EEOICPA Covered Illnesses: Silicosis - Stephens & Stephens, LLP

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. EEOICPA Emphysema coverage may be available for eligible Nuclear Weapons Workers and their families.

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.

Silicosis

On this page we have collected specific references to Silicosis from the DEEOIC Procedure Manual 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.

From osha.gov:
Silicosis is caused by exposure to respirable crystalline silica dust. Crystalline silica is a basic component of soil, sand, granite, and most other types of rock, and it is used as an abrasive blasting agent. Silicosis is a progressive, disabling, and often fatal lung disease. Cigarette smoking adds to the lung damage caused by silica.

Effects of Silicosis

  • Lung cancer – Silica has been classified as a human lung carcinogen.
  • Bronchitis/Chronic Obstructive Pulmonary Disorder.
  • Tuberculosis – Silicosis makes an individual more susceptible to TB.
  • Scleroderma – a disease affecting skin, blood vessels, joints and skeletal muscles.
  • Possible renal disease.

Symptoms of Silicosis

  • Shortness of breath; possible fever.
  • Fatigue; loss of appetite.
  • Chest pain; dry, nonproductive cough.
  • Respiratory failure, which may eventually lead to death.

Procedure Manual:
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h. Developing for Toxic Substance Exposure. When developing Part E cases the CE uses established development techniques in addition to certain other steps unique to the Part E adjudication process. The Final Adjudication Branch (FAB) develops medical conditions and employment where possible to avoid issuing a remand order for further development if such development can be conducted at the FAB with little additional effort.

(3) Example. If the claimed illness is chronic silicosis, chronic beryllium disease (CBD), asbestosis, or another condition known to arise almost exclusively out of occupational exposure, but the evidence is not sufficient to accept the claim, the CE refrains from issuing a denial if additional development might establish the employee’s claim for benefits.

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10. Role of CE in DMC Referrals. The CE maintains responsibility for the case and uses the services of the DMC only for direction and clarification. Under Part E, the CE must have fully evaluated toxic exposure including the use of Site Exposure Matrix (SEM) or referral
to Industrial Hygienist (IH) prior to DMC referral.

b.Referral to DMC. When referring a case to a DMC, the CE must provide the following to the Medical Scheduler as a complete package:

(1) A Medical Consultant Referral Form (Exhibit 1). The CE completes the entire form (except the name and address of the DMC, which the Medical Scheduler enters), signs it and places it on the front of the referral package. It is crucial that the CE selects the most appropriate preferred medical specialty to perform the review. The CE considers the following in determining the preferred medical
specialty:

(a) Causation questions are usually best handled by occupational medicine specialists.
Occupational medical specialists can also evaluate the diagnosis and treatment of occupational lung
conditions, i.e. asbestosis, silicosis, CBD, pneumoconiosis, and COPD.

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3. Identifying Claimed Condition as Part B, Part E, or Both. The CE first determines whether the type of claim filed is for employee benefits (i.e., Form EE-1) or for survivor benefits (i.e., Form EE- 2). Then the CE reviews the condition(s) claimed, either marked or
written on the form, and determines whether the claimed condition is potentially covered under Part B, Part E, or both.

Those conditions covered under Part B are beryllium sensitivity, chronic beryllium disease, chronic silicosis, and cancer. Under Part E, all conditions (not symptoms of a condition) are covered, including those covered under Part B. This includes, but is not limited to, diagnosed cancers, respiratory illnesses, cardiac illnesses, and also mental illnesses that originate from a physical condition, such as a neurological condition.

In order to accurately identify a claimed condition as covered under Part B, Part E, or both, the CE must also consider the claimed
employment. Two examples describing this two-fold consideration are provided below.

a. Chronic Silicosis. For chronic silicosis coverage under Part B, the employee has to be a DOE or DOE contractor employee who was present for an aggregate of at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for tests or experiments related to an atomic weapon. However, for consideration of coverage under Part E, chronic silicosis is not subjected to this specific employment requirement; only that there is covered DOE contractor employment.

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12. Silicosis. Chronic silicosis is a non-malignant disease of the lung caused by prolonged exposure to silica dust. Under Part B, if all covered employment and exposure criteria are met, only chronic silicosis is covered. However under Part E, if all covered employment and exposure criteria are met, chronic silicosis, acute silicosis, accelerated silicosis, and complicated silicosis are covered.

If chronic silicosis, acute silicosis, accelerated silicosis, or complicated silicosis is claimed on the Form EE-1 or EE-2, then the CE develops for that specific silicosis under the appropriate Part(s) of the Act.

a. Silicosis Employment and Exposure Criteria, Part B. 42 U.S.C. §7384r(c) and (d) describes the employment requirements for an employee diagnosed with chronic silicosis. The CE reviews the evidence with the claim to ensure that the employee was:

(1) A DOE employee or a DOE contractor employee; and

(2) Present for an aggregate of at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for tests or experiments related to an atomic weapon (Part B claims only).

b. Medical Evidence. 42 U.S.C. §7384r(e) describes the medical evidence needed to establish a diagnosis of chronic silicosis. The CE verifies that all the necessary medical evidence is present in
accordance with the requirements listed in the statute, as follows:

(1) The initial occupational exposure to silica dust preceded the onset of chronic silicosis by at least 10 years; and

(2) A written medical narrative from a qualified physician that includes a diagnosis of chronic silicosis and the date of initial onset. In addition, one of the following is required:

(a) A chest radiograph, interpreted by a physician certified by the National Institute for Occupational Safety and Health (NIOSH) as a B-reader, classifying the existence of pneumoconiosis of category 1/0 or higher;

(b) Results from a computer assisted tomograph or other imaging technique that are consistent with chronic silicosis; or

(c) Lung biopsy findings consistent with chronic silicosis.

Upon review of the evidence submitted, the CE verifies the presence of the necessary medical and diagnostic evidence to support a diagnosis of chronic silicosis. If deficiencies are noted, the CE requests evidence from the claimant and/or the treating physician.

c. Silicosis Employment and Exposure Criteria, Part E. Silica exposure in the performance of duty is assumed if, and only if, the employee was present at a DOE or RECA section 5 facility where silica is known to have been present. The initial occupational exposure to silica dust needs to precede the onset of silicosis by at least 10 years. However, there are instances where an employee’s initial occupational exposure to silica dust can be great enough to result in the onset of silicosis prior to 10 years. Therefore the CE reviews the employment evidence and weighs the exposure evidence, accordingly, when making causation determinations.

The provisions regarding separate treatment for chronic silicosis set forth in §7384r of the Act for Part B do not apply to Part E. Therefore, for purposes of evaluating the employee’s Part E claim for silicosis, the element of causation is not presumed unless it was determined that the employee was entitled to compensation under Part B for silicosis (see §7385s-4(a)) or the Secretary of Energy has made a positive determination of causation (see §7385s-4(b)). In all other cases of claimed silicosis under Part E, the employment and exposure criteria applicable to all other claimed illnesses under Part E shall also apply to silicosis claims; that is, the employee must have been a DOE contractor employee and it must be at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s silicosis and it must be at least as likely as not that the exposure to such toxic substance was related to employment at a DOE facility.

Silicosis is a nonmalignant respiratory disease covered under RECA section 5. Therefore, for purposes of evaluating the Part E silicosis claim of a uranium employee covered under section 5 of RECA, the Department of Justice (DOJ) verifies covered employment and the CE makes the causation determination under §7385s-4(c) as to whether the employee contracted silicosis through exposure to a toxic substance at a section 5 mine or mill.

(1) Exceptions – Acute, Accelerated, and Complicated Silicosis. The extreme nature, function, or duration of exposure can trigger various forms of silicosis. The CE determines whether or not the employee’s occupation entailed such exposure that the disease manifested into an acute, accelerated, or complicated form due to such exposure. These forms of silicosis are not covered under Part B, but are covered under Part E based upon the CE’s review of the totality of the evidence.

(2) Employment and Exposure Evidence. The CE obtains evidence of employment and exposure from various sources. The Department of Justice (DOJ) verifies employment for RECA section 5 claimants. The CE obtains other evidence from Document Acquisition Request (DAR) records, DOE Former Worker Program (FWP) records, Site Exposure Matrices (SEM), employment records, Occupational History Questionnaire (OHQ) findings, affidavits, and from the claimant.

d. Medical Evidence, Part E. A physician’s written diagnosis and date of initial onset is required to establish silicosis.

When there is insufficient evidence of exposure, diagnostic testing, and/or diagnosis, the CE requests additional information from the claimant and affords the claimant sufficient time to respond.

Where no diagnosis exists, but the required employment element is met and evidence of a lung disease is presented, the CE requests additional medical evidence to establish the diagnosis of silicosis from either the claimant and/or the treating physician, or makes a referral to a DMC if the requested evidence is not submitted. The CE evaluates the DMC opinion and the evidence of file to make a factual determination as to the diagnosis and/or causation.

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b. Physician Review. Review by a physician is required, if the following evidence is insufficient:

(4) The medical record (e.g., any physician’s report, results from imaging studies, surgical, or pathology reports) without a definitive diagnosis of silicosis, possible asbestosis, restrictive lung disease, or pneumoconiosis;

(5) Death certificate with no mention of silicosis, possible asbestosis, restrictive lung disease, or pneumoconiosis;

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b. Section 5 of RECA.

(4) Covered Illnesses. Primary lung cancer, renal cancer, other chronic renal diseases including nephritis and kidney tubal tissue injury, and the following nonmalignant respiratory illnesses: pulmonary fibrosis, fibrosis of the lung, cor pulmonale related to pulmonary fibrosis, silicosis and pneumoconiosis.

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6. Linking Employee’s Death to an Occupational or Covered Illness. For a compensable claim under Part B, it must be shown that the employee was diagnosed with an occupational illness including: cancer, chronic beryllium disease or chronic silicosis. The evidence does not need to show that any one of these conditions was linked to the employee’s death, merely that one or more was diagnosed. This also applies to a covered illness that develops over the course of the employee’s life and resolves by way of medical treatment. However, for a compensable claim under Part E, the evidence must
establish that an occupational exposure to a toxic substance was at least as likely as not a significant factor in causing, contributing to, or aggravating the death of the employee.

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c. Partial Accept/Partial Deny. If the CE determines that no further development is necessary on a case file and concludes that some claim elements should be recommended for acceptance and some for denial, the CE issues a Recommended Decision that clearly sets forth those recommendations. The claimant is provided with a notice of his or her rights and a bifurcated wavier; which provides the claimant the opportunity to contest only the portion of his or her claim which was recommended for denial, or waive his or her right to object to the decision as a whole (see Exhibit 4).

For instance, if an illness that can be covered under both Part B and Part E of the EEOICPA (cancer, beryllium illness, chronic silicosis)
is claimed and meets the evidentiary requirements only under Part E but not under Part B, (or vice versa) the CE states that the Part E
benefits are being accepted and the Part B benefits are being denied.

(1) Example. A claimant files a claim for chronic beryllium disease (CBD) and submits medical evidence that contains a medical diagnosis of CBD that is sufficient to meet the Part E causation burden, but not the statutory criteria under Part B; the CE issues a Recommended Decision
awarding benefits under Part E and denying benefits under Part B. In the denial under Part B, the CE should clearly explain what evidence was lacking and why the case is being denied. The CE clearly delineates the benefits being awarded and denied under Part B and Part E.

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a. Multiple illness(s). If the claimant receives SWC benefits for a non-covered illness, or for both a covered and a non-covered illness arising out of and in the course of the same work-related exposure, the CE does not coordinate the Part E award.

For example, if the claimant settles a SWC claim for asbestosis and silicosis arising out of the same exposure and the amounts are not apportioned between the two illnesses, and the accepted covered illness for which the claimant is entitled to Part E benefits is only asbestosis, coordination of the Part E benefits is not required.

Final Decisions:
page 75
EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. The recommended decision was to deny your claim. You submitted objections to that recommended decision. The Final Adjudication Branch carefully considered the objections and completed a review of the written record. See 20 C.F.R. § 30.312. The Final Adjudication Branch concludes that the evidence is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE
On July 31, 2001, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that you were the daughter of [Employee], who was diagnosed with cancer, chronic silicosis, and emphysema. You completed a Form EE-3, Employment History for Claim under the EEOICPA, indicating that from December 2, 1944 to May 30, 1975, [Employee] was employed as a heavy mobile and equipment mechanic, for Alaska District, Corps of Engineers, Anchorage, Alaska.

On August 20, 2001, a representative of the Department of Energy (or DOE) indicated that “none of the employment history listed on the EE-3 form was for an employer/facility which appears on the Department of Energy Covered Facilities List.” Also, on August 29, 2001, a representative of the DOE stated in Form EE-5 that the employment history contains information that is not accurate. The information from the DOE lacked indication of covered employment under the EEOICPA. The record in this case contains other employment evidence for [Employee]. With the claim for benefits, you submitted a “Request and Authorization for TDY Travel of DOD Personnel” Form DD-1610, initiated on November 10, 1971 and approved on November 11, 1971. [Employee] was approved for TDY travel for three days to perform work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers beginning on November 15, 1971. He was employed as a Mobile Equipment Mechanic WG-12, and the purpose of the TDY was noted “to examine equipment for potential use on Blair Lake Project.” The security clearance was noted as “Secret.” You also submitted numerous personnel documents from [Employee]’s employment with the Alaska District Corp of Engineers. Those documents include a “Notification of Personnel Action” Form SF-50 stating that [Employee]’s service compensation date was December 2, 1944, for his work as a Heavy Mobile Equipment Mechanic; and at a WG-12, Step 5, and that he voluntarily retired on May 30, 1975.

The medical documentation of record shows that [Employee] was diagnosed with emphysema, small cell carcinoma of the lung, and chronic silicosis. A copy of [Employee]’s Death Certificate shows that he died on October 9, 1990, and the cause of death was due to or as a consequence of bronchogenic cancer of the lung, small cell type.

On September 6 and November 5, 2001, the district office wrote to you stating that additional evidence was needed to show that [Employee] engaged in covered employment. You were requested to submit a Form EE-4, Employment History Affidavit, or other contemporaneous records to show proof of [Employee]’s employment at the Amchitka Island, Alaska site covered under the EEOICPA. You did not submit any additional evidence and by recommended decision dated December 12, 2001, the Seattle district office recommended denial of your claim. The district office concluded that you did not submit employment evidence as proof that [Employee] worked during a period of covered employment as required by § 30.110 of the EEOICPA regulations. See 20 C.F.R. § 30.110.

On January 15 and February 6, 2002, you submitted written objections to the recommended denial decision. The DOE also forwarded additional employment information. On March 20, 2002, a representative of the DOE provided a Form EE-5 stating that the employment history is accurate and complete. However, on March 25, 2002, a representative of the DOE submitted a “corrected copy” Form EE-5 that indicated that the employment history provided in support of the claim for benefits “contains information that is not accurate.” An attachment to Form EE-5 indicated that [Employee] was employed by the Army Corps of Engineers for the period July 25, 1944 to August 11, 1952, at Fort Richardson, Alaska; and from August 11, 1952 to May 30, 1975 at Elmendorf Air Force Base, Alaska. Further, the attachment included clarifying information:

Our records show that the Corps of Engineers’ was a prime AEC contractor at Amchitka. [Employee]’s Official Personnel Folder (OPF) indicates that he was at Forth Richardson and Elmendorf AFB, both in Alaska. The OPF provided no indication that [Employee] worked at Amchitka, Alaska. To the best of our knowledge, Blair Lake Project was not a DOE project.

Also, on April 3, 2002, a representative of the DOE submitted a Form EE-5 indicating that Bechtel Nevada had no information regarding [Employee], but he had a film badge issued at the Amchitka Test Site, on November 15, 1971. The record includes a copy of Appendix A-7 of a “Manager’s Completion Report” which indicates that the U. S. Army Corps of Engineers was a prime AEC (Atomic Energy Commission) Construction, Operations and Support Contractor, on Amchitka Island, Alaska.

On December 10, 2002, a hearing representative of the Final Adjudication Branch issued a Remand Order. Noting the above evidence, the hearing representative determined that the “only evidence in the record with regard to the Army Corps of Engineers status as a contractor on Amchitka Island is the DOE verification of its listing as a prime AEC contractor . . . and DOE’s unexplained and unsupported verification [of [Employee]’s employment, which] are not sufficient to establish that a contractual relationship existed between the AEC, as predecessor to the DOE, and the Army Corps of Engineers.” The Remand Order requested the district office to further develop the record to determine whether the Army Corps of Engineers had a contract with the Department of Energy for work on Amchitka Island, Alaska, and if the work [Employee] performed was in conjunction with that contract. Further the Remand Order directed the district office to obtain additional evidence to determine if [Employee] was survived by a spouse, and since it did not appear that you were a natural child of [Employee], if you could establish that you were a stepchild who lived with [Employee] in a regular parent-child relationship. Thus, the Remand Order requested additional employment evidence and proof of eligibility under the Act.

On January 9, 2003, the district office wrote to you requesting that you provide proof that the U.S. Army Corps of Engineers had a contract with the AEC for work [Employee] performed on his TDY assignment to Amchitka Island, Alaska for the three days in November 1971. Further, the district office requested that you provide proof of your mother’s death, as well as evidence to establish your relationship to [Employee] as a survivor.

You submitted a copy of your birth certificate that indicated that you were born [Name of Claimant at Birth] on October 4, 1929, to your natural mother and natural father [Natural Mother] and [Natural Father]. You also submitted a Divorce Decree filed in Boulder County Court, Colorado, Docket No. 10948, which showed that your biological parents were divorced on October 10, 1931, and your mother, [Natural Mother] was awarded sole custody of the minor child, [Name of Claimant at Birth]. In addition, you submitted a marriage certificate that indicated that [Natural Mother] married [Employee] in the State of Colorado on November 10, 1934. Further, you took the name [Name of Claimant Assuming Employee’s Last Name] at the time of your mother’s marriage in 1934, as indicated by the sworn statement of your mother on March 15, 1943. You provided a copy of a Marriage Certificate to show that on August 19, 1949, you married [Husband]. In addition, you submitted a copy of the Death Certificate for [Name of Natural Mother Assuming Employee’s Last Name] stating that she died on May 2, 1990. The record includes a copy of [Employee]’s Death Certificate showing he died on October 9, 1990.

You also submitted the following additional documentation on January 20, 2003: (1) A copy of [Employee’s] Last Will and Testament indicated that you, [Claimant], were the adult daughter and named her as Personal Representative of the Estate; (2) Statements by Jeanne Findler McKinney and Jean M. Peterson acknowledged on January 17, 2003, indicated that you lived in a parent-child relationship with [Employee] since 1945; (3) A copy of an affidavit signed by [Name of Natural Mother Assuming Employee’s Last Name] (duplicate) indicated that at the time of your mother’s marriage to [Employee], you took the name [Name of Claimant Assuming Employee’s Last Name]. You submitted additional employment documentation on January 27, 2003: (1) A copy of [Employee]’s TDY travel orders (duplicate); (2) A Memorandum of Appreciation dated February 11, 1972 from the Department of the Air Force commending [Employee] and other employees, for their support of the Blair Lake Project; (3) A letter of appreciation dated February 18, 1972 from the Department of the Army for [Employee]’s contribution to the Blair Lake Project; and (4) Magazine and newspaper articles containing photographs of [Employee], which mention the work performed by the U.S. Army Corps of Engineers in Anchorage, Alaska.

The record also includes correspondence, dated March 27, 2003, from a DOE representative. Based on a review of the documents you provided purporting that [Employee] was a Department of Energy contractor employee working for the U.S. Army Corps of Engineers on TDY in November, 1971, the DOE stated that the Blair Lake Project was not a DOE venture, observing that “[i]f Blair Lake Project had been our work, we would have found some reference to it.”

On April 4, 2003, the Seattle district office recommended denial of your claim for benefits. The district office concluded that the evidence of record was insufficient to establish that [Employee] was a covered employee as defined under § 7384l(9)(A). See 42 U.S.C. § 7384l(9)(A). Further, [Employee] was not a member of the Special Exposure Cohort, as defined by § 7384l(14)(B). See 42 U.S. C. § 7384l(14)(B). Also, [Employee] was not a “covered employee with silicosis” as defined under §§ 7384r(b) and 7384r(c). See 42 U.S.C. §§ 7384r(b) and (c). Lastly, the recommended decision found that you are not entitled to compensation under § 7384s. See 42 U.S.C. § 7384s.

On April 21, 2003, the Final Adjudication Branch received your letter of objection to the recommended decision and attachments. First, you contended that the elements of the December 10, 2002 Remand Order were fulfilled because you submitted a copy of your mother’s death certificate and further proof that [Employee] was your stepfather; and that the letter from the district office on April 4, 2003 “cleared that question on page three – quote ‘Our records show that the Corps of Engineers was a prime AEC contractor at Amchitka.’”

Second, you stated that further clarification was needed as to the condition you were claiming. You submitted a death certificate for [Employee] showing that he died due to bronchogenic cancer of the lung, small cell type, and noted that that was the condition you alleged as the basis of your claim on your first Form, associated with your claim under the EEOICPA.

Third, you alleged that, in [Employee]’s capacity as a “Mobile Industrial Equipment Mechanic” for the Army Corps of Engineers, “he was required to work not only for the DOD (Blair Lake project) but also for DOE on the Amchitka program. For example: on March 5, 1968 he was sent to Seward, Alaska to ‘Inspect equipment going to Amchitka.’ He was sent from the Blair Lake project (DOD) to Seward for the specified purpose of inspecting equipment bound for Amchitka (DOE). Thus, the DOE benefited from my father’s [Corp of Engineers] expertise/service while on ‘loan’ from the DOD. Since the closure of the Amchitka project (DOE), the island has been restored to its original condition. . . . Therefore, my dad’s trip to Amchitka to inspect equipment which might have been used at the Blair Lake project benefited not only DOD but also DOE. In the common law, this is known as the ‘shared Employee’ doctrine, and it subjects both employers to liability for various employment related issues.”

On May 21, 2003, the Final Adjudication Branch received your letter dated May 21, 2003, along with various attachments. You indicated that the U.S. Army Corps of Engineers was a contractor to the DOE for the Amchitka Project, based upon page 319 of an unclassified document you had previously submitted in March 2002. Further, you indicated that [Employee] had traveled to Seward, Alaska to inspect equipment used at on-site operations for use on Amchitka Island by the Corps of Engineers for the DOE project, and referred to the copy of the Corps of Engineers TDY for Seward travel you submitted to the Final Adjudication Branch with your letter of April 18, 2003. Also, you indicated that [Employee] traveled to Amchitka, Island in November 1972 to inspect the equipment referenced above, which had been shipped from Seward, Alaska. You indicated that [Employee] was a mobile industrial equipment mechanic, and that his job required him to travel. You attached the following documents in support of your contention that the equipment [Employee] inspected could have included equipment belonging to the Corps of Engineers: Job Description, Alaska District, Corps of Engineers (previously submitted), and an Employee Performance Appraisal.

In addition, you indicated [Employee] was required to travel to remote sites throughout Alaska in order to perform his job with the Corps of Engineers, and in support of this you referred to your electronic mail sent to the Seattle District Office on January 7, 2003. You indicated that, since [Employee] was required to travel to Amchitka as a part of his regular duties as a mobile industrial equipment mechanic, it was possible that the equipment he inspected on the November 15, 1971 trip to Amchitka included equipment owned by the Corps as well as inspection of equipment owned by private contractors. You attached a copy of a document entitled, “Affidavit,” dated May 21, 2003, signed by Erwin L. Long. Mr. Long stated that he was head of the Foundations Material Branch for the Corps of Engineers at the time of his retirement, and that in 1971 he had been Head of the Rock Design Section. Mr. Long indicated that he did not spend any time on Amchitka Island, that he had known [Employee] since
1948, and that he “believe[d]” [Employee]’s travel to Amchitka for his job would have required him to track equipment belonging to the Corps of Engineers, and that [Employee] would also have “performed required maintenance on the equipment before preparing [it] for shipping off Amchitka Island.” Mr. Long also stated that [Employee] would not talk about his work on Amchitka since it was classified. Finally, you attached a TDY dated March 4, 1968, as well as a travel voucher/subvoucher
dated March 15, 1968, to support that [Employee]’s mission to Amchitka had been completed.

FINDINGS OF FACT
1. On July 31, 2001, [Claimant] filed a claim for survivor benefits under the EEOICPA as the daughter of [Employee].

2. [Employee] was diagnosed with small cell bronchogenic carcinoma of the lung and chronic silicosis.

3. [Employee] was employed by the U.S. Army Corps of Engineers for the period from July 25, 1944 to August 11, 1952, at Fort Richardson, Alaska; and from August 11, 1952 to May 30, 1975 at Elmendorf Air Force Base, Alaska.

4. [Employee]’s employment for the U.S. Army Corps of Engineers on TDY assignment at the Amchitka Island, Alaska site in November 1971 was in conjunction with a Department of Defense venture, the Blair Lakes Project.

CONCLUSIONS OF LAW
The EEOCIPA implementing regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law, in the recommended decision. 20 C.F.R. § 30.310. Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record. 20 C.F.R. § 30.312. The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant. 20 C.F.R. § 30.313. Consequently, the Final Adjudication Branch will consider the overall evidence of record in reviewing the written record.

In order to be awarded benefits under the Energy Employees Occupational Illness Compensation Program Act, the covered employee (or his/her eligible survivors), must first establish that the employee has been diagnosed with beryllium illness, cancer, or chronic silicosis. See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a). The evidence to show proof of an occupational illness is not in dispute in this case. The medical evidence establishes that [Employee] was diagnosed with cancer (bronchogenic cancer of the lung, small cell type) and chronic silicosis. Consequently, [Employee] was diagnosed with two illnesses potentially covered under the Act.

Employees of a DOE contractor (or their eligible survivors) are entitled under the EEOICPA to seek compensation for a cancer as a member of the Special Exposure Cohort (SEC) or through a determination that they incurred cancer that was at least as likely as not related to employment at a DOE facility. 42 U.S.C. §§ 7384l(14), 7384l(9)(B)(ii)(II). To be included in the SEC, a DOE employee, DOE contractor employee, or atomic weapons employee must have been employed for an aggregate of 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee or employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and have been exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. 42 U.S.C. § 7384l(14). To qualify as a covered employee with cancer, members of the SEC need only establish that they contracted a “specified cancer”, designated in section 7384l(17) of the EEOICPA, after beginning employment at a DOE facility or atomic weapons employer facility.

While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is. Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:
(A) An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.
(B) An individual who is or was employed at a Department of Energy facility by-

(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or
(ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The question presented in this case is whether [Employee], an employee of the U.S. Army Corps of Engineers was, during the time he spent on Amchitka Island, providing management and operation, management and integration or environmental remediation services under a contract between the DOE and the Army Corps of Engineers.

The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the U.S. Army Corp of Engineers, as a prime contractor for work on Milrow and Cannikin. The work to be performed under that contract consisted of “engineering, procurement, construction administration and inspection.”

[Employee]’s “Request and Authorization for TDY Travel of DOD Personnel,” initiated on November 10 and approved on November 11, 1971, was for the purpose of three days work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers. The purpose of the TDY was to “examine equipment for potential use on Blair Lake Project.”

You submitted the following new documents along with your letter to the Final Adjudication Branch dated May 21, 2003: Employee Performance Appraisal for the period February 1, 1966 to January 31, 1967; Affidavit of Erwin L. Long dated May 21, 2003; Request and Authorization for Military Personnel TDY Travel and Civilian Personnel TDY and PCS Travel, dated March 4, 1968; and Travel Voucher or Subvoucher, dated March 15, 1968. None of the documents submitted establish that [Employee] was on Amchitka Island providing services pursuant to a contract with the DOE.

The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island in November 1971 for the sole purpose of inspecting equipment to be used by the Department of Defense on its Blair Lake Project. The documentation of record refers to the Blair Lake Project as a Department of Defense project, and the DOE noted in correspondence dated March 27, 2003, that research was not able to verify that Blair Lake was a DOE project.

While the DOE indicated that [Employee] was issued a dosimetry badge, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee. Therefore, [Employee]’s presence on Amchitka Island was to perform work for the Department of Defense, and not pursuant to a contract between the DOE and the U.S. Army Corps of Engineers.

The evidence is also insufficient to show covered employment under § 7384r(c) and (d) of the EEOICPA for chronic silicosis. To be a “covered employee with chronic silicosis” it must be established that the employee was:

A DOE employee or a DOE contractor employee, who was present for a number of workdays aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for test or experiments related to an atomic weapon.

See 42 U.S.C. § 7384r(c) and (d); 20 C.F.R. § 30.220(a). Consequently, even if the evidence showed DOE employment (which it does not since [Employee] worked for the DOD), he was present only three days on Amchitka, which is not sufficient for the 250 days required under the Act as a covered employee with silicosis.

The undersigned notes that in your objection to the recommended decision, you referred to a “shared employee” doctrine which you believe should be applied to this claim. You contend that on March 5, 1968, [Employee] was sent to Seward, Alaska to “Inspect equipment going to Amchitka, which might have been used at the Blair Lake project [to benefit] not only DOD but also DOE.” No provision in the Act refers to a “shared employee” doctrine. Given the facts of this case, coverage could only be established if [Employee] was on Amchitka Island providing services pursuant to a contract with the DOE, evidence of which is lacking in this case.

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

Although you submitted medical evidence to show covered illnesses due to cancer and chronic silicosis, the evidence of record is insufficient to establish that [Employee] engaged in covered employment. Therefore, your claim must be denied for lack of proof of covered employment under the EEOICPA.

Seattle, Washington
Rosanne M. Dummer
Seattle District Manager, Final Adjudication Branch

page 175
EEOICPA Fin. Dec. No. 60165-2005 (Dep’t of Labor, May 10, 2005)

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). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final
Adjudication Branch accepts and approves your claims for the condition of chronic beryllium disease, and denies your claims for the condition of chronic silicosis, under Part B of the Act.

STATEMENT OF THE CASE
On August 4, 2004 ([Claimant #1]), August 31, 2004 ([Claimant #2]), and September 13, 2004 ([Claimant #3]), you each filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), claiming compensation based on chronic beryllium disease and chronic silicosis. [Claimant #1] also filed a Form EE-3 (Employment History) indicating that your father was employed various times at the Nevada Test Site from 1961 through 1969. A Department of Energy (DOE) representative verified that your father worked at the Nevada Test Site with the Reynolds Electrical and Engineering Company, Inc., from November 8, 1961 to January 17, 1963; January 30, 1963 to June 16, 1966; and February 15, 1967 to August 24, 1967. The Nevada Test Site is recognized as a covered DOE facility from 1951 to the present. See DOE, Office of Worker Advocacy, Facility List.

You provided medical records including chest x-rays from 1992, 1993 and 1994; a pulmonary function test (PFT) dated June 21, 1994; and a narrative report dated February 5, 1993. The medical records did not provide a diagnosis of chronic beryllium disease (CBD) or chronic silicosis, but the evidence of record was indicative of a possible diagnosis of chronic beryllium disease, in reference to the medical evidence required for a diagnosis of CBD prior to January 1, 1993, as defined under the Act.

On December 17, 2004, the Seattle district office sent a copy of your case file to Milton D. Rossman, M.D., a District Medical Consultant (DMC). By report dated February 17, 2005, Dr. Rossman indicated that the chest x-rays of February 6, 1993 and April 20, 1992, showed hilar calcifications and a left lower lobe granuloma sufficient to be consistent with CBD. Secondly, Dr. Rossman stated that the PFT on June 21, 1994, indicated a reduced FVC at 36%, a reduced FEV1.0 at 15%, for a combined FEV1.0/FVC of 31.25, showing evidence of severe obstruction, which could be consistent with CBD. Lastly, Dr. Rossman indicated that the history and physical dated February 5, 1993, showed that the employee was already on four drugs for his chronic respiratory disease, and there is no question that the employee had a clinical course consistent with a chronic respiratory disorder prior to January 1993.

You submitted a copy of your father’s death certificate, which indicates he was married to your mother, [Employee’s Spouse], at the time he passed away on September 15, 1994. You also provided a copy of your mother’s death certificate, which shows she passed away on July 7, 1997, and copies of your birth certificates showing that you are the surviving children of the employee. In addition, you each provided copies of your marriage certificates and other evidence to document your changes of name.

On April 11, 2005, the Seattle district office recommended acceptance of your claims for survivor benefits for the condition of chronic beryllium disease, concluding that you are survivors of a covered beryllium employee as defined by § 42 U.S.C. § 7384l(7). The district office also concluded that chronic beryllium disease is a compensable occupational illness pursuant to § 42 U.S.C. § 7384l(8)(B) and that the evidence you submitted met the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 42 U.S.C. § 7384l(13). The district office further concluded that you are each entitled to compensation in the amount of $50,000.00, pursuant to § 42 U.S.C. § 7384s(a)(1) and (e)(1). In addition, the district office concluded that the medical evidence of record was
insufficient for a diagnosis of chronic silicosis, as defined under section 42 U.S.C. § 7384l(15), and recommended denial of your claims for chronic silicosis.
On April 15, 2005 ([Claimant #3]), April 18, 2005 ([Claimant #2]), and April 19, 2005 ([Claimant #1]), the Final Adjudication Branch received your written notification that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT
1. On August 4, 2004 ([Claimant #1]), August 31, 2004 ([Claimant #2]), and September 13, 2004 ([Claimant #3]), you each filed a claim for survivor benefits under Part B of the EEOICPA for chronic beryllium disease (CBD) and chronic silicosis.

2. Your father was employed at the Nevada Test Site, a covered DOE facility, from November 8, 1961 to January 17, 1963; January 30, 1963 to June 16, 1966; and February 15, 1967 to August 24, 1967.

3. Your father is a covered beryllium employee who worked at the Nevada Test Site during a period when beryllium dust, particles or vapor may have been present.

4. Your father’s chest x-rays, pulmonary function test, and the physician’s history and physical report describing the clinical course of his chronic respiratory disease, are consistent with a diagnosis of chronic beryllium disease on April 20, 1992.

5. The onset of chronic beryllium disease occurred after your father’s exposure to beryllium in the performance of duty.

6. The medical evidence of record is insufficient for a diagnosis of chronic silicosis.

7. You submitted birth certificates establishing that you are the surviving children of the employee.

CONCLUSIONS OF LAW
In the absence of substantial evidence to the contrary, a covered beryllium employee shall be presumed to have been exposed to beryllium in the performance of duty if, and only if, the employee was employed at a Department of Energy facility, or present at a Department of Energy facility, or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy during a period when beryllium dust, particles, or vapor may have been present at such a facility. See 42 U.S.C. § 7384n(a)(1) and (2); 20 C.F.R. § 30.205(1), (2), (3).

In addition, in order to establish entitlement to benefits based on chronic beryllium disease, you must provide medical documentation in accordance with the following:
(B) For diagnoses before January 1, 1993, the presence of—

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

(ii) Any three of the following criteria:

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

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

(III) Lung pathology consistent with chronic beryllium disease.

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

(V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

See 42 U.S.C. § 7384l(13)(B).
Based on the employee’s covered employment at the Nevada Test Site, a DOE facility, during a period when beryllium dust, particles, or vapor may have been present, the employee was exposed to beryllium in the performance of duty.

The record contains medical documentation satisfying the criteria set forth under the EEOICPA for a diagnosis of chronic beryllium disease prior to January 1, 1993. Dr. Rossman’s report of February 17, 2005, provides a well-reasoned opinion regarding the chest x-rays, pulmonary function test, and narrative report describing the clinical course of your father’s chronic respiratory disease, concluding that the medical evidence is consistent with chronic beryllium disease.

Your father is a “covered beryllium employee” and he was exposed to beryllium in the performance of duty. See 42 U.S.C. § 7384l(7). In light of these findings, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for the condition of chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease prior to January 1, 1993. See 42 U.S.C. § 7384l(13)(B).

You also filed a claim based on chronic silicosis. The medical evidence of record is insufficient for a diagnosis of chronic silicosis, as defined under 42 U.S.C. § 7384r(c)(d) and (e). Therefore, your claim based on the condition of chronic silicosis is denied.

For the foregoing reasons, the undersigned hereby accepts your claims under Part B of the Act for survivor benefits for the condition of chronic beryllium disease, and denies your claims for benefits for the condition of chronic silicosis. You are each entitled to compensation in the amount of $50,000.00.
See 42 U.S.C. § 7384s(a)(1).

Seattle, WA
Kelly Lindlief, Hearing Representative
Final Adjudication Branch

page 203
EEOICPA Fin. Dec. No. 55834-2004 (Dep’t of Labor, September 21, 2004)

FINAL DECISION

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

STATEMENT OF THE CASE
On March 25, 2004, you filed a Form EE-1 (Claim for Benefits under EEOICPA), seeking compensation based on beryllium sensitivity and chronic silicosis. You indicated on Form EE-3 (Employment History) that you worked at the Beryllium Co., in Hazleton, PA, from 1970 to 1971, and at the Avco Corp. (Trexton) in Stratford, CT, from 1960 to 1970. The Beryllium Corporation of America (Hazleton) is recognized as a beryllium vendor from 1957 to 1979. See Department of Energy, Office of Worker Advocacy Facilities List.

By letters dated March 30, and April 30, 2004, the Cleveland district office notified you of the medical evidence you must submit to establish that you had been diagnosed with beryllium sensitivity and chronic silicosis. You were also advised that, to be considered for entitlement to compensation based on chronic silicosis, you would have to provide evidence that you had worked during the mining of tunnels at Department of Energy facilities in Nevada or Alaska for tests or experiments related to an atomic weapon. By letter dated May 28, 2004, you were again advised of the medical evidence you must submit to establish that you had been diagnosed with beryllium sensitivity. No medical or employment evidence was received.

On July 8, 2004, the district office recommended denial of your claim for benefits, concluding that you are not a covered employee with chronic silicosis because you were not exposed to silica in the performance of duty as required by 42 U.S.C. § 7384r(c). The district office also recommended denial of your claim because you did not submit sufficient medical evidence that you had been diagnosed with a covered occupational illness as defined 42 U.S.C. § 7384l(15). The district office further concluded that you were not entitled to compensation as set forth in 42 U.S.C. § 7384s.

FINDINGS OF FACT
1. On March 25, 2004, you filed a claim for benefits.

2. You did not provide the medical evidence required to establish a diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision issued by the district office on July 8, 2004. I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, the employees (or their eligible survivors), must establish that they have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and/or silicosis. See 42 U.S.C. § 7384l(15). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility. See 42 U.S.C. § 7384l(4)-(7), (9) and (11).

You filed a claim based on beryllium sensitivity and chronic silicosis. The regulations provide that a claim based on beryllium sensitivity must include an abnormal Lymphocyte Proliferation Test performed on either blood or lung lavage cells. See 20 C.F.R. § 30.207(b). Similarly, a claim based on chronic silicosis must include a written diagnosis of that condition, signed by a medical doctor, and must be accompanied by either a chest x-ray interpreted by a B reader, or the result of a CAT or other imaging technique, or a lung biopsy, consistent with silicosis. Although you were advised to provide the medical documentation required to establish that you had been diagnosed with beryllium sensitivity and chronic silicosis, no such evidence was received.

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

Therefore, your claim must be denied because you did not submit evidence sufficient to establish that you had been diagnosed with a covered occupational illness as defined by 42 U.S.C. § 7384l(15).

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

Cleveland, Ohio
Debra A. Benedict
Acting District Manager
Final Adjudication Branch

page 789
EEOICPA Fin. Dec. No. 10007316-2007 (Dep’t of Labor, January 31, 2008)

REMAND ORDER

This order of the Final Adjudication Branch (FAB) concerns 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. Pursuant to the authority granted by 20 C.F.R. § 30.317 (2007), the claim for impairment under Part E of EEOICPA based on pulmonary fibrosis and silicosis, moderate to severe, is remanded to the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) to obtain clarification from the District Medical Consultant (DMC) who performed the impairment evaluation, and for the issuance of a new recommended decision.

On December 13, 2004, [Employee] filed a claim under Part B of EEOICPA for pulmonary fibrosis and silicosis. On February 8, 2005, a final decision was issued awarding him monetary and medical benefits under Part B for the condition of pulmonary fibrosis and silicosis, moderate to severe, after confirmation was received from the Department of Justice that he was awarded $100,000.00 under section 5 of the Radiation Exposure Compensation Act (RECA) for the same conditions. Another final decision was issued by FAB on May 25, 2007, awarding him medical benefits for the treatment of pulmonary fibrosis and silicosis under Part E.

On April 16, 2007, [Employee] notified the district office of his desire to pursue a claim for impairment and wage-loss benefits under Part E. He elected to have his impairment evaluation conducted by a Department of Labor DMC in lieu of a physician of his choosing, so on October 24, 2007, the case file was referred to a DMC for an impairment evaluation. On November 13, 2007, the district office received a copy of that impairment evaluation. Evaluating the results of [Employee]’s
June 13, 2007 medical history, physical examination and pulmonary function test (PFT) results, as well as a review of the medical evidence in the file, the DMC determined that he was at maximum medical improvement and rated his whole body impairment as 0%, based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Chapter 5.

On November 14, 2007, the Denver district office issued a recommended decision under Part E to deny the claim for impairment benefits based on the DMC’s 0% impairment rating. The case was then forwarded to FAB for the issuance of a final decision.

Upon review of the impairment evaluation, FAB notes that the DMC obviously reviewed the medical evidence with the purpose of determining whether or not the conditions accepted by the Department of Justice under RECA, and subsequently by DEEOIC under Parts B and E of EEOICPA, were supported by the medical evidence prior to assigning a rating, because fully five pages of this ten-page evaluation were devoted to an analysis of what diagnoses were supported by the objective medical evidence and which were not. However, the role of a DMC in an impairment evaluation is not to question, or to seek to disprove, a medical finding made by an adjudicatory agency, especially if that agency must use a legal/administrative definition of a disease rather than one that is generally accepted in the medical profession.

As noted above, [Employee] received an award under section 5 of RECA from the Department of Justice, based on their rules and regulations for the medical conditions of pulmonary fibrosis and silicosis. The Department of Justice has the exclusive authority to adjudicate claims filed under section 5 of RECA, and determines which, if any, of the medical conditions compensable under section 5 have been established. Under Part B of EEOICPA, DEEOIC pays an additional $50,000.00 in monetary benefits to recipients of an award under section 5 of RECA and provides the employee (if the employee was the recipient of the award) with medical benefits to treat the conditions that were accepted by the Department of Justice. These same conditions are then automatically presumed under Part E of EEOICPA to have arisen of the exposure of the employee to toxic substances at a covered facility, i.e., to be “covered” illnesses.

The following excerpts from the impairment evaluation indicate the intent of the DMC was to disprove [Employee]’s covered illnesses, rather than to assess his lung function:

[Employee] has been accepted as having been exposed to the environmental hazards of uranium mining, primarily silicosis/pulmonary fibrosis. . . . There are certain conditions required for the diagnosis of pulmonary fibrosis/silicosis. [Employee] has no radiological findings of pulmonary fibrosis/silicosis, which would include bilateral nodules and perhaps calcification of hilar lymph nodes (the radiological findings are inconsistent with silicosis/pulmonary fibrosis; positive findings are necessary for a diagnosis of silicosis/pulmonary fibrosis).

* * *

[Employee] was a uranium worker/miner, but we have no information on his actual exposure (an actual exposure history is necessary for a diagnosis of silicosis/pulmonary fibrosis). Observers are cautioned not to attribute pulmonary function testing results to silicosis when the patient has other medical problems such as obesity ([Employee] is/was obese), has asthma ([Employee] has severe persistent asthma), hay fever ([Employee] has multiple environmental allergies and rhinitis), and a history of chest trauma ([chest x-ray] revealed old scapula fracture). Consequently, due to [Employee]’s history of severe persistent asthma, COPD resultant from the asthma and/or smoking history, obesity, environmental allegories, history of chest trauma, inadequate exposure history, and reversibility of pulmonary function results with a bronchodilator, it must be concluded that [Employee]’s pulmonary function testing results are not due to his exposures while working as a uranium miner.

* * *

If there is a component of his lung disease that is due to his pulmonary fibrosis/silicosis, it is minimal at this time and cannot be used as a basis for an impairment rating. . . .

[Employee]’s impairment rating was 0% whole person impairment, even though the DMC conceded that he had considerable respiratory impairment and opined that this impairment is due to severe and persistent asthma, obesity, history of chest trauma, and respiratory allegories (environmental allergies). The Federal (EEOICPA) Procedure Manual, Chapter E-900 (February 2006) precludes the apportionment of the permanent impairment of an organ or body function, which in this case is the lung, between an employee’s covered and non-covered illnesses. If any portion of the impairment is due to a covered illness, the entire percentage of impairment for that organ is compensable. In the present case, the DMC admits in her findings that [Employee] may have minimal impairment of the lung due to pulmonary fibrosis/ silicosis, and then proceeds to apportion the majority of that impairment to other non-covered illnesses and conditions, thereby justifying a 0% impairment based on the covered illnesses as found by both the Department of Justice and DEEOIC.

Pursuant to 20 C.F.R. § 30.317, FAB may “at any time before the issuance of its decision remand the claim to the district office for further development without issuing a decision.” Accordingly, FAB remands this case to the Denver district office of DEEOIC so it can ask the DMC who conducted [Employee]’s impairment rating to provide the percentage of impairment for the entire permanent loss of his lung function, without any apportionment. Following its receipt of this clarification, a new recommended decision should be issued on this claim for impairment benefits under Part E. If the DMC is unable to provide this clarification, then the case should be referred to another DMC for a proper impairment evaluation.

Denver, Colorado
Paula Breitling
Hearing Representative
Final Adjudication Branch

page 882
EEOICPA Fin. Dec. No. 53272-2004 (Dep’t of Labor, March 31, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE
On June 27, 2002, the Final Adjudication Branch issued a Final Decision concluding that [Employee] (the employee) was a covered employee with chronic silicosis as defined in § 7384r of the Act (and therefore entitled to compensation in the amount of $150,000), and that he was entitled to medical benefits related to chronic silicosis retroactive to September 17, 2001, pursuant to § 7384t of the Act. See 42 U.S.C. § 7384t. Payment of compensation was processed on July 25, 2002. The Final Adjudication Branch also denied the employee’s claims based on chronic beryllium disease and asbestosis.

On January 20, 2004, you filed a Form EE-2 (Claim for Survivor Benefits Under EEOICPA) seeking compensation as the spouse of the employee.

On March 11, 2004, the Seattle district office recommended denial of your claim for benefits. The district office concluded that the employee’s acceptance of compensation in the amount of $150,000 pursuant to § 7384s(a)(1) of the Act, was in full satisfaction of all claims of or on behalf of the employee against the United States, a Department of Energy contractor or subcontractor, beryllium vendor or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in § 7385 of the Act. See 42 U.S.C. §§ 7384s(a)(1), 7385b.

On March 29, 2004, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT
1. On September 17, 2001, the employee filed a claim for benefits under the EEOICPA based, in part, on the condition of chronic silicosis.

2. On June 27, 2002, the Final Adjudication Branch accepted the employee’s claim for chronic silicosis, and determined that he was entitled to compensation in the amount of $150,000 and medical benefits related to the treatment of chronic silicosis retroactive to September 17, 2001.

3. Payment of compensation in the amount of $150,000 was tendered on July 25, 2002.

4. On January 20, 2004, you filed a claim for survivor benefits.

CONCLUSIONS OF LAW
Section 7384s(a)(1) of the Act specifically provides that “[A] covered employee, or the survivor of that covered employee if the employee is deceased, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.” See 42 U.S.C. § 7384s(a)(1). The record in this case shows that, on July 25, 2002, the employee was issued compensation in the amount of $150,000 based on his diagnosis of chronic silicosis, a covered occupational illness under the Act.

Further § 7385b provides that the one-time payment under the Act is a full settlement of an EEOICPA claim:

The acceptance by an individual of payment of compensation under Part B of this subchapter with respect to a covered employee shall be in full satisfaction of all claims of or on behalf of that individual against the United States, against a Department of Energy contractor of subcontractor, beryllium vendor or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in section 7385 of this title.

42 U.S.C. § 7385b.

Since you are claiming eligibility as the surviving spouse of an employee who previously received $150,000 under the EEOICPA, no additional compensation is available to you. Therefore, your claim must be denied.

For the above reasons, the Final Adjudication Branch concludes that the evidence of record does not allow compensation under the Act. Accordingly, your claim for benefits is denied.

Seattle, Washington
Julie L. Salas
Hearing Representative, Final Adjudication Branch

 
 

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