The EEOICPA was passed in 2000. It provides compensation to workers who became ill as a result of their employment manufacturing nuclear weapons in the USA, as well as their spouses, children, and grandchildren.

Are you eligible for compensation? If you or a family member worked at any of the Atomic Weapons Employer (AWE) and Department of Energy (DOE) Covered Facilities listed on this website and became ill, you may be entitled to compensation of up to $400K plus medical benefits. Call EEOICPA Counsel Hugh Stephens at 1-855-548-4494 or fill out our free claim evaluation, We can help even if you’ve already filed, even if your claim was denied!

In these pages, we present general definitions of Illnesses covered by the Act, followed by specific references to the disease from the EEOICPA Procedure Manual, Bulletins, and Final Decisions of the Final Adjudication Board to clarify how these maldies might relate to the Energy Employees Occupational Illness Compensation Program Act.

Brain Cancer

Below we have collected specific references to brain cancer from the DEEOIC Procedure Manual, Bulletins, and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.

Note: Page numbers below refer to the documents available on our DEEOIC Resources page.

A.D.A.M. Medical Encyclopedia:

Brain tumor – primary – adults

Glioblastoma multiforme – adults;

Ependymoma – adults;

Glioma – adults; Astrocytoma – adults;

Medulloblastoma – adults;

Neuroglioma – adults;

Oligodendroglioma – adults;

Lymphoma – adults;

Vestibular schwannoma (acoustic neuroma) – adults;

Meningioma – adults; Cancer – brain tumor (adults)

A primary brain tumor is a group (mass) of abnormal cells that start in the brain.

Causes, incidence, and risk factors

Primary brain tumors include any tumor that starts in the brain. Primary brain tumors can start from brain cells, the membranes around the brain (meninges), nerves, or glands. Tumors can directly destroy brain cells. They can also damage cells by producing inflammation, placing pressure on other parts of the brain, and increasing pressure within the skull. The cause of primary brain tumors is unknown. There are many possible risk factors that could play a role.

  • Radiation therapy to the brain, used to treat brain cancers, increases the risk for brain tumors up to 20 or 30 years afterwards.

  • Exposure to radiation at work or to power lines, as well as head injuries, smoking, and hormone replacement therapy have NOT been proven to be risk factors.

  • The risk of using cell phones is hotly debated. However, most recent studies have found that cell phones, cordless phones, and wireless devices are safe and do not increase the risk.

  • Some inherited conditions increase the risk of brain tumors, including neurofibromatosis, Von Hippel-Lindau syndrome, Li-Fraumeni syndrome, and Turcot syndrome.

  • Lymphomas that begin in the brain in people with a weakened immune system are sometimes linked to the Epstein-Barr virus.

SPECIFIC TUMOR TYPES

Brain tumors are classified depending on:

  • The location of the tumor

  • The type of tissue involved

  • Whether they are noncancerous (benign) or cancerous (malignant)

  • Other factors

Sometimes, tumors that start out less aggressive can become more aggrssive. Tumors may occur at any age, but many types of tumors are most common in a certain age group. In adults, gliomas and meningiomas are most common. Gliomas come from glial cells such as astrocytes, oligodendrocytes, and ependymal cells. The gliomas are divided into three types:

  • Astrocytic tumors include astrocytomas (can be noncancerous), anaplastic astrocytomas, and glioblastomas.

  • Oligodendroglial tumors. Some primary brain tumors are made up of both astrocytic and oligodendrocytic tumors. These are called mixed gliomas.

  • Glioblastomas are the most aggressive type of primary brain tumor.

Meningiomas and schwannomas are two other types of brain tumor. These tumors:

  • Occur most often between ages 40 and 70

  • Are usually noncancerous, but still may cause serious complications and death from their size or location. Some are cancerous and aggressive.

Meningiomas are much more common in women. Schwannomas affect both genders equally. Other primary brain tumors in adults are rare. These include:

  • Ependymomas

  • Craniopharyngiomas

  • Pituitary tumors

  • Primary CNS lymphoma

  • Primary lymphoma of the brain

  • Pineal gland tumors

  • Primary germ cell tumors of the brain

Procedure Manual

Page 47

uu. Specified Cancers are listed in Section 30.5(ff) of the regulations. An employee must be diagnosed with one of thesespecific types of cancer to be considered eligible for benefits as a member of the Special Exposure Cohort (SEC). The list of specified cancers, which is derived from section 4(b)(2) of the RECA Amendments of 2000, is as follows:

(5) The following diseases, provided onset was at least five years after first occupational exposure:

(c) Primary cancer of the:

(xii) Brain(which consists of the cerebrum, cerebellum, brainstem, and diencephalon and excludes intracranial endocrine glands and other parts of the central nervous system);

Page 175

7. Specified Cancers: In addition to satisfying the employment criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff):

e. Other Diseases. For the following diseases, onset must have been at least five years after initial exposure during qualifying SEC employment:

(3) Primary cancer of the:

(l) Brain (malignancies only, not including intracranial endocrine glands and other parts of the central nervous system);

Page 353

5. Metastasized Cancer(s). Metastasized cancer(s) is a secondary cancer that originates from the primary cancer site.

b. Examples of Metastasized Cancers. It is widely accepted that certain carcinomas and/or sarcomas metastasize from the primary site. For example:

(1) Carcinomas of the lung, breast, kidney, thyroid, and prostate tend to metastasize to the lungs, bone, and brain.

(2) Carcinomas of the gastrointestinal tract, reproductive system, and abdomen tend to metastasize to the abdominal lymph nodes, liver, and lungs. Later in their course, these carcinomas can metastasize to the brain and other organs.

(3) Sarcomas often first metastasize to the lungs and brain.

(4) Primary malignant tumors of the brain seldom metastasize to other organs, but they can spread to the spinal cord.

Bulletins

Page 753

03-32 Certification by NCI of Certain Primary Cancers

EEOICPA BULLETIN NO.03-32

Issue Date: August 27, 2003

Effective Date: August 27, 2003

Expiration Date: August 27, 2004

Subject: Clarification by NCI of Certain Primary Cancers

Background: 20 CFR 30.5 (dd)(6) states that specified cancers are “the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.” The Department of  Labor (DOL) forwarded five issues to the National Cancer Institute (NCI) for their review and classification to determine which conditions could be considered as cancers under the EEOICPA.

The five issues sent to NCI were:

· Definition of brain cancer;

· Cancers of the pleura and the lung;

· Considering cancer of the urethra as a cancer of the urinary bladder; and

· Clarification of the terminology related to a diagnosis of polycythemia vera.

· Clarification regarding the classification of essential thromobocytosis.

The NCI’s responses to these five issues are as follows.

Regarding the definition of brain cancer, it is appropriate to consider only malignancies of the brainunder this category, excluding intracranial endocrine glands and other parts of the central nervous system (CNS). Under this definition, the brainis the part of the central nervous system contained within the skull, i.e., the intracranial part of the CNS consisting of the cerebrum, cerebellum, brain stem, and diencephalon. Benign and borderline tumors of the brain would be excluded from this definition, including borderline astrocytomas. Cancers of the pleura are different from lung cancers. NCI noted that the tissues of these two organs are different as well as the etiologies of their malignancies. Accordingly, the pleura and the lung are separate organs and a cancer of the pleura is not lung cancer.

Concerning the urethra, it is contiguous with the urinary bladder and is lined by the same type of urothelial cells as the bladder. NCI noted that urethral cancer is so similar to bladder cancer from epidemiologic, biologic, and clinical perspectives that it is appropriate to consider cancer of the urethra as a cancer of the urinary bladder.

In Bulletin 03-11, polycythemia rubra vera and its variant polycythemia vera with leukocytosis and thrombocytosis were considered as bone cancer. We requested clarification as to whether all of the descriptors were necessary in a diagnosis of polycythemia vera. Leukocytosis and thrombocytosis are supplemental descriptors of polycythemia vera. NCI noted that a diagnosis of polycythemia vera (also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia) is sufficient by itself to be classified as a malignancy of the bone marrow.

Our final question for clarification involves the classification of essential thrombocytosis. NCI recognizes essential thrombocytosis as a synonym of essential thrombocythemia. The current NCI tumor coding book (ICD-O-3) identifies essential thrombocythemia as a malignancy. It is in the same category as polycythemia vera, which DOL considered to be a bone cancer (see Bulletin 03- 11). Since essential thrombocytosis is a malignancy of the bone marrow, it should be considered as bone cancer.

Reference: Energy Employees Occupational Illness Compensation Program Act of 2000, As Amended, 42 U.S.C. § 7384 et seq., Section 7384l(17); 20 CFR Part 30, Section 30.5 (dd); and letters from A. Fritz, NCI, to P. Turcic, DOL, dated April 28, 2003, and Dr. E. G. Fiegal, NCI, to J. Kotsch, DOL, dated July 28, 2003.

Purpose: To notify District Offices of the clarification of five medical conditions as primary cancers

Applicability: All staff

Actions

1. The Claims Examiners (CEs) in the district offices and FAB, as well as the FAB Hearing Representatives (HRs) must consider brain cancer, per EEOICPA Section 7384l(17), to include only malignancies of the brain, excluding intracranial endocrine glands and other parts of the central nervous system (CNS). Under this definition, the brainis the part of the CNS contained within the skull, i.e., the intracranial part of the CNS consisting of the cerebrum, cerebellum, brainstem, and diencephalon. Benign and borderline tumors of the brainare excluded from this definition, including borderline astrocytomas

2. Cancers of the pleura and the lung are separate organs. A cancer of the pleura is not lung cancer. If cancer of the pleura is claimed, the CE/HR does not consider this malignancy as lung cancer, which is a specified cancer (per EEOICPA Section 7384l(17)).

3. Cancer of the urethra should be considered by the CE/HR as a cancer of the urinary bladder, which is a specified cancer per EEOICPA Section 7384l(17).

4. The CE/HR must consider a diagnosis of primary polycythemia vera (also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia) to be bone cancer, which is a specified primary cancer per EEOICPA Section7384l(17)(B).

5. The CE/HR must consider essential thrombocytosis or essential thrombocythemia as bone cancer, which is a specified primary cancer per EEOICPA Section 7384l(17)(B).

6. The CE/HR must look for any other cases of the medical conditions discussed above that could make the claimant eligible for benefits, either as a member of the SEC or through dose reconstruction. The District Office/FAB must perform a review of the ECMS to determine which cases may have already been denied or sent to NIOSH. Using the results of that review, the District Office/FAB must pull any cases for review in accordance with this bulletin. If modification orders are required, the District Office/FAB must send the case to the National Office.

7. The CE/HR must continue to distinguish these medical conditions from other specified cancers, as appropriate, using the appropriate ICD-9 codes on all paperwork and in ECMS. For the conditions to be considered as cancer of the urinary bladder, the ICD-9 codes are 189.3 and 188.9 for the urethra and urinary bladder, respectively. For the conditions to be considered as bone cancers, the ICD-9 code for polycythemia rubra vera and its variant polycythemia vera with leukocytosis and thrombocytosis is 238.4, essential thrombocytosis is 238.7, and essential thrombocythemia is 289.9. The ICD-9 code for malignant neoplasm of the bone is 170.

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants,

Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Sections

Final Decisions

Page 66

EEOICPA Fin. Dec. No. 10002490-2005 (Dep’t of Labor, July 8, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a 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. For the reasons set forth below, your claim is accepted in part and deferred in part. Since you submitted a letter of objection, but did not specifically request a 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.

STATEMENT OF THE CASE

On December 16, 2001, according to the Paducah Resource Center, you filed a Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia. On the Form EE-3, Employment History, you stated you were employed as a senior lab analyst by Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986. The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.

A previous Final Decision was issued by the Department of Labor on May 29, 2002, denying your claim for compensation because you did not provide medical evidence sufficient to establish a diagnosis of an occupational illness under the Act. 42 U.S.C. § 7384l(15).

You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia. A Physicians Panel review under former Part D of the Act has been completed. The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility. This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility. 42 U.S.C. § 7385s-4(b). On September 28, 2004, the DOE advised you of the Panel’s affirmative determination.

On January 31, 2005, you were contacted by the Jacksonville district office and requested to provide additional information. You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

On March 7, 2005, the Jacksonville district office issued a recommended decision concluding that you are entitled to medical benefits for bronchitis and pneumonia beginning December 16, 2001.

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. These 60 days expired on May 6, 2005. On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.

OBJECTIONS

In the letter of objection, you stated that you agreed with the positive determination for bronchitis and pneumonia but disagreed with the negative determination for brain tumor.However, the recommended decision did not address your claim for brain tumorand noted that conditions not accepted by the physicians’ panel will be deferred for additional development. The information you submitted will be included in your case file for future reference during development and adjudication of any additional entitlement.

FINDINGS OF FACT

1. On December 16, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.

2. The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.

3. You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.

A Physicians Panel review under former Part D of the Act has been completed. The Secretary of   Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility. This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah,  Kentucky, a DOE facility. On September 28, 2004, the DOE advised you of the Panel’s affirmative determination

4. You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

5. On March 7, 2005 the Jacksonville district office issued a recommended decision.

6. On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005. The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on March 7, 2005, and the subsequently submitted objections. I find that the decision of the Jacksonville district office is supported by the evidence and the law, and cannot be changed.

 The Final Adjudication Branch has reviewed the record and the recommended decision of March 7, 2005 and concludes that you were a DOE contractor employee with bronchitis and pneumonia due to exposure to a toxic substance at a DOE facility. 42 U.S.C. §§ 7385s(1), 7385s-4. Therefore, the Final Adjudication Branch hereby concludes that you are entitled to medical benefits for bronchitis and pneumonia effective December 16, 2001. 42 U.S.C. § 7385s-8.

Jacksonville, FL

 Sidne M. Valdivieso

Hearing Representative

Page 161

EEOICPA Fin. Dec. No. 81625-2008 (Dep’t of Labor, July 30, 2008).

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. Your claim for survivor benefits under Part E is accepted and you are awarded compensation in the amount of $125,000.00 for the death due to non-Hodgkin’s lymphoma with metastases to the spine, brain, and lung. Your claim for survivor benefits under Part B of EEOICPA is denied.

STATEMENT OF THE CASE

On October 30, 2006, you filed a Form EE-2 claiming survivor benefits under EEOICPA as a surviving child of [Employee], hereinafter referred to as “the employee,” due to the employee’s non-Hodgkin’s lymphoma, lung lesions, and brainand back tumors. You indicated your belief on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC). You submitted a child support order establishing that your date of birth was May 2, 1991, and that the employee was your father.

A November 14, 2003 pathology report diagnosed the employee with non-Hodgkin’s lymphoma. The employee’s death certificate established the date of death as June 11, 2006, that the cause of death was cardiopulmonary arrest with another significant condition of lymphoma, and that there is no surviving spouse. Also submitted was medical evidence supporting the diagnoses of metastatic lung, brain and spine cancer.

On Form EE-3, you alleged that the employee worked as a laboratory technician at the Savannah River Site (SRS) in Aiken, South Carolina, in 1990 or 1991, and that he wore a dosimetry badge. The
Department of Energy (DOE) confirmed that the employee worked at the SRS from January 24, 1991 to March 18, 1992.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers. These data have been organized into a Site Exposure Matrix (SEM), which allows claims staff to identify illnesses
linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. Data retrieved from SEM was
examined to determine if there was any identified toxic substance that had a health effect relating to the claimed illnesses. The district office examined data from SEM but was unable to identify any toxic
substance for the employee’s labor category that had a health effect relating to the claimed illnesses.

In a letter dated April 12, 2007, the Jacksonville district office advised you of the requirement under Part E to establish that it is at least as likely as not that exposure to toxic substances at a DOE facility
was a significant factor in causing, aggravating, or contributing to the claimed illness and the employee’s death from the claimed illness. You were also asked to submit additional employment
information regarding the employee’s job title. You were given time to respond. No other medical evidence was received.

To determine the probability of whether the employee sustained his cancer in the performance of duty, as required to establish entitlement under Part B of EEOICPA, the district office referred your
application package to the National Institute for Occupational Safety and Health (NIOSH) for a 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 your
involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”

You signed Form OCAS-1 on March 19, 2008, 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. The district office received the final NIOSH Report of Dose Reconstruction on April 10, 2008. Pursuant to the implementing NIOSH regulations, the district office used the information
provided in this report to determine that there was a 13.22% probability that the employee’s cancer was caused by his radiation exposure at the SRS.

On April 25, 2008, the district office issued a decision recommending denial of your claim for survivor benefits under both Part B and Part E of EEOICPA because the probability of causation was less than
50% and because it was not at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s
lymphoma and death. An addendum advised you of your right to file objections and/or request a hearing within sixty days of issuance. That period ended on June 24, 2008. To date, no objection or
request for hearing has been received.

The FAB conducted an independent SEM search and found several toxic substances to which the employee may have been exposed in the course of his employment at the SRS. The case was then
referred to a District Medical Consultant (DMC) for review and an opinion on the possible relationship between the employee’s illnesses and his occupational exposure to toxic substances. In a report dated
May 1, 2008, the DMC opined that exposure to toxic substances at the SRS (including solvents, pesticides and benzene) was at least as likely as not a significant factor in causing, aggravating, or
contributing to the employee’s non-Hodgkin’s lymphoma with lung, brain, and spinal metastases and that “the metastases to the spine, brain, and elsewhere significantly contributed to the employee’s
death.”

The FAB performed an independent analysis of the NIOSH radiation dose reconstruction, confirmed the 13.22% probability of causation calculation, and hereby makes the following:

FINDINGS OF FACT
1. On October 30, 2006, you filed a claim for survivor benefits under EEOICPA based on the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors.

2. The employee was diagnosed with non-Hodgkin’s lymphoma on November 13 , 2003.

3. The employee worked for Westinghouse Savannah River Company at the SRS from January 24, 1991 to March 18, 1992.

4. The employee died on June 11, 2006 from cardiopulmonary arrest and lymphoma and was never married.

5. You are the biological child of the employee and you were 15 years old at the time of the employee’s death.

6. The probability that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure at the SRS was less than 50%.

7. There is sufficient evidence in the file to establish that exposure to toxic substances at the SRS was a significant factor in causing, aggravating, or contributing to the employee’s non-
Hodgkin’s lymphoma with metastases and that the metastases to the brain and spine significantly contributed to the employee’s death.
Based on the above findings of fact, the undersigned hereby 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) (2008). 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, the FAB may issue a decision accepting the recommendation
of the district office. 20 C.F.R. § 30.316(a).

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” and
providing “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.” 20
C.F.R. § 30.111. Any claim that “does not meet all the criteria for at least one of the categories, set forth in the regulations, must be denied.” 20 C.F.R. § 30.110(b), (c).

Under Part B of EEOICPA, you meet the definition of a “child” and a “covered employee with cancer” is an individual with a “specified” cancer who is a member of the SEC, if and only if that individual
contracted that “specified” cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE 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 employee was not a member of the SEC.Part B of the Act established a compensation program to provide a lump-sum payment 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. A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50%
or greater probability) related to radiation doses incurred while working at a DOE facility. 42 U.S.C. § 7384n(b).
Based on my review of the evidence of record and the recommended decision, I conclude that you are not entitled to compensation under Part B because the calculation of “probability of causation” does not
show that there is a 50% or greater likelihood that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure received at a DOE worksite in the performance of duty. Therefore, your
claim for benefits under Part B is denied.

You also meet the definition of a “covered” child under Part E of EEOICPA, 42 U.S.C. § 7385s-3(d) (2). Under Part E, specific criteria must be met to establish that the employee contracted an illness
through exposure at a DOE facility. Under Part E, a “covered illness” means an illness or death that resulted from exposure to a toxic substance at a DOE facility. See 42 U.S.C. § 7385s(2).

The evidence of record establishes that it is “at least as likely as not” that exposure to toxic substances at a DOE facility during a covered time period was a significant factor in causing the employee’s
claimed illnesses of non-Hodgkin’s lymphoma with metastases to the brain and spine. I conclude that there is sufficient evidence to prove that toxic exposure at a DOE facility was at least as likely as not a
significant factor in causing, aggravating, or contributing to the claimed condition(s) and to the employee’s death. Therefore, you are entitled to survivor benefits in the amount of $125,000.00 under
Part E of EEOICPA.

Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
Final Adjudication Branch

Page 166

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

NOTICE OF FINAL DECISION
This is the final decision of the Final Adjudication Branch (FAB) concerning the above claim for
compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000,
as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the FAB reverses
the recommended decision of the district office and accepts the claim under Part E of EEOICPA for
medical benefits based on the covered illness of brain tumor (meningioma).

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

[Employee] submitted medical records in support of his claim. Included in these medical records were
several surgical pathology reports, MRI reports and medical narratives, which document he was
diagnosed with meningioma (a non-cancerous brain tumor) in February 1993 at the age of 31. Then, he developed several recurrences of the initial meningioma as well as new lesions in other parts of his
brain. Notably, his tumors were always referred to in these records as being “atypical, aggressive, and
skull-based” and have resulted in his loss of hearing and other neurological deficits.
On May 14, 2003, FAB issued a final decision denying [Employee]’s claim under Part B of
EEOICPA, because non-cancerous tumors of the brain are not compensable “occupational” illnesses
under that Part.

In September 2006, the district office initiated development of [Employee]’s claim under Part E.
Under that Part, once the medical evidence substantiates a diagnosis of a claimed condition, the district
office proceeds with a causation analysis to make a determination as to whether there is a causal
connection between that condition and exposure to a toxic substance or substances at a DOE facility.

The standard by which causation between an illness and employment is established is explained in
Federal (EEOICPA) Procedure Manual Chapter E-500.3b:
Causation Test for Toxic Exposure. Evidence must establish that there is a relationship between
exposure to a toxic substance and an employee’s illness or death. The evidence must show that it is “at
least as likely as not” that such exposure at a covered DOE facility during a covered time period was a
significant factor in aggravating, contributing to, or causing the employee’s illness or death, and that
it is “at least as likely as not” that exposure to a toxic substance(s) was related to employment at a DOE
facility.

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

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

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

On October 17, 2006, the district office received a letter from [Employee]’s authorized representative,
in which he indicated that he believed that [Employee]’s exposure to plutonium and his work in the
glove boxes where he was exposed to radiation contributed to the development of his brain tumor. He
requested a copy of the file, which was provided by the district office on November 14, 2006.On December 4, 2006, a letter was received from [Employee]’s representative, in which he detailed
several instances, based on his review of [Employee]’s exposure records, when he had experienced
plutonium contamination.

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

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

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

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

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

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

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

FINDINGS OF FACT
1. On December 18, 2002, [Employee] filed a claim under Part E of EEOICPA for a brain tumor.

2. [Employee] was employed by DOE contractors from April 16, 1984 to January 15, 2003 at the
Rocky Flats Plant, a covered DOE facility.

3. During [Employee]’s employment he was exposed to ionizing radiation.

4. [Employee] was diagnosed with meningioma, a non-cancerous tumor of the brain, after he
began his employment at the Rocky Flats Plant.

5. The evidence of record supports a causal relationship between the development of
[Employee]’s meningioma and exposure to ionizing radiation at the Rocky Flat Plant.

6. Ionizing radiation is as least as likely as not a significant factor in causing, contributing to, or
aggravating [Employee]’s meningioma.

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

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

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

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

Denver, CO
Paula Breitling
Hearing Representative
Final Adjudication Branch

Page 195

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 affectedyour 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

Page 256

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 thatyou 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.

Page 283

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 performanceof 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.

Page 584

EEOICPA Fin. Dec. No. 54251-2004 (Dep’t of Labor, November 1, 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 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 denied. A copy of this decision was mailed to your authorized representative.

STATEMENT OF THE CASE
On February 9, 2004, you filed a Form EE-2, Claim for Survivor’s Benefits under the EEOICPA. The
claim was based, in part, on the assertion that your late husband 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
lung and brain cancer of [Employee] (hereinafter “the employee”). You submitted evidence that the
employee was diagnosed with lung cancer on March 27, 2003, with metastasis to the brain.

On the Form EE-3, Employment History, you stated the employee was employed by Reactive Metals,
Inc., Ashtabula, Ohio, from December 6, 1965 through August 11, 1992. The district office confirmed
this employment through the corporate verifier as December 6, 1965 to August 11, 1992, at the
Sodium, not the Extrusion, Plant. According to the corporate verifier, the Extrusion Plant is the only
EEOICPA covered plant at the Reactive Metals facility.

Because the file did not contain verification of covered employment, the district office sent you letters
dated February 23, 2004, March 24, 2004, May 19, 2004 and July 19, 2004. The letters explained the
needed information, requested such evidence, and allowed time for response.

In response to these letters, you submitted retirement and pension information and tax documents
concerning employment with Reactive Metals. This information did not place the employee at the
Extrusion Plant, or in other EEOICPA covered employment.

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. Eligible survivors may receive lump sum
compensation, if applicable. Those “occupational illnesses” covered by the EEOICPA are specifically
described in § 7384l(15) of the Act as “covered beryllium illness, cancer referred to in section 7384l(9)
(B)[1] of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).

There are no provisions under the EEOICPA to cover any other illnesses, even if that illness may be
related to employment at a covered facility. To be covered under the Act, employees with cancer must
have worked at an atomic weapons employer facility or a Department of Energy facility as defined in
the Act, and designated in the DOE Facility List Database. 42 U.S.C. §§ 7384l(5), 7384l(12). In this
case, although the employee worked at the Reactive Metals, Inc. facility in Ashtabula, Ohio, he was not
employed at the Extrusion Plant and thus not a covered employee under the Act.

Because the file contained no evidence of covered employment, the Cleveland district office issued a
recommended denial on August 25, 2004. The decision found that the evidence did not establish the
employee could be considered a covered employee with cancer as defined in the Act.

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 October 24, 2004.

The implementing regulations provide that “Within 60 days from the date the recommended decision isissued, 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). The implementing regulations further state that, “If the claimant does not file a written
statement that objects to the recommended decision and/or requests a hearing with the period of time
allotted in section 30.310, or if the claimant waives any objections to all or part of the recommended
decision, the FAB will issue a decision accepting the recommendation of the district office, either in
whole or in part.” 20 C.F.R. § 30.316(a). In this case, you did not file any objections to the
recommended decision or a hearing request.

FINDINGS OF FACT
1. On February 9, 2004, you filed a Form EE-2, Claim for Benefits under the EEOICPA.

2. You claimed the following medical conditions: lung and brain cancer.

3. The employee was diagnosed with lung cancer with metastasis to the brain.

4. The employee was employed at the Sodium Plant, Reactive Metals, Inc., Ashtabula, Ohio, from
December 6, 1965 to August 11, 1992.

5. In proof of your survivorship, you submitted your marriage certificate 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).

6. The district office issued the recommended decision on August 25, 2004.

CONCLUSIONS OF LAW
The undersigned has reviewed the facts and the recommended decision issued by the district office on
August 25, 2004, and finds that the evidence does not establish that the employee was employed at an
atomic weapons employer facility or a Department of Energy facility as defined in the Act and
designated in the DOE Facility List Database. 42 U.S.C. §§ 7384l(5), 7384l(12). For that reason, you
are not entitled to compensation as the survivor of the employee.
42 U.S.C. §§ 7384s(a), 7384s(e).

Jacksonville, FL
Jeana F. LaRock
District Manager

[1] 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 section 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.

Page 875

EEOICPA Fin. Dec. No. 12914-2002 (Dept. of Labor, February 8, 2005)

NOTICE OF FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the
Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C.
§ 7384 et seq. (EEOICPA or the Act). Your claim under Part E of the Act is hereby accepted as
compensable.

On January 28, 2005, the Jacksonville district office issued a recommended decision finding that the
employee was employed at a Department of Energy (DOE) facility by a DOE contractor in accordancewith 42 U.S.C. § 7385s(1); that you are the eligible survivor in accordance with 42 U.S.C. § 7385s-  3(d); that a positive determination by DEEOIC under Part B is treated for the purposes of Part E as a  determination that the employee contracted that illness through work-related exposure to a toxic
substance at a DOE facility in accordance with 42 U.S.C. § 7385s-4(a); and that you are entitled to
$125,000.00 in accordance with 42 U.S.C. § 7385s-3(a)(1). Consequently, the district office
recommended that your survivor claim be accepted in accordance with 42 U.S.C. § 7385s-4(a). On
January 31, 2005, the Final Adjudication Branch received your written notification that you waive any
and all objections to the recommended decision.

The evidence of record establishes that your claim meets the statutory criteria for compensability as
defined in Part E of the EEOICPA. In this instance, the evidence confirms that your spouse had
covered employment with Union Carbide Corporation and Martin Marietta Energy Systems from April
1, 1975 to April 1, 1984 and April 2, 1984 to December 18, 1987, and supports a causal connection
between your spouse’s death and his exposure to a toxic substance at the K-25 gaseous diffusion plant
and the X-10 Oak Ridge National Laboratory, DOE facilities. The evidence of record indicates that a
completed Physicians Panel review under former Part D of the EEOICPA concluded that no causally
related condition exists. However, a separate determination was made by DEEOIC under Part B which
concluded that the employee was a covered employee entitled to compensation for brain cancer. Under  these circumstances, your claim meets the standards for adjudication during the Preliminary
Administration Period consistent with EEOICPA Bulletin No. 05-01 (issued November 23, 2004).

The file contains the employee’s death certificate, which shows that his covered illness caused or
contributed to his death, and also contains a copy of your marriage certificate. This evidence
establishes your entitlement to basic survivor benefits under Part E of the EEOICPA. The file also
contains your statement that the employee did not file or receive any state workers’ compensation
benefits for the claimed condition. In addition, you stated that the employee, at the time of death, had
no minor children or children incapable of self support, who were not your natural or adopted children.

The Final Adjudication Branch hereby finds that the employee is a covered DOE contractor employee
as defined in 42 U.S.C. § 7385s(1); that a positive determination of entitlement by DEEOIC under Part
B was made for the illness of brain cancer; and that you are the eligible survivor of the employee.
Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation in the
amount of $125,000 under Part E of the EEOICPA. Adjudication of your potential entitlement to
additional compensation is deferred until after the effective date of the Interim Final Regulations as per
EEOICPA Bulletin No. 05-01 (issued November 23, 2004).

Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative

Page 895

EEOICPA Fin. Dec. No. 15686-2007 (Dep’t of Labor, April 23, 2007)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD
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 or the Act), 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an
independent review of the record, the FAB accepts and approves your claims for compensation in the
amount of $30,000.00 each under Part B of the Act.

The FAB also concludes that the evidence of record is insufficient to allow compensation under Part E
of the Act. Accordingly, [Claimant #2] and [Claimant #3]’s claims for survivor benefits under Part E
of the Act are denied.

A decision is deferred on [Claimant #1]’s claim for survivor benefits under Part E of the Act, pending
further development.

STATEMENT OF THE CASE
On November 21, 2001 ([Claimant #1]) and November 3, 2006 ([Claimant #2] and [Claimant #3])
each filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) as surviving children of
[Employee] under Part B of the Act, based on the condition of glioblastoma multiforme (brain cancer).
Your claim forms are also considered an application for survivor compensation under Part E of the
Act. You submitted a copy of [Employee]’s death certificate, which indicates he was widowed at the
time of his death on March 11, 1996, due to a malignant brain tumor. You also provided copies of
your birth certificates, showing that you are children of [Employee]. [Claimant #2] and [Claimant
#3] submitted copies of their marriage certificates documenting their changes of name.

[Claimant #1] also submitted a Form EE-3 (Employment History) on which he stated that [Employee]
was employed at the Nevada Test Site from February 1955 to May 1959, and at the Lawrence
Radiation Laboratory between May 1959 and April 1961. A representative of the DOE verified that
[Employee] was employed at the Nevada Test Site for the Reynolds Electrical and Engineering
Company, Inc. (REECO) from February 7, 1955 to April 30, 1959. Additionally, the DOE verified
that the employee had dosimetry records associated with the Lawrence Livermore National Laboratory
(LLNL) from 1959 to 1961; with Diesel Electric Service Company from 1961 to 1966; with the Public
Health Service/U.S. Environmental Protection Agency from 1967 to 1969; and with the Weather
Service during the period of June 1969 to June 1970. The LLNL confirmed that [Employee] was
employed at the LLNL from May 5, 1959 through April 29, 1961, and was rehired on January 31,
1963 through September 6, 1963.

You submitted medical documentation including a pathology report, dated January 17, 1996, showing
the employee had a diagnosis of glioblastoma multiforme.

On June 26, 2003, the Seattle district office referred the case to the National Institute for Occupational
Safety and Health (NIOSH) to determine whether [Employee]’s brain cancer was “at least as likely as
not” related to his covered employment. However, the case was returned on August 7, 2006, based on
the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS) of certain
Nevada Test Site employees as an addition to the Special Exposure Cohort (SEC).
The claim forms submitted indicated that you had applied for an award under the Radiation Exposure
Compensation Act (RECA), but had declined the award. You also identified two other surviving
children of the employee, [Employee’s two non-claiming children], indicating that they accepted the
RECA award. Claim forms were not received from [Employee’s two non-claiming children].

On December 8, 2006, the district office received a response from the Department of Justice indicating
that on August 30, 2006, [Claimant #1], [Claimant #2], [Claimant #3 and Employee’s two non-
claiming children] were approved (as the eligible surviving beneficiaries of [Employee]) under
section 4 of the RECA for equal shares of the award in the total amount of $75,000.00, for the
condition of brain cancer. Further, it was stated that [Employee’s two non-claiming children]
accepted their 1/5th shares of the award and [Claimant #1], [Claimant #2] and [Claimant #3] rejected
their 1/5 shares of the RECA award in order to pursue a claim under EEOICPA.

On December 20, 2006, [Claimant #2] and [Claimant #3] signed statements indicating that they had
never filed tort suit or state workers’ compensation claim, nor had they ever received a settlement or
award from such based on the claimed exposure or illness. Further, they indicated that they have not
pled guilty to or been convicted of fraud in connection with an application for or the receipt of federal
or state workers’ compensation benefits. They also confirmed that at the time of the employee’s death,he had 5 children, and they were not under the age of 18 years, under the age of 23 and in college, or  incapable of self-support at that time. Finally, it was acknowledged that they have not received any  benefit under RECA.

On December 20, 2006, the Seattle district office issued a recommended decision to accept your
claims for survivor benefits under Part B of the Act. The district office concluded that [Employee] is
a member of the SEC based on his employment at the Nevada Test Site from February 7, 1955 to
December 31, 1962, for an aggregate of at least 250 work days; was diagnosed with brain cancer, a
specified cancer under the Act; and that [Claimant #1], [Claimant #2] and [Claimant #3] are each
eligible survivors entitled to equal shares of compensation in the total amount of $90,000.00 under Part
B of the Act. Additionally, the district office recommended denial of [Claimant #2] and [Claimant
#3]’s claims for survivor benefits under Part E of the Act, as they did not meet the definition of a
“covered child” under this part of the Act. The district office deferred a decision on [Claimant #1]’s
claim for survivor benefits under Part E of the Act, pending further development as to whether he
meets the criteria of a “covered child.”

On January 3, 2007, the FAB received a letter from [Claimant #1] in response to his eligibility as a
“covered child” under Part E of the Act. [Claimant #1] stated that at the time of the employee’s death
he was not under age 18, was not under the age of 23 and continuously enrolled full-time in school,
and he was capable of self-support.

OBJECTIONS
On February 5, 6 and 8, 2007, the FAB received your letters of objection to the recommended decision
in the form of a “Request for Clarification.” In summary, you indicated that there is conflicting
information provided in the recommended decision, specifically:

1.  Conclusions of Law – Statement 3: [Employee] is a covered employee and is now deceased, his
survivors are entitled to compensation in the amount of $150,000.00 per 42 U.S.C. § 7384s(a)(1).

2. Conclusions of Law – Statement 4: [Claimant #1], [Claimant #2] and [Claimant #3] are the
survivors of [Employee] per 42 U.S.C. § 7384s(e). [Claimant #1], [Claimant #2] and [Claimant #3]
are thus entitled to the above mentioned compensation totaling $150,000.00.

3. Notice of Recommended Decision – Paragraph 1: The District Office recommends that the
claims of [Claimant #1], [Claimant #2] and [Claimant #3] for benefits under Part B of the EEOICPA
be accepted in the amount of $90,000.00.

Based on these statements, you indicated that the district office first informed you that the entire
$150,000.00 would be distributed to the three of you, but that in a later conversation with the district
office the sum of $90,000.00 was mentioned, and that your telephone calls to resolve this have gone
unanswered. You asked for the applicable language or statute regarding this reduction of the total
amount to be distributed and did not wish for an oral hearing on this matter, requesting that the FAB
respond to your request for clarification of the matter.

Your objection relates to the definition of an eligible survivor and payment of compensation under Part
B of the Act, and how this is determined when some of the eligible survivors have accepted an award
under the RECA, while others have not.Under the EEOICPA, payment in the case of a deceased employee is made first to the employee’s  surviving spouse, or if there is no surviving spouse, in equal shares to all children of the covered  employee who are living at the time of payment. See 42 U.S.C. § 7384s(e)(1)(A) and (B).

Accordingly, all five living children of the employee meet this definition.

The Radiation Exposure Compensation Act states in section 6(e) that the acceptance of payment by an
individual under RECA shall be in full satisfaction of all claims of or on behalf of that individual
against the United States, or against any person with respect to that person’s performance of a contract
with the United States, that arise out of exposure to radiation, from open air nuclear testing, in the
affected area, or exposure to radiation in a uranium mine at any time during the period described in
section 5(a). Further, the EEIOCPA states that, except in accordance with § 7384u of EEOICPA, an
individual may not receive compensation or benefits under EEOICPA for cancer and also receive
compensation under RECA (42 U.S.C. § 2210 note) or § 1112(c) of Title 38. See 42 U.S.C. § 7385j.

Two of the five eligible children, [Employee’s two non-claiming children], elected to receive
payment as surviving beneficiaries under RECA versus pursing a claim under EEOICPA. As stated in
the above-cited statutes, they cannot also receive survivor compensation or benefits for the condition of
brain cancer under EEOICPA.

As the total potential award under Part B of the Act is $150,000.00, to be divided evenly among all
surviving children, each child is eligible for compensation in the amount of $30,000.00. The three
children who rejected their section 4 RECA awards therefore retain their potential eligibility for
compensation under EEOICPA, and their share of the total award is still governed by § 7384s(e)(1)(B),
which limits each survivor to 1/5th of the total compensation award of $150,000.00, which is
$30,000.00 each.

After considering the evidence of record and your objections to the recommended decision, the FAB
hereby makes the following:

FINDINGS OF FACT
1.  On November 21, 2001 and November 3, 2006, you filed claims for survivor benefits under
EEOICPA.

2.  You are three of the five surviving children of [Employee]. [Claimant #1] was born on April
15, 1949, [Claimant #2] was born on October 26, 1953, and [Claimant #3] was born on July 23, 1954,
and were 46, 42 and 41 years of age, respectively, at the time of [Employee]’s death on March 11,
1996.

3.  [Employee] was employed at the Nevada Test Site, a covered DOE facility, by DOE
contractors, from February 7, 1955 to at least December 31, 1962. This employment meets or exceeds
250 aggregate work days, and qualifies the employee as a member of the SEC.

4. The employee had a diagnosis of brain cancer, which is a specified cancer, on January 17,
1996, after starting work at a DOE facility.

5.  The evidence of record supports a causal connection between the employee’s cancer and his
exposure to radiation at a DOE facility.

6.  At the time of the employee’s death you were over the age of 18 years, not under 23 years ofage and enrolled full-time in school, and were not incapable of self-support.

7.  You have never filed a tort suit or state workers’ compensation claim, nor have you received a
settlement or award from a tort suit or state workers’ compensation claim based on radiation or brain
cancer. Further, you have not pled guilty to or been convicted of fraud in connection with an
application for or the receipt of federal or state workers’ compensation benefits, nor have you received
any award under RECA.
Based on the above noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW
On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the
SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the Nevada
Test Site between January 27, 1951 and December 31, 1962, for a number of work days aggregating at
least 250 work days, either solely under this employment or in combination with work days within the
parameters (excluding aggregate work day requirements) established for other classes of employees
included in the SEC, and who were monitored or should have been monitored. This class of SEC
became effective July 26, 2006. The employment evidence is sufficient to establish that [Employee]
was employed at the Nevada Test Site for an aggregate of at least 250 work days, between February 7,
1955 and December 31, 1962.

[Employee] is a member of the SEC pursuant to § 7384l(14)(C) and was diagnosed with brain cancer,
which is a specified cancer pursuant to 20 C.F.R. § 30.5(ff)(5)(iii)(L); and he is, therefore, a “covered
employee with cancer” under § 7384l(9)(A) of the Act. See 42 U.S.C. §§ 7384l(14)(C), 7384l(17) and
7384l(9)(A); 20 C.F.R. § 30.210(a)(1)(i).

[Claimant #1], [Claimant #2], [Claimant #3 and Employee’s two non-claiming children] are the
surviving children of [Employee], pursuant to 42 U.S.C. § 7384s(e)(1)(B) of the Act. [Employee’s
two non-claiming children] accepted their 1/5th shares of a total award of $75,000.00 under RECA,
and are therefore not eligible to receive a payment for the occupational illness of brain cancer under
EEOICPA. 42 U.S.C. § 7385j. [Claimant #1], [Claimant #2] and [Claimant #3] rejected an award
of their shares of compensation under RECA, and are therefore eligible for the payment of their 1/5th
shares of compensation under EEOICPA. Accordingly, [Claimant #1], [Claimant #2] and [Claimant
#3] are entitled to compensation in the amount of $30,000.00 each under Part B of the Act.

The term “covered child” under Part E is defined as a child of the employee who, as of the date of the
employee’s death had not attained the age of 18 years, had not attained the age of 23 years and was a
full-time student who had been continuously enrolled in one or more educational institutions since
attaining the age of 18 years, or had been incapable of self-support. See 42 U.S.C. § 7385s-3(d)(2).

The evidence of record shows that [Claimant #1], [Claimant #2] and [Claimant #3] were 46, 42, and
41 years of age, respectively, at the time of the employee’s death. There is no evidence showing that
the claimants were incapable of self-support at the time of the employee’s death on March 11, 1996.

The Seattle district office recommended that a determination on [Claimant #1]’s claim for survivor
benefits under this part of the Act be deferred, pending further development as to whether he met the
criteria of a “covered child.” Subsequently, [Claimant #1] provided a written statement to the FAB,
dated December 20, 2006, stating he does not meet any of the criteria of a “covered child” under §
7385s-3(d)(2) of the Act. The evidence of record and the recommended decision support that
[Claimant #2] and [Claimant #3] are not eligible as a “covered child” under Part E of the Act.For the forgoing reasons, the FAB concludes that the evidence of record is insufficient to allow
compensation under Part E. Accordingly, [Claimant #2] and [Claimant #3]’s claims for survivor
benefits under Part E of the Act are denied.

A decision on [Claimant #1]’s claim for survivor benefits under Part E is deferred, pending further
development and issuance of a recommended decision by the district office.

Seattle, Washington
Kelly Lindlief, Hearing Representative
Final Adjudication Branch

Page 917

EEOICPA Fin. Dec. No. 787-2005 (Dep’t of Labor, June 29, 2005)

NOTICE OF FINAL DECISION
This is the final decision of the Office of Workers’ Compensation Programs (OWCP) concerning your
claim for compensation under 42 U.S.C. § 7384 et seq., the Energy Employees Occupational Illness
Compensation Program Act of 2000, as amended, (EEOICPA or the Act). For the reasons stated
below, your claim for survivor benefits is accepted. Adjudication of your claim under § 7385s-3 is
deferred pending further development.

STATEMENT OF THE CASE
You filed a claim for compensation as the surviving spouse of [Employee], (the employee), under §
7384s(e) of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) on
August 3, 2001. On Form EE-3 (Employment History for Claim under EEOICPA) you stated that he
had been employed as a chemical operator by Mallinckrodt Chemical at the Mallinckrodt Destrehan
Street Plant located in St. Louis, Missouri from 1945 until an unknown date. The Department of
Energy (DOE) has identified the Mallinckrodt Destrehan Street Plant as a DOE facility from 1942
through 1962. On November 5, 2001, the DOE confirmed and verified the employee’s dates of employment at the Mallinckrodt Destrehan Street Plant from 1951 through 1966. You stated that as a
result of his exposure to radiation at the Mallinckrodt Destrehan Street Plant he developed brain cancer  first diagnosed in 1983. The employee died on September 12, 1983. You submitted a death certificate  for the employee and a record of your marriage to the employee.

Medical evidence was submitted in support of the claim. This evidence included the employee’s death
certificate that indicated the immediate cause of death on March 9, 1989 was pulmonary embolus and
listed other significant conditions as brain tumor. The evidence also included a pathology report
describing a specimen of the employee’s brain tumor obtained on or about August 26, 1983 that
provided a diagnosis of grade II astrocytoma, right frontal lobe (brain cancer). The diagnosis was
confirmed by a consultation report of Dr. Walter E. Stevens, MD completed on August 30, 1983.

The district office evaluated the employment and 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 brain cancer. A copy of the case file and the NIOSH Referral
Summary Document were forwarded to NIOSH on November 20, 2001.

The term “covered employee with cancer” may include 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). An employee who is a member of the Special Exposure
Cohort and has a specified cancer does not require a specific finding of “the cancer is at least 50% as
likely as not” related to the employment.

EEOICPA authorizes the addition of a class of employees to the Special Exposure Cohort (SEC) if the
Secretary of HHS finds:
(1) it is not feasible to estimate with sufficient accuracy the radiation dose that the
class received; and (2) there is a reasonable likelihood that such radiation dose may
have endangered the health of members of the class.

On April 11, 2005, The Secretary of HHS designated as members of the SEC all employees who
worked in the Uranium Division at the Mallinckrodt Destrehan Street facility between 1942-1948
based upon his finding that it was not feasible to estimate the radiation dose that the class received.
This designation became effective May 12, 2005.

NIOSH identified your claim as qualifying for inclusion in the SEC. Therefore, NIOSH discontinued
dose reconstruction under EEOICPA and the case file was returned to the district office on May 23,
2005.

On May 26, 2005, the Denver district office issued a recommended decision indicating the employee
was a member of the Special Exposure Cohort. The employee was diagnosed with a specified cancer.
As his surviving spouse you are entitled to compensation in the amount of $150,000 pursuant to 42
U.S.C. § 7384s(e)(1)(A).

On June 3, 2005, the Final Adjudication Branch received your written notification that you waive any
and all objections to the recommended decision.After reviewing the evidence in your claim, the Final Adjudication Branch makes the following:

FINDINGS OF FACT
1.  The employee died on September 12, 1983. You filed a claim for compensation, as the eligible
surviving spouse of the employee, on August 3, 2001.

2.  The Department of Energy (DOE) verified the employment dates for the employee at the
Mallinckrodt Destrehan Street Plant from January 1, 1943 until December 31, 1966.

3.  The employee was diagnosed with grade II astrocytoma, right frontal lobe (brain cancer) on or
about August 26, 1983. The initial diagnosis was made after he began employment at the Mallinckrodt
Destrehan Street Plant.

4.  The employee had employment aggregating to at least 250 work days between 1942 and 1948 in
the Uranium Division at the Mallinckrodt Destrehan Street Plant and is eligible for inclusion in the
Special Exposure Cohort as he was diagnosed with a specified cancer.

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

CONCLUSIONS OF LAW
1.  The employee qualified as a member of the Special Exposure Cohort (SEC) as he was a DOE
employee meeting the requirements pursuant to 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act.

2.  The employee had a specified cancer pursuant to § 7384l(17).

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

4.  You have established that you are the current eligible survivor of the employee pursuant to 42
U.S.C. § 7384s.

5.  You are entitled to compensation in the amount of $150,000 as outlined under 42 U.S.C. §
7384s(e)(1)(A) of the Act.

6.  Pulmonary embolus is not a covered condition under the Act as defined in § 7384l(15).

The undersigned has thoroughly reviewed the case record and finds that it is in accordance with the
facts and the law in this case. The evidence of record establishes that that the employee meets the
criteria of a covered employee with cancer as a qualified member of the Special Exposure Cohort with
a specified cancer. It is the decision of the Final Adjudication Branch that your claim for survivor
benefits is accepted.

Denver, Colorado
June 29, 2005Joyce L. Terry
District Manager

 

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