used to convert potential whole body exposure dose to the brain.

The employee participated in the bioassay program, but all of his measurements showed activities less than the level of detection used in the program.  Based on certain bioassay results, internal doses were calculated for tritium.

On-site ambient doses and doses received from diagnostic medical X-ray procedures that were required as a condition of employment were also included in the overall estimate of the dose to the breast. 

For the purposes of the dose reconstruction, NIOSH assigned the employee the highest reasonably possible radiation dose related to radiation exposure and intake using available dosimetry data, when available, and worst-case assumptions in the absence of documented exposures.  The NIOSH approach is based on current science, documented experience and relevant data.  A part of the approach does include checks of dosimetry results against work place exposure indicators.  This is a challenge of the dose reconstruction methodology and cannot be addressed by the FAB per 20 C.F.R. § 30.318(b).

Your concerns about other “harmful elements” the employee may have been exposed to is a challenge of a fact, in this case the EEOICPA Part B requirement of exposure to beryllium or ionizing radiation related to nuclear weapons production.

FINDINGS OF FACT

  1. You filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, on January 8, 2002.
  2. The Department of Energy verified the employment at the SRS as August 20, 1951 to December 31, 1984.
  3. The employee was diagnosed with breast cancer on September 10, 1985.
  4. In proof of survivorship, you submitted copies of your marriage certificate to the employee and the employee’s death certificate.  Therefore, you have established that you are a survivor as defined by the implementing regulations.  20 C.F.R. § 30.5(ee).
  5. Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for breast cancer.  The district office calculated a probability of causation of 36% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility.  The Final Adjudication Branch confirmed this probability of causation calculation.
  1. On December 17, 2004, the Denver district office issued a recommended decision concluding that the employee’s breast cancer is not covered under Part B of the Act, and that you are not entitled to compensation.
  1. A hearing was held on March 31, 2005.  Your objections were reviewed and determined to be challenges to the dose reconstruction methodology or a challenge of fact concerning the coverage of the law.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts, the recommended decision issued by the Denver district office on December 17, 2004, and the information received before and during the hearing.  The evidence in the record does not establish that you are entitled to compensation under Part B of the Act because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s cancer was caused by radiation exposure received at the

Savannah River Site in the performance of duty.  Therefore, I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted. 

Since the evidence does not establish that the employee’s breast cancer was at least as likely as not related to employment at a covered facility, you are not entitled to benefits under Part B of the Act, and the claim for compensation is denied.  42 U.S.C. § 7384s(e).

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 29552-2006 (Dep’t of Labor, April 5, 2006)

NOTICE OF FINAL DECISION AND REMAND ORDER

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim for compensation and medical benefits under Part B of the Act is accepted for the condition of lung cancer.  Your claim for benefits for the conditions of skin lesions, and loss of sensation in fingertips are denied under Part B of the Act.  Your claim for additional benefits under Part E of the Act is remanded to the district office for further development.

STATEMENT OF THE CASE

On May 10, 2002, you filed a claim for compensation (Form EE-1) under Part B and a request for review by medical panels (OWA1-7/6/01) under Part D of the EEOICPA.  Your claims identified lung cancer, skin lesions, and loss of sensation in fingertips as the claimed conditions resulting from your employment at a Department of Energy (DOE) facility.  You filed an Employment History (Form EE-3) claiming employment as a laborer for roads and grounds at the Paducah Gaseous Diffusion Plant (GDP) from June 1962 to August 1962 and again from June 1963 to August 1963.

The Department of Energy (DOE) verified your employment from June 11, 1962, to August 31, 1962, and again from June 10, 1963, to August 30, 1963.  The Paducah GDP is a covered DOE facility from 1951 to July 28, 1998, and in remediation from July 29, 1998 to the present (See the Department of Energy’s worker’s advocacy facility listings at: http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm; verified by the FAB on April 4, 2006).

On June 3, 2002, the district office sent you a letter acknowledging your claim and advising you that skin lesions and loss of sensation in fingertips were not occupational illnesses under Part B of the Act.  That letter requested medical records to substantiate a covered condition under the Act.

In support of your claim you submitted medical records including a copy of an October 30, 1997 pathology report signed by Moacyr Da Silva, M.D., providing a diagnosis of “small cell neuroendocrine carcinoma of lung intermediate cell type.”

To determine if your cancer was “at least as likely as not” sustained in the performance of your duty at a covered facility, (known as determining the probability of causation or “PoC”), on January 14, 2003, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.

On September 20, 2005, NIOSH completed the dose reconstruction and sent a draft copy of the report to you to review.  On September 30, 2005, NIOSH received your signed Form OCAS-1, indicating that you had received the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you had provided.   On that same date, NIOSH forwarded a copy of the completed dose reconstruction report to the district office. 

Based on the dose estimate, the probability of causation for your cancer was calculated by the district office claims examiner using NIOSH-IREP (Interactive RadioEpidemiological Program).  NIOSH-IREP is a computer software application developed by NIOSH in collaboration with the National Cancer Institute.  This computer software is a science-based tool that allows the DOL to determine the probability that a cancer was caused by a person’s radiation dose.  The district office determined that the probability that your cancer was related to your employment was 53.72%.

On October 28, 2004, the President signed into law an amendment abolishing Part D of EEOICPA and replacing it with a new program called Part E.  The law gave the Department of Labor the responsibility for administering the new program.  As a result, Part D of your claim was developed under the new Part E provisions by the Jacksonville district office.

On February 22, 2006, the Jacksonville district office issued a recommended decision finding in pertinent part that you were a covered DOE employee at the Paducah GDP from June 11, 1962, to August 31, 1962, and again from June 10, 1963 to August 30, 1963; that you were diagnosed with neuroendocrine carcinoma of lung after you began covered employment; that based on the NIOSH dose reconstruction, the probability of causation (PoC) revealed that your cancer was at least as likely as not caused by your employment at a DOE facility.  The decision concluded that you were entitled to $150,000 compensation under Part B as well as medical benefits under Parts B and E of the EEOICPA for your lung cancer effective May 10, 2002.

On March 6, 2006, the FAB received your signed waiver of your right to object to any of the findings of fact or conclusions of law contained in the recommended decision.

On April 4, 2006, you stated that you have not filed a tort suit in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under the EEOICPA and that you have not received any settlement or award from a claim or suit against a third party in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under the EEOICPA. 

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

FINDINGS OF FACT

  1. You filed a claim for benefits under EEOICPA on May 10, 2002.
  1. You are a covered Department of Energy employee who worked at the Paducah Gaseous Diffusion Plant from June 11, 1962, to August 31, 1962, and again from June 10, 1963 to August 30, 1963.
  1. On October 30, 1997, you were diagnosed with small cell neuroendocrine carcinoma of lung intermediate cell type.  This is after you began covered employment.
  1. The district office calculated the probability of causation of your cancer and determined that the probability of causation was 53.72%, and that your cancer was “at least as likely as not” related to your employment at a covered DOE facility.
  1. Skin lesions and loss of sensation in fingertips are not occupational illnesses under Part B of EEOICPA.
  1. You have not filed a tort suit in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under EEOICPA.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the Final Adjudication Branch 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).  You have waived your rights to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision.

The EEOICPA was established to provide compensation benefits to covered employees that have been diagnosed with designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors.  Part B of EEOICPA, defines an occupational illness as a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.  42 U.S.C. §§ 7384l(15), 7384l(9)(B).  As you worked for the Department of Energy at a covered DOE facility when radiation may have been present, you are a covered DOE employee pursuant to 42 U.S.C. §§ 7384l(9)(B) and 7384n(b).

Compensation may be paid to a covered employee which, under 42 U.S.C. § 7384l(1), includes a “covered employee with cancer.”  Since your employment was less than 250 days and you did not qualify for Special Exposure Cohort (SEC) status, a “covered employee with cancer” employed at a DOE facility is eligible for compensation “if and only if, that individual is determined to have sustained that cancer in the performance of duty,” which means “if, and only if,” the cancer was “at least as likely as not” related to employment.  42 U.S.C. §§ 7384l(9)(B) and 7384n.

On April 4, 2006 the FAB calculated the PoC of your lung cancer and determined the PoC was 59.77%.[1]

I have independently reviewed the facts of your case and the recommended decision issued by the Jacksonville district office, and conclude that your lung cancer was “at least as likely as not” sustained in the performance of your duty at a DOE facility as specified by 42 U.S.C. § 7384n (b) of the Act and § 30.210(b) of the EEOICP implementing regulations.  42 U.S.C. § 7384n(b); 20 C.F.R § 30.210(a)(2).  You are therefore a “covered employee with cancer” as that term is defined by Part B, 42 U.S.C. § 7384l(9)(B).  A covered employee shall receive compensation for the disability in the amount of $150,000.  See 42 U.S.C. § 7384s(a). 

A covered employee shall receive medical benefits under the EEOICPA for that employee’s occupational illness.  42 U.S.C. § 7384s(b).  An individual receiving medical benefits for a covered illness is entitled to the services, appliances, and supplies prescribed or recommended by a qualified physician for that illness, which are likely to cure, give relief, or reduce the degree or the period of that illness.  42 U.S.C. § 7384t(a); 20 C.F.R. § 30.400(a).  An individual receiving benefits shall be furnished those benefits as of the date on which that individual submitted the claim for those benefits.  42 U.S.C. § 7384t(d).

Accordingly, you are entitled to compensation in the amount of $150,000 as provided in § 7384s(a) and medical benefits for lung cancer retroactive to the date of your initial filing on May 10, 2002, pursuant to Part B.

Skin lesions and loss of sensation in fingertips are not covered occupational illnesses under Part B of the Act.  Therefore, your claim based skin lesions and loss of sensation in fingertips under Part B of EEOICPA is denied.

Part E of EEOICPA provides additional compensation to Department of Energy contractor employees determined to have contracted a covered illness through exposure at a Department of Energy facilitySee 42 U.S.C. §§ 7385s, 7385s(1) and 20 C.F.R. § 30.5(p).  The evidence of record does not establish that you are a DOE contractor employee of the AEC/DOE, a requirement for eligibility under Part E to qualify for compensation.  42 U.S.C. § 7385s(1).  Additional development of the employment evidence may be required to determine if you worked for a contractor of the DOE.

Pursuant to 20 C.F.R. § 30.317, the portion of the recommended decision pertaining to your claim for benefits under Part E of EEOICPA is vacated and remanded to the Jacksonville district office for further development consistent with this order, to be followed by a new recommended decision on your eligibility under Part E of the Act.

Washington, DC

Edward W. Feeny

Hearing Representative,

Final Adjudication Branch

[1] On September 20, 2005, the district office calculated the probability of causation using NIOSH-IREP, version 5.4.  Effective February 28, 2006, NIOSH implemented NIOSP-IREP version 5.5.  The increased PoC does not change the outcome of your claim, since the result from each version is more than 50%.

EEOICPA Order No. 50245-2004 (Dep’t of Labor, April 14, 2011)

ORDER DENYING REQUEST FOR RECONSIDERATION

This is the response to the claimant’s December 28, 2010 request for reconsideration of the November 30, 2010 decision of the Final Adjudication Branch (FAB) on his survivor claim under both Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  In that decision, FAB concluded that with respect to Part B, the employee’s pancreatic cancer was not sustained “in the performance of duty,” as that term is defined in § 7384n(b), because it is not “at least as likely as not” (a 50% or greater probability) that such cancer was related to the radiation doses she received during her covered employment at a Department of Energy (DOE) facility–Hangar 481, Kirtland Air Force Base (AFB)–from March 1, 1989 through June 30, 1994.  FAB also concluded that with respect to Part E of EEOICPA, the employee was not a “covered DOE contractor employee,” as that term is defined in § 7385s(1), because it is also not at least as likely as not that her exposure to toxic substances at Hangar 481 was a significant factor in aggravating, contributing to, or causing her pancreatic cancer.  It was because of these two conclusions that the claim for survivor benefits due to the employee’s pancreatic cancer under Part B, and for her death due to pancreatic cancer under E, was denied.  A decision on the Part E claim for the employee’s death due to acoustic neuroma, however, was deferred pending further development.

In support of his December 28, 2010 reconsideration request, the claimant raised a number of interwoven and somewhat confusing arguments.  To the extent that I can discern what they are, his arguments in support of his request are as follows.

1.  FAB should have found that the period of the employee’s covered employment began when she started work for Ross Aviation at Hangar 481, Kirtland AFB, on December 9, 1985, rather than when Hangar 481 became a covered DOE facility on March 1, 1989, because Ross Aviation had contracts with DOE and its predecessor agencies starting in 1970, and because those contracts show that Ross Aviation began working at Hangar 481 in 1984.  In conjunction with this argument, which the claimant raised earlier in the adjudication of his claim, he asserts that copies of the contracts in question that he submitted have either never been considered, or were not considered by the appropriate agency of the Department of Labor.

2.  FAB wrongly found that the employee’s diagnosed acoustic neuroma was not an “occupational illness” that is compensable under Part B that should have been taken into account during the dose reconstruction process and the determination of the probability of causation for the Part B claim.

3.  FAB wrongly concluded that the effect of the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation on December 9, 1985, as well as her alleged “non-employment” exposure during her accepted covered employment, could not be taken into account when it determined the probability of causation for her pancreatic cancer.  The claimant contends that these alleged exposures to radiation can be inferred from evidence in the file and must be taken into account, because 42 U.S.C. § 7384n(c)(3)(C) provides that the regulatory guidelines for determining the probability of causation for cancer under Part B “shall take into consideration. . .other relevant factors.”  As was the case with the claimant’s first argument noted above, he made this particular argument previously in the adjudication of his claim.

4.  FAB wrongly concluded that the alleged radiation exposure of the employee “in other employments” was not covered under EEOICPA.  The claimant contends that this alleged radiation exposure should have been taken into account and “added to the worker’s total exposure. . . .”  While he acknowledges that the dose reconstruction methodology that the National Institute for Occupational Safety and Health (NIOSH) used to estimate the radiation dose of the employee is binding on FAB, he believes that FAB should have determined that his objections concerning the application of that methodology, as it related to the alleged exposures in question, needed to be considered by NIOSH and therefore should have returned the Part B claim to the district office for referral to NIOSH for such consideration.  To support this argument regarding the employee’s radiation dose, he asserts that:

[G]eneral principles of workers [sic] compensation law contemplate that a worker who was exposed to radiation in multiple employments, like the worker in this case, is not limited to an analysis of exposure during the last term of injurious employment.  Rather, in such cases the sum total of the worker’s exposure during successive employments should be taken into account in assessing the effect of the worker’s last injurious exposure to radiation, and in so doing the exposure with the last employer. . .is given its due weight in contributing to the onset of a subsequently occurring cancer. 

Similar to the first and third arguments listed above, the claimant raised this argument previously in the adjudication of his EEOICPA claim.

5.  The claimant was not afforded the opportunity to present his objections regarding the dose reconstruction for the employee to NIOSH, which he acknowledges is “the agency which most logically has the expertise to evaluate the merits” of his position.  Therefore, the claimant believes that FAB should have returned his Part B claim to the district office for referral to NIOSH so it could consider his contention that the dose reconstruction for the employee should have included her non-employment and “other employments” exposures.

After careful consideration of these arguments, and for the reasons set forth below, the request for reconsideration is hereby denied.

With regard to the first argument noted above, and as set out in FAB’s November 30, 2010 decision, there is no dispute that Ross Aviation performed work under contracts it had with DOE and its predecessor agencies as early as February of 1970, and that the evidence establishes that the employee started working for Ross Aviation on December 9, 1985.  The pertinent question for the purposes of the claimant’s survivor claim, however, concerns where Ross Aviation did its work under its contracts with DOE that covered the period of the employee’s employment from December 9, 1985 through June 30, 1994.  Contrary to the claimant’s allegations noted above, the contracts at issue have, in fact, been previously reviewed by the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), which is the division of the Office of Workers’ Compensation Programs that administers EEOICPA[1], when NIOSH provided her with copies of them and asked, in a September 30, 2009 letter regarding the petition to add a class of employees at Hangar 481 to the Special Exposure Cohort the claimant filed with NIOSH, whether those contracts were sufficient to expand the “covered” period of Hangar 481 as a DOE facility.  In her February 2, 2010 response, the Director noted that after carefully reviewing those contracts, it was her conclusion that they did not support changing the determination that Ross Aviation was a DOE contractor at Hangar 481, Kirtland AFB, for the period March 1, 1989 through February 29, 1996.  Those same contracts were also carefully considered yet again when the claimant submitted copies of them to the case file in support of his claim, and are briefly described below:

  • Contract No. AT(29-2)-2859 (covering February 1, 1970 through January 31, 1973) states that Ross Aviation would be performing air transport services for the Atomic Energy Commission (AEC) “at the Albuquerque Sunport, , .”  There is no mention in this contract that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Contract No. AT(29-2)-3276 (covering February 1, 1973 through January 31, 1974, with multiple modifications that extended the coverage to February 28, 1979 and changed the contract number to E(29-2)-3276 when the AEC was replaced by the Energy Research and Development Administration (ERDA)) states that the “main operations base shall be maintained at the Contractor’s facility at the Albuquerque International Airport. . . .”  Again, there is no mention in this contract or its modifications that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Modification number A011 to Contract No. EY-76-C-04-3276 (extending the coverage of that contract from March 1, 1979 through February 29, 1984 and changing the contract number to DE-AC04-76DP03276 when ERDA was replaced by DOE) states that the “main operations base shall be maintained at the Government’s existing facility at the Albuquerque International Airport. . . .”  This modification also fails to state that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Modification number M016 to Contract No. DE-AC04-76DP03276 (covering the period of March 1, 1980 to February 28, 1981) states that the location at which Ross Aviation is maintaining and flying Government-furnished aircraft is “the Main Base – .”[2]  Once again, there is no mention in this modification that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Contract No. DE-AC04-89AL52318 (covering March 1, 1989 through February 28, 1990, with extensions through February 29, 1996) is the earliest contract that describes the location at which Ross Aviation is working as “Government-owned facilities located on Kirtland Air Force Base, New Mexico.”  Because Contract No. DE-AC04-89AL52318 is a “Management and Operations” contract, this also means that Ross Aviation became a DOE contractor at that time within the meaning of 42 U.S.C. § 7384l(12)(B)(ii), because it was an “entity” that entered into a “management and operations” contract with DOE at a DOE facility, i.e., Hangar 481, Kirtland AFB.

As noted above, and as previously stated in FAB’s November 30, 2010 decision, there is no probative and persuasive evidence specifying that Ross Aviation performed its work under a contract with DOE at Hangar 481, Kirtland AFB, prior to March 1, 1989.  In this regard, and again as pointed out by FAB in the November 30, 2010 decision, the non-contractual evidence the claimant submitted in support of this argument is of diminished probative value when compared to the actual contracts described above.  Accordingly, there is no basis for extending the covered period for that facility to include the earlier period that the employee worked there beginning on December 9, 1985, and this argument does not warrant reconsideration of FAB’s November 30, 2010 decision.

As for the second argument described above, FAB’s November 30, 2010 decision specifically informed the claimant that acoustic neuroma is not an “occupational illness,” as that term is defined in § 7384l(15), and therefore is not compensable under Part B.  While he contends that acoustic neuroma is a cancer and therefore it should have been taken into account by NIOSH when it reconstructed the employee’s radiation dose and by DEEOIC when it determined the probability of causation based on that dose reconstruction, acoustic neuroma is actually a benign tumor of the eighth cranial nerve.  The only reference to that illness in the medical evidence is in an August 11, 2000 report by Dr. Jorge Sedas, in which Dr. Sedas related the employee’s history of a “right-sided acoustic tumor – stable”; there is no medical evidence in the file showing that the reported tumor was malignant (cancer).  The provisions of 42 U.S.C. § 7384n(b), (c), and (d) regarding the dose reconstruction process and the determination of probability of causation are applicable only for the purpose of determining whether cancer was sustained in the performance of duty.  For those reasons, this second argument also does not warrant reconsideration of the November 30, 2010 decision of FAB.

In the third argument described above, the claimant contends that FAB should have taken the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation and her alleged non-employment exposure during her accepted covered employment, which he asserts can be inferred from the evidence in the file, into account as “other relevant factors” when it determined the probability of causation for the employee’s pancreatic cancer under Part B.  While he is correct that § 7384n(c)(3)(C) of EEOICPA directs that the regulatory guidelines for determining the probability of causation for cancer claimed under Part B “shall take into consideration. . .other relevant factors,” the task of devising these guidelines (and taking those “other relevant factors” into account) pursuant to that statutory directive was assigned to the Secretary of Health and Human Services (HHS), not the Secretary of Labor, by the President in Sec. 2(b)(i)(A) of Executive Order 13179 of December 7, 2000.  65 Fed. Reg. 77487 (December 11, 2000).[3]  While DEEOIC is required by 42 C.F.R. § 81.20(b) to apply the HHS regulatory guidelines, which have been incorporated into the NIOSH Interactive RadioEpidemiological Program (NIOSH-IREP), DEEOIC does not have the authority to alter the guidelines to take into account the particular non-covered employment exposures the claimant alleges that the employee experienced both prior to and away from her covered employment at Hangar 481 as “other relevant factors” when determining the probability of causation for her pancreatic cancer under Part B.  On the contrary, as Paragraph 2.0 of the User’s Guide the for the Interactive RadioEpidemiological Program (NIOSH-IREP) states:

The NIOSH-IREP computer code is a web-based program that estimates the probability that an employee’s cancer was caused by his or her individual radiation dose.  Personal information (e.g., birth year, year of cancer diagnosis, gender) and exposure information (e.g., exposure year, dose) may be entered manually or through the use of an input file.  For application by the U.S. Department of Labor (DOL), the input file option is used to preset all personal information, exposure information, and system variables.  These input files are created by NIOSH for each individual claim and transmitted to the appropriate DOL district office for processing.[4] (emphasis added)

Accordingly, the claimant’s third argument also does not warrant granting his request to reconsider FAB’s November 30, 2010 decision.

In the fourth argument in support of the claimant’s request, he contends that the employee’s alleged radiation exposures “in other employments” should have been taken into account and “added to the worker’s total exposure” as “other relevant factors.”  As FAB’s November 30, 2010 decision noted, the issue of what radiation dose to include is exclusively under the control of NIOSH, pursuant to the President’s assignment of the task of performing dose reconstructions to the Secretary of HHS (which then re-delegated it to NIOSH) in Sec. 2(b)(iii) of Executive Order 13179.  Also, the statute itself, at § 7384n(d)(1), restricts the dose to be used to determine probability of causation to radiation exposure that occurred solely “at a facility,” which in the employee’s case, means the dose she received when Hangar 481 was a DOE facility–March 1, 1989 through June 30, 1994.  HHS has issued regulations governing the dose reconstruction process at 42 C.F.R. part 82, and those regulations do not provide for any consideration of pre-employment and non-employment radiation exposures in estimating radiation dose incurred at a DOE facility, regardless of the claimant’s belief that principles of workers’ compensation require such consideration.  Because consideration of the “other relevant factors” referred to in 42 U.S.C. § 7384n(c)(3)(C), which as noted above, refers solely to the determination of probability of causation, this fourth argument also does not warrant reconsideration of the November 30, 2010 FAB decision on the claim.

Finally, in the fifth argument, the claimant asserts that FAB should have returned his Part B claim to the district office for referral to NIOSH, so NIOSH could consider his contention that the dose reconstruction for the employee should have included non-employment and “other employments” exposures.  While there is no dispute that NIOSH is “the agency which most logically has the expertise to evaluate the merits” of his position, the fact remains that the claimant was provided with the opportunity, at multiple points during the dose reconstruction process at NIOSH, to submit whatever evidence he had regarding the employee’s radiation exposures for consideration by NIOSH.  Further, as discussed above, the types of exposures at issue here are simply not covered under EEOICPA.  Therefore, there was no reason for FAB to return the Part B claim to the district office for referral to NIOSH, and this final argument, like the preceding four, does not provide a sufficient basis for reconsidering FAB’s November 30, 2010 decision.

I must deny the request for reconsideration because the claimant has not submitted any argument or evidence which justifies reconsideration of the November 30, 2010 final decision.  That decision of FAB is therefore final on the date of issuance of this denial of the request for reconsideration.  See 20 C.F.R. § 30.319(c)(2).

Cleveland,

Tracy Smart

Hearing Representative

Final Adjudication Branch

[1]  The sources of authority for administering EEOICPA are set out at 20 C.F.R. § 30.1,which states that the Director of the Office of Workers’ Compensation Programs (and his designee the Director of DEEOIC) has the primary responsibility to administer EEOICPA, except for those activities assigned to other agencies.  This responsibility includes the “exclusive authority to. . . interpret the provisions of EEOICPA,” among them the statutory definition of “Department of Energy facility” at § 7384l(12).

[2]  The case file also contains numerous other modifications of Contract No. DE-AC04-76DP03276, but those other modifications also do not include a “Statement of Work” provision identifying the location where Ross Aviation was to perform its work; thus, they are not described above.  For example, modification number M062 extended the provisions of that contract to cover the period from March 1, 1984 through February 28, 1989 (during which the employee began working for Ross Aviation), but contained no language whatsoever that described where Ross Aviation performed its work for DOE.

[3]  See also 20 C.F.R. § 30.2(b) (“. . .HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee’s radiogenic cancer”) and 20 C.F.R. § 30.213(b) (“HHS’s regulations satisfy the legal requirements in section 7384n(c) of the Act, which also sets out OWCP’s obligation to use them in its adjudication of claims for radiogenic cancer filed under Part B of the Act, and provide the factual basis for OWCP to determine if the ‘probability of causation’ (PoC) that an employee’s cancer was sustained in the performance of duty is 50% or greater (i.e., it is ‘at least as likely as not’ causally related to employment), as required under section 7384n(b)”).

[4]  See: http://www.cdc.gov/niosh/ocas/pdfs/irep/irepug56.pdf(last visited April 13, 2011).

Specified cancers

EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On December 12, 2001, the Seattle District Office issued a recommended decision concluding that the deceased covered employee was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA, and that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA as his survivor.  On December 17, 2001, the Final Adjudication Branch received written notification from you waiving any and all objections to the recommended decision.

The undersigned has reviewed the evidence of record and the recommended decision issued by the Seattle district office on December 12, 2001, and finds that:

In a report dated August 20, 1996, Dr. John Mues diagnosed the deceased covered employee with mixed squamous/adenocarcinoma of the lung.  The report states the diagnosis was based on the results of a thoracoscopy and nodule removal. Lung cancer is a specified disease as that term is defined in § 7384l(17)(A) of the EEOICPA and 20 CFR § 30.5(dd)(2) of the EEOICPA regulations.

You stated in the employment history that the deceased covered employee worked for S.S. Mullins on Amchitka Island, Alaska from April 21, 1967 to June 17, 1969.  Nancy Shaw, General Counsel for the Teamsters Local 959 confirmed the employment by affidavit dated November 1, 2001.  The affidavit is acceptable evidence in accordance with § 30.111 (c) of the EEOICPA regulations.

Jeffrey L. Kotch[1], a certified health physicist, has advised it is his professional opinion that radioactivity from the Long Shot underground nuclear test was released to the atmosphere a month after the detonation on October 29, 1965. He further states that as a result of those airborne radioactive releases, SEC members who worked on Amchitka Island, as defined in EEOICPA § 7384l(14)(B), could have been exposed to ionizing radiation from the Long Shot underground nuclear test beginning a month after the detonation, i.e., the exposure period could be from approximately December 1, 1965 through January 1, 1974 (the end date specified in EEOICPA, § 7384l(14)(B)).  He supports his opinion with the Department of Energy study, Linking Legacies, DOE/EM-0319, dated January 1997, which reported that radioactive contamination on Amchitka Island occurred as a result of activities related to the preparation for underground nuclear tests and releases from Long Shot and Cannikin.  Tables 4-4 and C-1, on pages 79 and 207, respectively, list Amchitka Island as a DOE Environmental Management site with thousands of cubic meters of contaminated soil resulting from nuclear testing.

The covered employee was a member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA and §§ 30.210(a)(2) and 30.213(a)(2) of the EEOICPA regulations.  This is supported by evidence that shows hewas working on Amchitka Island for S.S. Mullins during the potential exposure period, December 1, 1965 to January 1, 1974.

The covered employee died February 17, 1999.  Metastatic lung cancer was included as a immediate cause of death on the death certificate.

You were married to the covered employee August 18, 1961 and were his wife at the time of his death.  You are the eligible surviving spouse of the covered employee as defined in § 7384s of the EEOICPA, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012, 1371, December 28, 2001.[2]

The undersigned hereby affirms the award of $150,000.00 to you as recommended by the Seattle District Office.

Washington, DC

Thomasyne L. Hill

Hearing Representative

[1] Jeffrey L. Kotch is a certified health physicist employed with the Department of Labor, EEOICP, Branch of Policies, Regulations and Procedures.  He provided his professional opinion in a December 6, 2001 memorandum to Peter Turcic, Director of EEOICP.

[2] Title XXXI of the National Defense Authorization Act for Fiscal Year 2002 amended the Energy Employees Occupational Illness Compensation Program Act.

EEOICPA Fin. Dec. No. 50214-2005 (Dep’t of Labor, March 2, 2005)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On October 16, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) claiming benefits as the spouse of [Employee].  You identified the diagnosed condition being claimed as liver cancer (hepatocellular carcinoma).  The medical documentation of record shows that your husband was diagnosed with liver cancer on September 15, 2003.  Those records also show findings of cirrhosis of the liver.  You also indicated that your husband was a member of the Special Exposure Cohort (SEC) based on his employment at the gaseous diffusion plant in Portsmouth, OH.

You submitted a copy of your marriage certificate which shows that you and your husband were wed on February 16, 2000.  You also submitted a copy of your husband’s death certificate showing that he died on September 20, 2003, and identifying you as his surviving spouse.  The death certificate shows the cause of death as respiratory failure due to cirrhosis of the liver and cancer of the liver.

You also provided a Form EE-3 (Employment History) in which you stated that your husband worked for GAT, Lockheed Martin Marietta, and USEC from April 19, 1976, to September 20, 2003.  You did not indicate the location of your husband’s employment.  The Department of Energy (DOE) verified that he worked at the Portsmouth Gaseous Diffusion Plant (GDP) from April 19, 1976, to September 20, 2003.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.

To determine the probability of whether your husband sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  On November 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On December 9, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your husband’s cancer and reported in its recommended decision that there was a 42.16% probability that liver cancer was caused by radiation exposure at the Portsmouth GDP.

On December 20, 2004, the Cleveland district office recommended denial of your claim for compensation finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that your husband does not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  The district office noted that your husband’s liver cancer cannot be a “specified cancer” because cirrhosis is also indicated by the evidence of record.  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s. 

FINDINGS OF FACT

1.      You filed a claim for benefits on October 16, 2003.

2.      Your husband worked at Portsmouth GDP, a covered DOE facility, from April 19, 1976, to September 20, 2003.

3.      Your husband was diagnosed with liver cancer on September 15, 2003.  The medical evidence also indicated findings of cirrhosis.

4.      The NIOSH Interactive RadioEpidemiological Program indicated a 42.16% probability that your husband’s liver cancer was caused by radiation exposure at the Portsmouth GDP.

5.      Your husband’s cancer was not at least as likely as not related to his employment at a DOE facility

6.      You are the surviving spouse of [Employee] and were married to him for at least one year immediately prior to his death.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on December 20, 2004.  I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

You filed a claim based on liver cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that your husband was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9).  The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility.  See 42 U.S.C. § 7384n(b).

Using the information provided in the Report of Dose Reconstruction for liver cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 42.16% probability that your husband’s cancer was caused by radiation exposure while employed at the Portsmouth GDP.  The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 42.16% probability.

You also claimed entitlement to compensation due to your husband’s status as a member of the SEC.  The FAB finds that the medical evidence of record indicates the presence of cirrhosis of the liver.  Based on that finding, your husband’s liver cancer cannot be considered a “specified cancer” as defined by 42 U.S.C. § 7384l(17)(A).  For that reason, although your husband’s employment is sufficient to establish that he is a member of the SEC, he cannot be considered to be a covered employee with cancer as defined by 42 U.S.C. § 7384l(9)(A).

Therefore, your claim must be denied because the evidence does not establish that your husband is a “covered employee with cancer,” because his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP.  Additionally, the evidence does not establish that your husband is a “covered employee with cancer,” based on SEC membership and liver cancer, because cirrhosis is indicated by the medical evidence of record.  See 42 U.S.C. § 7384l(1)(B), (9)(A) and (B), and (17)(A).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under Part B of the Act.  Accordingly, your claim for benefits is denied.

Cleveland, OH

Tracy Smart

Acting FAB Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 59055-2004 (Dep’t of Labor, September 17, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts your claim for compensation based on rectal cancer.

STATEMENT OF THE CASE

You filed a claim, Form EE-1 (Claim for Employee Benefits under the EEOICPA), on July 7, 2004, based on rectal cancer/colon cancer.  You provided a copy of a histopathology report which diagnosed invasive adenocarcinoma, based on analysis of a rectal polyp obtained during a colonoscopy on February 24, 1997.  An operative report shows that you underwent a low anterior resection due to rectal cancer on March 13, 1997.  The post-surgical pathology report diagnoses moderately differentiated adenocarcinoma of the colon.

You also provided a Form EE-3 (Employment History) in which you state that you worked for Dynamic Industrial (Dycon) at the Portsmouth Gaseous Diffusion Plant (GDP), in Piketon, OH, as a pipefitter from January 1983 to November 1984 and from January 1985 to June 1985.  You also report that you worked for the Marley Cooling Tower Co. at the Portsmouth GDP during March 1985.  You also state that you wore a dosimetry badge while so employed.

The Department of Energy (DOE) was unable to confirm your reported employment.  You provided copies of Forms W-2 which show that you were paid wages by Dynamic Industrial Cons. Inc. during 1983, 1984, and 1985; and by the Marley Cooling Tower Co. in 1985.    A letter from the Financial Secretary Treasurer of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 577, reports that you worked at the Portsmouth GDP for Dynamic Industrial from January 1983 to November 1984 and from January 1985 to June 1985; and for Marley Cooling Tower Co. during March 1985.  A representative of the DOE provided information which establishes that Dycon was a subcontractor at the Portsmouth GDP from 1980 through 1986.  The Portsmouth GDP is recognized as a Department of Energy (DOE) facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy Facilities List.

On August 6, 2004, the Cleveland district office issued a recommended decision concluding that you are a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with rectal cancer, which is a specified cancer under 42 U.S.C. § 7384l(17).  In addition the district office concluded that, as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  The district office also concluded that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

On August 19, 2004, the Final Adjudication Branch (FAB) received written notification that you waive any and all objections to the recommended decision.

The FAB received additional evidence subsequent to receipt of your waiver.  The DOE provided a copy of a Personnel Clearance Master Card which shows that you were granted a security clearance with SWEC (Dynamic Indust.) on January 18, 1984.  No termination date is shown.  You submitted additional medical reports regarding your treatment for cancer.  Some of these were duplicates of reports already of record.  The remaining records discuss your treatment following surgery in March 1997.

FINDINGS OF FACT

1.      You filed a claim for benefits on July 7, 2004.

2.      For purposes of SEC membership, you worked at Portsmouth GDP for Dycon during the periods of January 1983 to November 1984 and January 1985 to June 1985.

3.   The evidence of record establishes that Dycon was a subcontractor for the Portsmouth Gaseous Diffusion Plant from 1980 to 1986.

4.      You were employed for a number of work days aggregating at least 250 work days during the period of September 1, 1954, to February 1, 1992, and during such employment performed work that was comparable to a job that is or was monitored through the use of dosimetry badges.

5.      You were diagnosed with rectal cancer on February 24, 1997.

CONCLUSIONS OF LAW

In order to be considered a “member of the Special Exposure Cohort,” you must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body; or had exposures comparable to a job that is or was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).

The evidence of record establishes that you worked in covered employment at the Portsmouth GDP from January 1983 to November 1984 and January 1985 to June 1985.  This meets the requirement of working more than an aggregate 250 days at a covered facility.  See 42 U.S.C. § 7384l(14)(A).  The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 1954 and February 1, 1992, performed work that was comparable to a job that was monitored through the use of dosimetry badges.  See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a (June 2002).  On that basis, you meet the dosimetry badge requirement.

The Final Adjudication Branch notes that you claimed benefits based on rectal cancer/colon cancer.  The medical evidence of record interchangeably refers to adenocarcinoma of the rectum and the colon.  Regardless of the term used, the evidence reveals only a single tumor located in the rectum.  For that reason, your claim is considered to be based on a single occurrence of cancer in your rectum.

Rectal cancer is considered to be colon cancer, which is a specified cancer under the Act, and the medical evidence of record establishes a diagnosis of rectal cancer.  Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer.  See 42 U.S.C. §§ 7384l(14)(A) and (17).

For the reasons stated above, I accept your claim for benefits based on rectal cancer.  You are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  Additionally, I conclude that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch