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.

Skin Cancer

On this page we have collected specific references to Skin Cancer from the DEEOIC Procedure Manual and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.

from cancer.gov:
Skin cancer is the most common type of cancer. The main types of skin cancer are squamous cell carcinoma, basal cell carcinoma, and melanoma. Melanoma is much less common than the other types but much more likely to invade nearby tissue and spread to other parts of the body. Most deaths from skin cancer are caused by melanoma.

Procedure Manual:
page 239
c. Multiple Skin Cancers. When a claimant provides evidence that the covered employee had a relatively large number of skin cancers, the CE will proceed as follows.

(1) Each malignant skin neoplasm (e.g., basal or squamous cell cancer) will be considered as a separate primary cancer, unless it is noted in the medical record that the neoplasm is a metastatic lesion.

(2) For NIOSH dose calculations, the date of diagnosis and the location (e.g. arm, neck, back) of the skin cancer are important and should be indicated in the medical section of the NRSD.

page 240
c. Ethnicity.Employee’s ethnicity is required for skin cancer cases.

(1) The method used to gather this information is Form EE/EN-9 (Exhibit 4).

(2) Upon receipt of the information from the claimant, indicate the ethnicity using the designations shown in the NRSD.

(3) If the initial questionnaire is not returned by the claimant within 30 days, the CE must send a follow-up letter advising that the questionnaire must be returned within the next 30 days or the case will be administratively closed. After a total of 60 days has elapsed, the CE informs the claimant by letter that the case will be administratively closed.

If the CE can obtain the relevant information from the employee’s medical records or DAR, the NRSD may be completed using that information, and forwarded to NIOSH with an explanation of where the information was acquired.

page 258
17. Proving Causation Between Diagnosed Non-SEC Cancer and Covered Employment. Under Part B, a covered employee seeking compensation for cancer, other than as a member of the SEC seeking compensation for a specified cancer, is eligible for compensation only if DOL determines that the cancer was “at least as likely as not” (that is, a 50% or greater probability) caused by radiation doses incurred in the performance of duty while working at a DOE facility and/or an Atomic Weapons Employer (AWE) facility.

This includes radiation doses from medical X-rays for the pre- employment physical examination, annual physical examinations, and a termination (exit) physical examination, but does not include radiation to which the employee may have been exposed during airline flights, as such exposures are not incurred from activities at the sites.

EEOICPA does not include a requirement limiting the types of cancers to be considered radiogenic; CLL is considered non radiogenic pursuant to HHS regulation.

d. Guidelines. Specific guidelines concerning the calculation of the PoC for certain cancers are noted below.

(1) Carcinoma in situ (CIS), or cancers in their early stages, are not specifically included in NIOSH-IREP models. These lesions are becoming more frequently diagnosed, as the use of cancer screening tools, such as mammography, has increased in the general population. The risk factors and treatment for CIS are frequently similar to those for malignant neoplasms, and, while controversial, there is growing evidence that CIS represents the earliest detectable phase of malignancy. Therefore, for purposes of estimating PoC, carcinoma in situ (ICD–9 codes 230–234) should be treated as a malignant neoplasm of the specified site.

Current NIOSH guidance on which IREP models to run for in situ squamous cell carcinoma (SCC) skin cancer is contained in Table 4, “Cancer Models to be Used in the Calculation of Probability of Causation,” in the NIOSH-IREP Technical Documentation. The guidance in the table directs the use of two models for in situ skin cancer cases. For the ICD-9 code 232 series the CE must use the IREP models for both malignant melanoma and non-melanoma skin-squamous cell.

When a physician specifically identifies the in situ skin cancer as squamous cell carcinoma (SCC), the IREP guidance in the above-mentioned tables is not applicable and the CE must run the SCC model only. If not so identified, then the CE continues to run both models for in situ skin cancers.

(2) For other cancers requiring the use of NIOSH-IREP, the CE must assume that neoplasms of uncertain behavior (ICD–9 codes 235–238) and neoplasms of unspecified nature (ICD–9 code 239) are malignant, for purposes of estimating PoC.

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18.Calculation of PoC Using NIOSH-IREP Computer Program. DOL must calculate the PoC for all cancers, except CLL, using NIOSH-IREP. The risk models developed by the National Cancer Institute and the Center for Disease Control for NIOSH-IREP provide the primary basis for developing guidelines for estimating PoC under EEOICPA. They directly address 33 cancers and most types of radiation exposure relevant to claimants covered by EEOICPA.

b. Smoking History and Racial/Ethnic Identification. The risk model for lung cancer takes into account smoking history. The risk model for skin cancer takes into account the race or ethnic identification of the claimant. (However, it does not consider exposure to sunlight, since sunlight is not a toxic substance.)

None of the risk models explicitly account for exposure to other occupational, environmental, or dietary carcinogens. For cases with lung (primary or secondary, with unknown primary) or skin cancer, the CE must determine the smoking history or race or ethnic identification of the claimant.

Final Decisions:
page 08
EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004)

NOTICE OF FINAL DECISION

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on 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 reason discussed below, your claim for benefits is denied.

STATEMENT OF THE CASE
You filed a claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), on March 8, 2004. You indicated your employment classification or type of employment as Atomic Weapons Employer. On Form EE-3 (Employment History for Claim under EEOICPA) you stated that you had been employed as a supervisor for the installation of refrigeration equipment and other work while employed by the Way Engineering Company at Texas City Chemical, Inc., located in Texas City, Texas from 1952 until 1956. The Department of Energy (DOE) has identified Texas City Chemicals as an Atomic Weapons Employer (AWE) for the time period 1952 through 1956. You stated that as a result of your exposure at Texas City Chemicals while employed by Way Engineering Co. that you developed a skin disease that was possibly skin cancer.

The district office reviewed your application and evidence. In seperate letters dated March 15, 2004, the district office noted that you had not submitted medical or employment evidence in support of your claim. The letter addressing employment evidence indicated that while we had initiated a request for proof of employment with the DOE, they had been unable to verify your employment at Texas City Chemical, Inc. The district office asked you to provide evidence of your employment and listed a variety of documents such as time and attendance forms, wage statements, or other records that could be used to establish employment. The letter included Form EE-4 (Affidavit of Employment) that you could use to have other individuals complete statements in support of your employment allegations. The Social Security Administration (SSA) Form SSA-581, which can be used to verify your Social Security employment and employer history with your authorization, was included with the letter for your use if you wished the district office to request the information directly from SSA. A follow-up request for medical information was sent to you on May 26, 2004.

On June 8, 2004, you had a telephone conversation with a district office claims examiner. You stated that you had been employed by Way Engineering which was a contractor at the Texas City Chemical site and you were not employed directly by Texas City Chemical, Inc. The claims examiner informed you that employees of contractors or subcontractors of an Atomic Weapons Employer were not “covered employees” under the EEOICPA.

On June 9, 2004, the district office informed you in a letter that under the EEOICPA only employees hired directly by the AWE facility (such as Texas City Chemicals) were covered under the Act. The letter explained that the definition of an “atomic weapons employee” is an individual employed by an Atomic Weapons Employer during a period when the employer was processing or producing for the use by the United States material that emitted radiation and was used in the production of atomic weapons, excluding uranium mining and milling. The letter requested that you provide evidence that you were employed directly by Texas City Chemical, Inc. and explained that if additional employment evidence was not received within 30 days, a recommended decision would be issued based on the
information in file.

On June 15, 2004, the district office received medical evidence provided by your physician, Dr. Anh V. Nguyen, M.D. This evidence included a pathology report describing a specimen from skin on your left forearm obtained on May 4, 2004 and provided a diagnosis of malignant melanoma (skin cancer).

On July 12, 2004, the district office issued a recommended decision to deny your claim. The recommended decision stated that the evidence of record did not establish that you could be considered a “covered employee” as that term is defined under 42 U.S.C. § 7384l. The file was transferred to the Final Adjudication Branch (FAB) on that date.

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

You have not raised any objections to the district office’s recommended decision pursuant to § 30.310(a) of the implementing regulations and the 60-day period for filing such objections, as allowed under § 30.310(a) of the implementing regulations (20 C.F.R. § 30.310 (a)), has expired.

Based on the evidence contained in the case record, the Final Adjudication Branch makes the following:

FINDINGS OF FACT
1.You filed a claim for compensation on March 8, 2004.

2. You did not provide evidence sufficient to establish that you had covered employment with a DOE or AWE facility.

3. You provided medical evidence that established you had been diagnosed with malignant melanoma (skin cancer) on May 5, 2004.

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

CONCLUSIONS OF LAW
Section 7384l states:

(1) The term “covered employee” means any of the following:

(A) A covered beryllium employee.

(B) A covered employee with cancer.

(C) To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).

(2) The term “atomic weapon” has the meaning given that term in section 11 d.* of the Atomic Energy Act of 1954 (42 U.S.C. 2014(d)).

(3) The term “atomic weapons employee” means an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.

(4) The term “atomic weapons employer” means an entity, other than the United States, that—

(A) processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(B) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

(5) The term “atomic weapons employer facility” means a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.

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

You stated that you were employed by a subcontractor (The Way Engineering Co.) at an Atomic Weapons Employer facility (Texas City Chemicals, Inc.) and you were not an employee of Texas City Chemicals, Inc. EEOICPA coverage for Atomic Weapons Employers (AWE) is not extended to contractors and subcontractors of the AWE but only to individuals employed directly by the AWE. Your work at the AWE site is not qualifying because you worked for a company other than the AWE.
Therefore, you are not a “covered employee” under the Act.

The undersigned has reviewed the recommended decision issued by the district office on July 12, 2004, and finds that it is in accordance with the facts and the law in this case. It is the decision of the Final Adjudication Branch that your claim for compensation is denied.

Denver, Colorado
September 16, 2004
Janet R. Kapsin
Hearing Representative

page 189
EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted claim under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for skin lesions, skin cancer, an abdominal aortic aneurism, congestive heart failure, chronic obstructive pulmonary disease and interstitial basilar pleural parenchymal disease is accepted for medical benefits. However, the claim for blindness and atherosclerotic peripheral vascular disease under Part E is denied.

STATEMENT OF THE CASE
On July 15, 2008, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for blindness, emphysema, skin lesions, chronic obstructive pulmonary disease (COPD), congestive heart failure and an abdominal aortic aneurism. On August 21, 2008, [Employee] filed a second Form EE-1 for the additional conditions of interstitial and right basilar pleural parenchymal disease and atherosclerotic peripheral vascular disease. On the claim forms, [Employee] indicated that he had not received any settlement or award from a tort suit or state workers’ compensation claim in connection with the claimed conditions and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

On a Form EE-3, [Employee] stated that he was employed as an electrician, video technician and assistant estimator by E.I. Dupont at the Savannah River Site (SRS) for the period of January 1, 1952 to December 30, 1987. The Oak Ridge Institute for Science and Education (ORISE) database was checked and verified his SRS employment from June 18, 1952 to December 31, 1986, and Department of Energy (DOE) records identify [Employee]’s labor categories as instrument mechanic and project assistant.

The district office performed a search of the U.S. Department of Labor Site Exposure Matrices (SEM). Source documents used to compile the SEM establish that the labor category of “instrument mechanic” at the SRS could potentially be exposed to the toxic substances arsenic, asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide. The SEM lists skin cancer as a possible specific health effect of exposure to arsenic, and COPD as a possible specific health effect of asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide.

The district office sent [Employee]’s medical records to a District Medical Consultant (DMC) for review. In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and seven actinic keratoses. The DMC noted that the final pathology diagnosis of the keratosis of the index finger was consistent with an arsenical keratosis. The DMC therefore concluded that [Employee]’s exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin lesions of keratoses of his hands. The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found in cases of asbestos exposure. The DMC determined that it is at least as likely as not that [Employee]’s exposure to toxic substances while working at the SRS was a significant factor in contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal disease.

As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic substances. However, the DMC noted that the medical notes stated that [Employee]’s aneurism was unable to be surgically corrected as a result of other significant medical problems, one of which was his moderately severe COPD. As a result, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were a significant factor in aggravating his aneurism.

With respect to pulmonary hypertension, the DMC noted that it can be caused by chronic lung disease and certainly contributes to congestive heart failure (CHF). Therefore, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were significant contributing factors
in the development of his CHF.

The DMC noted, however, that ophthalmic notes diagnosed [Employee] with Fuch’s dystrophy, an inherited genetic eye disorder, as well as relatively common eye conditions, particularly common in people his age. As such, the DMC concluded that it is not at least as likely as not that [Employee]’s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his blindness.

And finally, the DMC noted that atherosclerotic peripheral vascular disease is generally not considered to be an occupational illness and that there are no accepted toxic substances that are known to cause, contribute to, or aggravate the condition. Accordingly, the DMC concluded that it was not at least as likely as not that [Employee]’s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his atherosclerotic peripheral vascular disease.

On October 16, 2008, the Jacksonville district office issued a recommended decision to accept [Employee]’s claim under Part E of EEOICPA for the conditions of skin lesions, skin cancer, an abdominal aortic aneurism, CHF and interstitial basilar pleural parenchymal disease, and to deny his claim for blindness and atherosclerotic peripheral vascular disease.

On October 24, 2008, FAB received written notification that [Employee] waived any and all objections to the recommended decision. FAB has performed a search of the SEM, which confirmed the findings of the district office. After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT
1. [Employee] was employed at the SRS from June 18, 1952 to December 31, 1986.

2. [Employee] was diagnosed with interstitial and right basilar pleural parenchymal disease, atherosclerotic peripheral vascular disease, blindness, emphysema, skin lesions, COPD, CHF and an abdominal aortic aneurism following exposure to toxic substances during covered employment at a DOE facility.

3. The medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]’s COPD, emphysema, interstitial basilar pleural parenchymal disease, skin cancer,
and skin lesions.

4. [Employee]’s COPD and emphysema were significant factors in aggravating his aneurism and contributing to his CHF.

5. There is no link between [Employee]’s blindness or atherosclerotic peripheral vascular disease and exposure to toxic substances at the SRS.

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

CONCLUSIONS OF LAW
Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a) (2009).

Under Part E of EEOICPA, a “covered illness” is an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2). As found above, the medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]’s skin cancers, skin lesions, CHF, abdominal aortic aneurism, interstitial basilar pleural parenchymal disease and COPD. That same evidence does not establish that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor
in aggravating, contributing to, or causing [Employee]’s blindness or atherosclerotic peripheral vascular disease.

Since the evidence does not establish that [Employee] has contracted blindness or atherosclerotic peripheral vascular disease through exposure to a toxic substance at a DOE facility, they cannot be considered covered illnesses under Part E. I hereby deny payment of medical benefits under Part E for the claimed blindness and atherosclerotic peripheral vascular disease. However, [Employee] is entitled to medical benefits for skin lesions, skin cancer, an abdominal aortic aneurism, CHR, COPD and interstitial basilar pleural parenchymal disease, effective July 15, 2008, under Part E of EEOICPA. See 42 U.S.C. § 7385s-8.

Armando J. Pinelo
Hearing Representative
Final Adjudication Branch

page 241
EEOICPA Fin. Dec. No. 10522-2004 (Dep’t of Labor, November 14, 2003)

NOTICE OF FINAL DECISION

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

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

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

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

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

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

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

FINDINGS OF FACT
1. You filed a claim for employee benefits on September 24, 2001.
2. You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.
3. You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA. See 42 U.S.C. §
7384l(9)(B).
4. You were diagnosed with multiple skin cancers.
5. Your cancer diagnoses were made after you began employment with the Department of Energy.
6. The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.
7. The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82. See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.
8. The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81. The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81. See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E.
9. After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation. Additional calculations of probability of causation were not required to be determined. See 42 C.F.R. § 82.10(k).

CONCLUSIONS OF LAW
The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn
area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face). Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4th layer shows cancer still present.”).

You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin).

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

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

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations. See 20 C.F.R. § 30.115. On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the
district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site. See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims
involving two or more primary cancers). The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability. Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

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

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

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

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

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

page 349
EEOICPA Fin. Dec. No. 62339-2005 (Dep’t of Labor, November 18, 2005)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE
On October 4, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity. A review of the medical evidence revealed that along with beryllium sensitivity you were diagnosed with multiple skin cancers: basal cell carcinoma (BCC) of the right temple, diagnosed July 25, 1995; BCC of the left face, diagnosed April 11, 2000; BCC of the right face, diagnosed March 12, 2001[1], and BCCs of the upper and lower face, diagnosed August 2, 2004.[2] On the Form EE-3, Employment History, you stated you were employed as a laborer by F. H. McGraw at the Paducah gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of January 1, 1951 to December 25, 1954. The evidence of record establishes you worked for F. H. McGraw at Paducah GDP for the claimed period of employment.

On February 1, 2005, a final decision and remand order was issued by the FAB accepting your claim for beryllium sensitivity and remanding your case for further development of chronic beryllium disease (CBD). The district office referred your claim to a district medical consultant (DMC) for review on September 14, 2005.

On the Form EE-1, you indicated that you were a member of the Special Exposure Cohort (SEC). You established that you were diagnosed with multiple skin cancers. To determine the probability of whether you sustained your cancer in the performance of duty, as required to establish entitlement under Part B of the Act, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for 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.” On August 24, 2005, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on August 29, 2005.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 55.97% combined probability that your cancers[3] were caused by radiation exposure at the Paducah GDP. 42 C.F.R. § 81.20. The Final Adjudication Branch confirmed the 55.97% combined probability.

On September 14, 2005, the Jacksonville district office issued a recommended decision finding that your skin cancer(s) were at least as likely as not caused by your employment at a Department of Energy (DOE) facility and concluding that that you are entitled to compensation in the amount of $150,000. The district office’s recommended decision also concluded that you are entitled to medical benefits beginning October 4, 2004 for skin cancer.

On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.
The district office had deferred adjudication of your claim for CBD until receipt of the DMC’s report.

On October 6, 2005, the FAB received the October 2, 2005 report from Dr. Robert E. Sandblom. Dr. Sandblom verified that the pulmonary function tests on record were consistent with chronic beryllium disease.

FINDINGS OF FACT
1. You filed a Form EE-1, for beryllium sensitivity and review of the medical records revealed evidence of skin cancer and possible chronic beryllium disease.

2. You were diagnosed with skin cancer (BCC) on July 25, 1995, April 11, 2000, and August 2, 2004 (x2).

3. You were employed at the Paducah GDP from January 1, 1951 to December 25, 1954.

4. The probability that your cancer was caused by radiation at the Paducah GDP is 55.97%.

5. On September 14, 2005, the Jacksonville district office issued a recommended decision.

6. On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.

7. On October 6, 2005, the FAB received a report from the DMC, confirming a statutory diagnosis of CBD.

CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision.

To qualify as a member of the SEC under the Act, the following requirements must be satisfied: The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee. . . . 42 U.S.C. § 7384l(14)(A).

The evidence shows that you worked at the Paducah GDP from January 1, 1951 to December 25, 1954, which equals more than 250 days prior to February 1, 1992. Therefore, you qualify as a member of the SEC.

However, in order to be entitled to benefits as a member of the SEC, you must have been diagnosed with a specified cancer as defined by the Act and implementing regulations. 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005). Skin cancers are not a specified cancer.

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); 42 C.F.R. Part 81. I conclude that your skin cancers were at least as likely as not caused by your employment at a Department of Energy (DOE) facility. 42 U.S.C. § 7384n(b). Therefore, you are a covered employee with cancer. 42 U.S.C. § 7384l(9)(B).

The medical evidence is sufficient to establish that you have CBD. Under Part B of the Act, CBD may be established by the following:

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

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

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

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

42 U.S.C. § 7384l(13).

The beryllium lymphocyte proliferation test (BeLPT) of July 28, 2004 was positive. Therefore, you have beryllium sensitivity, as previously established by final decision dated February 1, 2005. 42 U.S.C. § 7384l(8).

The DMC verified in his report of October 2, 2005 that pulmonary function tests on record were consistent with chronic beryllium disease, meeting criterion iii. Office policy allows the FAB to accept a claimed medical condition based on new evidence, if the case was in posture for acceptance of benefits for another condition.[4] Therefore, I conclude that you are a covered beryllium employee and that your chronic beryllium disease is a covered occupational illness. 42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207.

In accordance with Part B of the Act, you are entitled to $150,000 and medical benefits beginning October 4, 2004 for skin cancer and chronic beryllium disease. 42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL
Sidne Valdivieso
Hearing Representative

[1] Review of the pathology report shows this was not a BCC but rather a pilomatricoma, which may be either benign or malignant. The pathology report did not specify which. Therefore, this should not have been utilized in the dose reconstruction. However, you had an additional cancer that was not utilized by NIOSH in the dose reconstruction, the BCC of the right lower face, diagnosed August 2, 2004, that the DOL health physicist has determined could be substituted for the
pilomatricoma without negatively impacting the combined probability of causation.

[2] You did not file a Form EE-1 for skin cancer or chronic beryllium disease, but any written communication that requests benefits under the Act will be considered a claim, including the submission of new medical evidence for review.

[3] NIOSH computed the percentage of causation for four BCCs to arrive at 55.97%. When the percentage of causation is over 50% establishing that those cancers were at least as likely as not related to employment at a covered facility, calculation of the percentage of causation for the remaining cancers is not necessary.

[4] EEOICPA Bulletin No. 03-29 (issued June 30, 2003).

page 365
EEOICPA Fin. Dec. No. 64180-2005 (Dep’t of Labor, February 17, 2005)

NOTICE OF FINAL DECISION AND REMAND ORDER

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, the Final Adjudication Branch accepts your claim for compensation based on lung cancer. Additionally, for the reasons set forth below, this case is remanded to the district office regarding the issue of entitlement to medical benefits based on skin cancer.

On August 16, 2004, [Employee] filed a claim for compensation under Part B of the EEOICPA listing skin cancer of the ear, forehead, nose, arm, and neck as the medical conditions on which his claim was based. The employee provided medical documentation showing that he had been diagnosed with basal cell carcinoma of the right temple and the nasal tip on May 23, 1995; with basal cell carcinoma of the left ear on September 11, 1997; and with basal cell carcinoma of the forehead on January 20, 2003. Additional medical documentation was also provided to show that he had been diagnosed with cancer of the left lung on October 26, 2004. The employee had also submitted evidence showing that he was employed by several subcontractors at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH. That evidence, when considered in its totality, demonstrated that, during the period of January 1952 to June 1985, he worked at the Portsmouth GDP for the contractors listed below:

FROMTOMonths
worked
Grinnell (ITT)
September
1954*
August
1955
12.0
Julian SpeerSeptember
1979
July 198010.5
Mechanical Construction
July 1980January 19816.5
Dynamic Industrial
Construction
October 1981June 198545.0
TOTAL74

*September 1954 is the earliest date from which employment qualifies for purposes of Special Exposure Cohort Membership.
On November 30, 2004, the district office issued a recommended decision to accept the employee’s claim for compensation as a member of the Special Exposure Cohort, based on lung cancer, and deferred a decision regarding entitlement to medical benefits for skin cancer pending dose reconstruction. Unfortunately, [Employee] had died on November 26, 2004, and the Final Adjudication Branch (FAB) remanded his case to the district office for administrative closure and consideration of the claim you had filed. The remand order stated that the issue of entitlement to medical benefits under 42 U.S.C. § 7384s(b) was to be addressed in any future recommended decision.
On December 17, 2004, you filed a claim for benefits under the EEOICPA listing lung cancer as the medical condition on which your claim is based. The medical documentation of record shows that your husband was diagnosed with cancer of the left lung on October 26, 2004.
The evidence of record establishes that your husband was employed at the Portsmouth GDP as specified above. The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold
standby status. See DOE, Office of Worker Advocacy, Facility List.
On January 11, 2005, the Cleveland district office issued a decision concluding that your husband is a covered employee with cancer because he is a member of the Special Exposure Cohort who has been diagnosed with lung cancer, a specified cancer under 42 U.S.C. § 7384l(17). The district office recommends that you, as his surviving spouse, are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s for lung cancer. The recommended decision also concluded that, pursuant to 42 U.S.C. § 7384s(b), your husband is entitled to medical benefits, as described in 42 U.S.C. § 7384t, from August 16, 2004, to November 26, 2004, for lung cancer. That decision noted, as a Finding of Fact, that a decision regarding entitlement based on skin cancer would not be issued
because you had withdrawn your husband’s claim based on skin cancer.

On January 19, 2005, the FAB received written notification that you waive any and all objections to the recommended decision. I have reviewed the record on this claim and the recommended decision issued by the district office. I find that the recommended decision is in accordance with the facts and the law
in this case with regard to your entitlement to compensation based on your husband’s lung cancer and that payment will be made for treatment of that condition. For that reason, I find that you, as the surviving spouse, are entitled to $150,000 pursuant to 42 U.S.C. § 7384s. As provided by 20 C.F.R. § 30.400(a), payment will be made for treatment of your husband’s lung cancer, as described in 42 U.S.C. § 7384t, for the period of August 16, 2004, to November 26, 2004.

In reviewing your case the FAB notes that the district office accepted your letter of December 21, 2004, as a withdrawal of your husband’s claim for benefits based on skin cancer. However, 20 C.F.R. § 30.101(b) provides that a survivor may withdraw his or her claim by so requesting in writing to the Office of Workers’ Compensation Programs (OWCP) at any time before OWCP determines eligibility for benefits. The regulations contain no provision allowing a survivor to withdraw a claim previously filed by an employee.

The basic rules for obtaining medical care, 20 C.F.R. § 30.400(a), provide that a covered employee who fits into at least one of the compensable claim categories is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness, retroactive to the date the employee filed a claim for benefits under the EEOICPA. When a survivor receives payment, OWCP will pay for such treatment if the covered employee died before the claim was paid.

Because your husband has been found to fit into the compensable claim category of “covered employee with cancer,” and because you have been determined to be entitled to payment of compensation on that basis, entitlement to payment for treatment for the claimed skin cancers is an obligation of the OWCP if they are found to be occupational illnesses. In order to determine if payment for treatment of the skin cancers claimed by the employee is in order, a decision must be made as to whether or not those cancers are occupational illnesses.

For the reasons discussed above, your case is remanded to the district office for any necessary development, to include dose reconstruction as described in 42 U.S.C. § 7384n(c), and issuance of a new recommended decision as to whether or not any or all of the claimed skin cancers are occupational illnesses, and, if so, whether or not OWCP will pay for such treatment.

Cleveland, OH
Tracy Smart
Acting FAB Manager
Final Adjudication Branch

page 471
EEOICPA Fin. Dec. No. 41341-2005 (Dep’t of Labor, May 11, 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 (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication
Branch accepts and approves your claim for compensation and benefits, based on multiple myeloma, under Part B of the Act. Your claim under Part E of the Act, and your claim under Part B of the Act for skin and throat cancer, is deferred.

STATEMENT OF THE CASE
On February 6, 2003, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on cancer, specified as multiple myeloma, skin, and throat cancer. You also filed a Form EE-3 (Employment History), in which you indicated that you were employed at Oak Ridge, by “Keagan & Hughes,” from January 1, 1950 to February 10, 1951, at Paducah, Kentucky, from February 15, 1951 to March 23, 1953, and at the Hanford site from April 15, 1954 to January 21, 1955, and that you did not wear a dosimetry badge.

The employment evidence of record consists of affidavits, personnel information from the Atomic Energy Commission, earnings information from the Social Security Administration, and information from the Center to Protect Workers Rights. You provided an employment history affidavit from the business manager of L.U. # 237, Texarkana, TX/AR, who indicated he had been vice-president of local # 237, and therefore knew that you were employed by the following employers: (1) “Keagen & Hughes,” Oak Ridge, Tennessee, “AEC,” from January 1, 1950 to February 10, 1951; (2) M.W. Kellogg, Paducah, Kentucky, from February 15, 1951 to March 23, 1952; and (3) Kaiser Engineers, Hanford site, North Richland, Washington, from April 15, 1954 to January 21, 1955. An Atomic Energy Commission (AEC), Oak Ridge, Tennessee, Personnel Clearance Master Card shows that you were granted an emergency clearance, on June 26, 1951, as an employee of Kaighin & Hughes, a subcontractor with Maxon Construction Company, and you were terminated on October 9, 1951. A second AEC, Oak Ridge, Personnel Clearance Master Card shows that your security clearance was “reinstated” on October 17, 1951, the name of your employer was “F.H. McGraw & Company M.W. Kellogg,” and that you were terminated on October 29, 1952. The card further shows a transfer to Hanford on April 13, 1954.

A co-worker at the Oak Ridge Gaseous Diffusion Plant (GDP), also known as K-25, provided an employment history affidavit in which he indicated that he worked with you for “Kaighan & Hughes” at the Oak Ridge K-25 Plant from January 1, 1950 to February 10, 1951. A dispatch record from Local o. 237, shows that you were employed by Kaiser from March 31 to May 30, 1954. An Itemized Statement of Earnings obtained from the Social Security Administration (SSA) shows that you had earnings paid by M.W. Kellogg from October through December 1949, October through December 1951, January through June 30 1952, and January through March 1953. In addition, the SSA Itemized Statement of Earnings showed that you were paid earnings by Atlantic Industries, Incorporated, during the period from January through March 1950, and Kaiser Engineers during the period from April through September 1954. A letter provided, by the Business Manager of the Plumbers & Steamfitters Local 184, Paducah, Kentucky shows that the M.W. Kellogg Company was a subcontractor at the Paducah GDP, Paducah, Kentucky from 1951 to 1955. The record also contains a copy of a “Certificate of Amendment to the Articles of Incorporation of Kaighin & Hughes, Inc.” that indicates the shareholders authorized the name of the company to be changed to “Atlantic Industries, Inc.” by resolution dated May 17, 1968.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has contracted with the Center to Protect Workers’ Rights (CPWR) for assistance in obtaining records pertinent to construction and trade employees at DOE, atomic weapons employer (AWE) or beryllium vendor facilities. The CPWR is a research, development, and training arm of the Building and Construction Trades Department (BCTD) of the American Federation of Labor-Congress of Industrial Organizations
(AFL-CIO). The CPWR concluded that (1) Kaighin & Hughes was a subcontractor to Maxon and, as shown in a report to the President by the Atomic Energy Labor Relations Panel, Kaighin & Hughes was a primary contractor of K29 – K31 of the K25 GDP, and a contractual relationship between Kaighin & Hughes and AEC/DOE was also confirmed by a DOE representative who reported that Kaighin & Hughes, Inc. was a subcontractor to Maxon for construction of the K29, K31, and K33 buildings of the K25 GDP from 1947 to 1956. See Section 2 – CPWR Research Results. The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to 1987 and 1988 to the present (remediation); the Paducah GDP is recognized as a covered DOE facility from 1951 to July 28, 1998 and July 29, 1998 to the present (remediation); and the Hanford site is recognized as a covered DOE facility from 1942 to the present. See DOE, Office of Worker Advocacy, Facility List.

You indicated on your Form EE-3 that you were not monitored, through the use of dosimetry badges, for exposure at either the Oak Ridge GDP or Paducah GDP, and the information above shows that you were employed at the Oak Ridge GDP and Paducah GDP, respectively, from January 1 through October 9, 1951 and January 1 through October 29, 1952. However, the evidence shows that you worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges for your entire period of employment at Oak Ridge and for the period from July 1952 to October 29, 1952 at the Paducah GDP.

In addition to medical documentation showing diagnosis of skin cancer, you provided a narrative medical report by Joyce Feagin, M.D., dated January 11, 2001, that indicated you were diagnosed as having multiple myeloma.

On March 30, 2005, the Seattle district office issued a recommended decision that concluded you are a member of the special exposure cohort under Part B, as defined by 42 U.S.C. § 7384l(14)(A), you were diagnosed with multiple myeloma, a specified cancer under Part B as defined by 42 U.S.C. § 7384l(17), and that you are entitled to compensation under Part B in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1). The district office also concluded that you are entitled to medical benefits under Part B, retroactive to the date you filed you claim for benefits, February 6, 2003, as outlined under 42 U.S.C. § 7384t. The district office deferred adjudication of your claim for skin cancers pending completion of the report of radiation dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

On April 11, 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT
1. You filed a claim for benefits under the EEOICPA on February 6, 2003.

2. You were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952.

3. A DOE contractor or subcontractor employed you for a number of work days aggregating at least 250 work days before February 1, 1992, at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky.

4. You were diagnosed as having multiple myeloma, a specified cancer, on January 11, 2001.

5. You contracted multiple myeloma after having begun covered employment with a DOE contractor or subcontractor at the Oak Ridge GDP and Paducah GDP, and the onset of the illness was more than five years after your first exposure at a GDP.

CONCLUSIONS OF LAW
In order for an employee to be afforded coverage under the “special exposure cohort,” the employee must be a DOE employee who was employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – (i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of [the] employee’s body to radiation; or (ii) worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. See 42 U.S.C. § 7384l(14).

Further, a specified cancer is “A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note),” including multiple myeloma, provided the onset was at least five years after first exposure to radiation. See 42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(dd)(5)(i) (multiple myeloma). The medical evidence of record indicates that you were diagnosed with multiple myeloma on January 11, 2001, which was more than five years after you were first exposed to radiation at Oak Ridge.

Your employment history (including employment history affidavits, Social Security records, union dispatch records, security clearance records, and confirmation by the CPWR) shows that you were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952, a period exceeding 250 work days. However, employees who indicate on their Form EE-3 that they were not monitored by dosimetry while employed at the Paducah GDP are determined to have been engaged in covered employment beginning in July 1952. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2)(a) (June 2004). Therefore, your period of employment at the Paducah GDP, for purposes of coverage as a member of the special exposure cohort, must be calculated using a beginning date of July 1, 1952, and an ending date of October 29, 1952.

Thus, the evidence shows that you were employed by a DOE contractor or subcontractor for a number of work days aggregating at least 250 work days before February 1, 1992 at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky, “in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges,” and you are a “member of the Special Exposure Cohort.” See 42 U.S.C. § 7384l(14)(A).

You filed a claim based on multiple myeloma, skin, and throat cancer. The Final Adjudication Branch has reviewed the medical reports of record and found that you were diagnosed as having multiple myeloma on January 11, 2001. Consequently, you are a “covered employee with cancer,” and a member of the special exposure cohort who was diagnosed as having a “specified cancer” under the EEOICPA. See 42 U.S.C. §§ 7384l(9)(A), (14)(A), and (17)(A).

For the forgoing reasons, the Final Adjudication Branch hereby accepts and approves your claim for multiple myeloma. You are entitled to compensation under Part B of the Act in the amount of $150,000.00. See 42 U.S.C. § 7384s(a)(1). In addition, you are entitled to medical benefits for multiple myeloma under Part B of the Act, retroactive to February 6, 2003, pursuant to 42 U.S.C. § 7384t. Adjudication of your claim for skin cancers and throat cancer is deferred pending completion of the radiation dose reconstruction by NIOSH, and adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.

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

page 687
EEOICPA Fin. Dec. No. 62339-2005 (Dep’t of Labor, November 18, 2005)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE
On October 4, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity. A review of the medical evidence revealed that along with beryllium sensitivity you were diagnosed with multiple skin cancers: basal cell carcinoma (BCC) of the right temple, diagnosed July 25, 1995; BCC of the left face, diagnosed April 11, 2000; BCC of the right face, diagnosed March 12, 2001[1], and BCCs of the upper and lower face, diagnosed August 2, 2004.[2]

On the Form EE-3, Employment History, you stated you were employed as a laborer by F. H. McGraw at the Paducah gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of January 1, 1951 to December 25, 1954. The evidence of record establishes you worked for F. H. McGraw at Paducah GDP for the claimed period of employment.

On February 1, 2005, a final decision and remand order was issued by the FAB accepting your claim for beryllium sensitivity and remanding your case for further development of chronic beryllium disease (CBD). The district office referred your claim to a district medical consultant (DMC) for review on September 14, 2005.

On the Form EE-1, you indicated that you were a member of the Special Exposure Cohort (SEC). You established that you were diagnosed with multiple skin cancers. To determine the probability of whether you sustained your cancer in the performance of duty, as required to establish entitlement under Part B of the Act, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for 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.” On August 24, 2005, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on August 29, 2005.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 55.97% combined probability that your cancers[3] were caused by radiation exposure at the Paducah GDP. 42 C.F.R. § 81.20. The Final Adjudication Branch confirmed the 55.97% combined probability.

On September 14, 2005, the Jacksonville district office issued a recommended decision finding that your skin cancer(s) were at least as likely as not caused by your employment at a Department of Energy (DOE) facility and concluding that that you are entitled to compensation in the amount of $150,000. The district office’s recommended decision also concluded that you are entitled to medical benefits beginning October 4, 2004 for skin cancer.

On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision. The district office had deferred adjudication of your claim for CBD until receipt of the DMC’s report.

On October 6, 2005, the FAB received the October 2, 2005 report from Dr. Robert E. Sandblom. Dr. Sandblom verified that the pulmonary function tests on record were consistent with chronic beryllium disease.

FINDINGS OF FACT
1. You filed a Form EE-1, for beryllium sensitivity and review of the medical records revealed evidence of skin cancer and possible chronic beryllium disease.

2. You were diagnosed with skin cancer (BCC) on July 25, 1995, April 11, 2000, and August 2, 2004 (x2).

3. You were employed at the Paducah GDP from January 1, 1951 to December 25, 1954.

4. The probability that your cancer was caused by radiation at the Paducah GDP is 55.97%.

5. On September 14, 2005, the Jacksonville district office issued a recommended decision.

6. On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.

7. On October 6, 2005, the FAB received a report from the DMC, confirming a statutory diagnosis of CBD.

CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision.

To qualify as a member of the SEC under the Act, the following requirements must be satisfied:

The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee. . . . 42 U.S.C. § 7384l(14)(A).

The evidence shows that you worked at the Paducah GDP from January 1, 1951 to December 25, 1954, which equals more than 250 days prior to February 1, 1992. Therefore, you qualify as a member of the SEC.

However, in order to be entitled to benefits as a member of the SEC, you must have been diagnosed with a specified cancer as defined by the Act and implementing regulations. 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005). Skin cancers are not a specified cancer.

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); 42 C.F.R. Part 81. I conclude that your skin cancers were at least as likely as not caused by your employment at a Department of Energy (DOE) facility. 42 U.S.C. § 7384n(b). Therefore, you are a covered employee with cancer. 42 U.S.C. § 7384l(9)(B).

The medical evidence is sufficient to establish that you have CBD. Under Part B of the Act, CBD may be established by the following:

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

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

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

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

42 U.S.C. § 7384l(13).

The beryllium lymphocyte proliferation test (BeLPT) of July 28, 2004 was positive. Therefore, you have beryllium sensitivity, as previously established by final decision dated February 1, 2005. 42 U.S.C. § 7384l(8).

The DMC verified in his report of October 2, 2005 that pulmonary function tests on record were consistent with chronic beryllium disease, meeting criterion iii. Office policy allows the FAB to accept a claimed medical condition based on new evidence, if the case was in posture for acceptance of benefits for another condition.[4] Therefore, I conclude that you are a covered beryllium employee and that your chronic beryllium disease is a covered occupational illness. 42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207.

In accordance with Part B of the Act, you are entitled to $150,000 and medical benefits beginning October 4, 2004 for skin cancer and chronic beryllium disease. 42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL
Sidne Valdivieso
Hearing Representative

[1] Review of the pathology report shows this was not a BCC but rather a pilomatricoma, which may be either benign or malignant. The pathology report did not specify which. Therefore, this should not have been utilized in the dose reconstruction. However, you had an additional cancer that was not utilized by NIOSH in the dose reconstruction, the BCC of the right lower face, diagnosed August 2, 2004, that the DOL health physicist has determined could be substituted for the pilomatricoma without negatively impacting the combined probability of causation.

[2] You did not file a Form EE-1 for skin cancer or chronic beryllium disease, but any written communication that requests benefits under the Act will be considered a claim, including the submission of new medical evidence for review.

[3] NIOSH computed the percentage of causation for four BCCs to arrive at 55.97%. When the percentage of causation is over 50% establishing that those cancers were at least as likely as not related to employment at a covered facility, calculation of the percentage of causation for the remaining cancers is not necessary.

[4] EEOICPA Bulletin No. 03-29 (issued June 30, 2003).

page 878
EEOICPA Fin. Dec. No. 10078623-2009 (Dep’t of Labor, April 9, 2010)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted. No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation.

STATEMENT OF THE CASE
On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer. On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA. On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma.

On August 2, 2005, FAB issued a final decision accepting [Employee]’s claim for compensation under Part B for skin cancer. On January 29, 2007, FAB also issued a final decision accepting [Employee]’s claim under Part E for skin cancer, and under Parts B and E for lymphoma. On August 29, 2007, FAB issued a final decision denying [Employee]’s claim under Part E for his hearing loss. On December 27, 2007, FAB issued a final decision to accept [Employee]’s claim under Part E for chronic obstructive pulmonary disease (COPD). As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985.

On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim under Part E for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00. On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee]. Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed [Claimant] as his attorney-in-fact. On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]’s behalf.

On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].

On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee]. She also submitted a copy of [Employee]’s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse. The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.

Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]’s savings account via electronic funds transfer to the United States Treasury. There is no record indicating that these funds have been returned to the Treasury. On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death. On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim
for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.”

On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]’s surviving spouse. The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed. Accordingly, the district office concluded that survivor benefits were not payable.

OBJECTIONS
On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010. The representative argued that the adjudication of [Employee]’s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]’s death. The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits. (Exhibit 1). He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due. The authorized representative also argued that the claimant
was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived.

Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:

FINDINGS OF FACT
1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]’s claim under Part E for skin cancer and lymphoma, and for COPD. In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.

2. [Employee] died on August 11, 2008 as a result of lymphoma.

3. On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00

4. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].

5. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].

6. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.

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

CONCLUSIONS OF LAW
Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes: (1) that the employee would have been entitled to compensation for a covered illness; and (2) that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee. 42 U.S.C. § 7385s-3.

As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility. Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death. Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1).

The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid. 42 U.S.C. § 7385s-1(2)(b). The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re-determination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.” 20 C.F.R. § 30.505(c) (2009).

EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.” Federal (EEOICPA) Procedure Manual, Chapter 3-0800. The procedures further set forth a process for the review, identification, and for the issuance of decisions regarding overpayments.

In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]’s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E. As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled. Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined.

Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to compensation.

Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch

page 898
EEOICPA Fin. Dec. No. 105471-2009 (Dep’t of Labor, October 8, 2009)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the above claim under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim under Part B of EEOICPA for survivor benefits is denied. The claim under Part E for the employee’s whole body impairment is accepted in the amount of $12,500.00.

STATEMENT OF THE CASE
On October 9, 2001, [Employee] filed a Form EE-1, claiming under Part B for his bladder cancer. Medical records, including pathology reports, confirmed that the employee was diagnosed with bladder cancer on April 16, 1993, as well as a squamous cell carcinoma of the left ear on June 8, 1999, and squamous cell carcinoma of the right cheek on August 20, 2003.

The employee submitted a Form EE-3, on which he stated that he wore a dosimetry badge while working for the Union Carbide Corporation, a Department of Energy (DOE) contractor, from September 3, 1945 to July 31, 1981. DOE confirmed the employee’s employment for Carbon and Carbon Chemicals Company (a former name of Union Carbide) at the Oak Ridge Gaseous Diffusion Plant (K-25) in Oak Ridge, Tennessee, from September 17, 1945 to January 28, 1947, and from July 25, 1947 to July 31, 1981.

On July 3, 2002, FAB issued a final decision accepting the employee’s claim under Part B as a member of the Special Exposure Cohort (SEC) with bladder cancer, and awarded him $150,000.00 and medical benefits for that illness. On January 17, 2006, FAB issued another final decision under Part B, accepting the employee’s claim and awarding him medical benefits for his squamous cell carcinomas of the left ear and right cheek on the ground that those cancers were “at least as likely as not” (a 50% or greater probability) related to radiation exposure. And on July 11, 2008, FAB issued a final decision accepting the employee’s claim and awarding him medical benefits under Part E of EEOICPA for the same conditions—bladder cancer and squamous cell carcinoma of the left ear and right cheek.

On July 30, 2008, the employee requested impairment benefits for his covered illnesses under Part E of EEOICPA. However, he died on November 17, 2008, prior to the adjudication of his impairment claim.

On December 11, 2008, [Claimant] submitted a Form EE-2 to the district office, claiming for survivor benefits under Parts B and E of EEOICPA. In support of her claim, [Claimant] submitted a marriage certificate showing that she married the employee on April 10, 1950, and the employee’s death certificate showing his cause of death as fractures of the first and second cervical vertebrae. The death certificate also indicated that [Claimant] was the employee’s spouse on the date of his death.

As specified under Part E, permanent impairment is defined as a decreased function in a body part(s) or organ(s) established by medical evidence as the result of the covered employee contracting a covered illness through exposure to a toxic substance at a DOE facility. In a letter dated May 16, 2009, [Claimant] requested that the district office proceed with the impairment portion of her claim. By letter dated July 13, 2009, [Claimant]’s authorized representative requested that the impairment rating be performed by a district medical consultant (DMC). Therefore, the case was referred to a DMC for an impairment rating. In his report dated August 3, 2009, the DMC opined that the employee had reached maximum medical improvement for his conditions of bladder and skin cancers and had a whole body impairment rating for the accepted conditions of bladder cancer and skin cancers of 5%.

On September 2, 2009, the district office issued a recommended decision, concluding that under Part E, [Claimant] is entitled to $12,500.00 for the employee’s 5% whole body impairment due to his bladder cancer and skin cancers. The total percentage points were multiplied by $2,500 to calculate the amount of the recommended award. The district office also recommended denial of [Claimant]’s claim under Part B since the employee had previously received the compensation benefits payable under that Part.

On September 9, 2009, the Final Adjudication Branch received written notification that [Claimant] waived any and all objections to the recommended decision. After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT
1. On October 9, 2001, the employee filed a claim for benefits under EEOICPA.

2. The employee was diagnosed with bladder cancer, squamous cell carcinoma of the left ear, and skin cancer of the right cheek.

3. FAB issued a final decision under Part B that awarded the employee the full amount of monetary benefits payable for his bladder cancer, squamous cell carcinoma of the left ear and skin cancer of the right cheek. It also issued a final decision awarding the employee medical benefits under Part E for those same conditions.

4. The employee filed a request for impairment benefits, but died prior to the adjudication of that request. His cause of death was listed as cervical fractures of that C1 and C2 vertebrae.

5. [Claimant] filed a claim for survivor benefits and established that she was the employee’s spouse at the time of death and had been married to him for at least one year prior to that date.

6. The medical evidence establishes that prior to his death, the employee had reached maximum medical improvement and had a whole body impairment due to his bladder and skin cancers of 5%.

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

CONCLUSIONS OF LAW
The 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) (2009). If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted, or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).

[Claimant] meets the definition of a survivor under Part B and Part E of the Act. 42 U.S.C. §§ 7384s(e)(3)(A), 7385s-3(d)(1). However, with respect to her survivor claim under Part B, the record establishes that the employee already received the lump-sum benefit of $150,000.00 available under Part B. Therefore, because the lump-sum available under Part B has already been paid, [Claimant] is not entitled to any additional compensation under that Part, and her claim for compensation is denied. 42 U.S.C. § 7384s(a).

As for her claim under Part E of EEOICPA, if a covered Part E employee dies after filing a claim but before monetary benefits under Part E are paid, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the monetary benefits that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment. Under those circumstances, the survivor would not be entitled to the $125,000.00 lump-sum survivor payment under Part E because the employee’s death would not have been caused by the covered illness(es). 42 U.S.C. § 7385s-1(2)(B).

As found above, the employee in this matter died as a result of fractures of C1 and C2 vertebrae, which were not related to his work-related exposure to toxic substances. Therefore, [Claimant] is entitled to the amount of contractor employee compensation that the employee would have received if his death had not occurred before compensation was paid, in this case, his impairment benefits.

The amount of contractor employee compensation under Part E for a covered DOE contractor employee is based, in part, on a determination of the employee’s minimum impairment rating in accordance with the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, expressed as a number of percentage points. The employee (or the survivor in this case) is eligible to receive an amount equal to $2,500 multiplied by the number of percentage
points. 42 U.S.C. §§ 7385s-1(2)(B), 7385s-2(b).

The medical evidence shows that the employee had a whole body impairment of 5% as result of his accepted covered illnesses. [Claimant], standing in the shoes of the employee following her election, is therefore entitled to monetary benefits of $12,500.00 for impairment due to the employee’s bladder cancer and skin cancers. See 42 U.S.C. §7385s-2(a)(2).

Jacksonville, FL
Jeana F. LaRock
Hearing Representative
Final Adjudication Branch

page 901
EEOICPA Fin. Dec. No. 10014587-2006 (Dep’t of Labor, August 3, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for wage-loss benefits under Part E is accepted in the amount of $50,000. Adjudication of the claim for benefits based on skin cancer is deferred pending additional development.

STATEMENT OF THE CASE
On October 24, 2001, [Employee] filed claims for benefits under Part B and former Part D of EEOICPA. He identified microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, glomerularnephritis, irritable bowel disease, hypoglycemia, Eustachian tube rupture, migratory joint pain, vascular lesion, subdural hematoma, pulmonary emboli secondary to vasculitis, necrotizing glomerular nephritis and interstitial fibrosis as the claimed conditions resulting from his employment at a Department of Energy (DOE) facility. On July 5, 2007, [Employee] filed an additional claim under EEOICPA for skin cancer. Subsequent to his filing a claim under Part D, Congress amended EEOICPA by repealing Part D and enacting Part E, which is administered by the Department of Labor. The filing of a claim under former Part D is treated as a claim for benefits under Part E.

On March 27, 2003, FAB issued a final decision denying [Employee]’s Part B claim, as the evidence did not establish that he had been diagnosed with an illness that would qualify as an “occupational” illness under Part B. Part B is limited to the occupational illnesses of cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis. On August 4, 2006, [Employee] withdrew his claim based on the conditions of irritable bowel disease, hypoglycemia, Eustachian tube rupture, migratory joint pain, vascular lesion, subdural hematoma, pulmonary emboli, and necrotizing glomerular nephritis.

On August 31, 2006, FAB issued another final decision accepting [Employee]’s claim for medical benefits under Part E of EEOICPA for the “covered” illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis, and glomerulornephritis. This final decision also awarded him a lump-sum of $200,000.00 in impairment benefits based on those covered illnesses.

The evidence of record establishes that [Employee] was employed by a DOE contractor at the Lawrence Livermore National Laboratory (LLNL) from July 9, 1962 to October 14, 1966, at the Los Alamos National Laboratory (LANL) from October 24, 1966 to December 31, 1990, and at the Nevada Test Site (NTS) periodically from January 25, 1972 to September 10, 1990.[1]The record establishes that [Employee] was diagnosed with glomerulonephritis on June 8, 1992, with systemic necrotizing vasculitis and leukocytoclastic vasculitis on December 22, 1997, with microscopic polyangitis on June 24, 1999, and with pulmonary interstitial fibrosis on May 10, 2001. The evidence further establishes that he was exposed to toxic substances during the performance of his duties at these facilities, and that such exposure was a significant factor in aggravating, contributing to, or causing his glomerulonephritis, systemic necrotizing vasculitis and leukocytoclastic vasculitis, microscopic polyangitis and pulmonary interstitial fibrosis. [Employee] has a minimum impairment rating to the whole person as a result of these conditions of 80%, and 80 x $2,500.00 = his $200,000.00 impairment
award.

On October 23, 2006, [Employee] filed a claim for wage-loss benefits under Part E of EEOICPA and alleged that his wage-loss began in January 1991. He submitted Form W-2 Statement of Earnings from his employer indicating that he earned $30,508.97 in 1988, $31,256.65 in 1989, and $35,829.17 in 1990. On May 16, 2007, a representative from the Social Security Administration (SSA) indicated that you had earnings from 1978 to 1990 and no reported earnings after 1990.

[Employee] submitted medical records from his healthcare providers, which document the nature and extent of his covered illnesses. In a January 10, 2006 medical report, Dr. Karen B. Mulloy, M.D. indicated that [Employee] has not been able to work since 1991 due to the severity of his chronic renal disease and interstitial fibrosis. A July 20, 2006 report from a District Medical Consultant (DMC) confirms that [Employee]’s health is poor and continues to deteriorate such that his life is probably at risk.

On Form EE-1, [Employee] indicated that he was born on September 29, 1936. That date of birth is confirmed in the medical records from his healthcare providers and his personnel and occupational clinic records from the DOE facilities where he worked. The SSA indicates that the normal retirement age for purposes of the Social Security Act for a person born on September 29, 1936 is age 65.[2] On June 20, 2007, the district office issued a recommended decision to accept the claim for wage-loss benefits under Part E in the amount of $50,000.00. Accompanying the recommended decision was a letter explaining [Employee]’s rights and responsibilities in regard to the recommended decision. On July 5, 2007, FAB received his signed waiver of objections to the findings of fact and conclusions of law in the recommended decision. On the same date, FAB received his written declaration that he had not filed for or received a settlement, award, payment, or benefit from a tort suit or state workers’ compensation program for the medical conditions of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulonephritis. After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT
1. [Employee] filed a claim for benefits under Parts B and E of EEOICPA on October 24, 2001.

2. [Employee] was employed at LLNL, LANL and NTS intermittently from July 9, 1962 to December 31, 1990. During his employment at these facilities, he was employed by a DOE contractor.

3. On October 23, 2006, FAB accepted the claim for medical benefits under Part E for the covered illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis, and glomerulornephritis and awarded impairment benefits in the amount of $200,000.00 based on those conditions.

4. [Employee] was born on September 29, 1936 and attained normal retirement age for purposes of the Social Security Act on September 29, 2001.

5. [Employee] began experiencing wage-loss as a result of his covered illnesses in January 1991.

6. His average annual wage from 1988 to 1990 was $32,531.59.

7. [Employee] experienced 11 calendar years of qualifying wage-loss from 1991 to 2001 as a result of his covered illnesses, during which his wages did not exceed 50% of his average annual wage for the
36-month period immediately preceding the calendar month he first experienced wage-loss as a result of any covered illness.

8. [Employee] has not recovered compensation or benefits from a state workers’ compensation program or tort suit based on his accepted covered illnesses of polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis. Based on the above-noted findings of fact, the undersigned hereby makes the following:

CONCLUSIONS OF LAW
The regulations at 20 C.F.R. § 30.316(a) (2007) provide that if a claimant waivers any objections to all or part of the recommended decision, then FAB may issue a final decision accepting the recommended decision of the district office either in whole or in part. On July 5, 2007, FAB received [Employee]’s waiver of objections to the recommended decision

On October 23, 2006, FAB issued a final decision under Part E of EEOICPA accepting the claim for medical benefits for the covered illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis. In that decision, FAB found that [Employee]’s exposure to toxic substances during the performance of his duties at a DOE facility was a significant factor in aggravating, contributing to, or causing his microscopic polyangitis, systemic necrotizing vasculitis, eukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.

Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered illness” shall be entitled to wage-loss benefits if the employee sustained wage-loss as a result of any covered illness and meets certain qualifying criteria as to the percentage of the employee’s wage-loss. It provides that for each calendar year prior to normal retirement age during which as a result of any covered illness the employee’s wages did not exceed 50% of his average annual wage for the 36-month period immediately preceding the calendar year in which the employee first experienced wage-loss as a result of the covered illness, the employee shall receive $15,000. It further provides that for each calendar year prior to normal retirement age during which as a result of any covered illness, the employee’s wages exceeded 50% but did not exceed 75% of his average annual wage, the employee shall receive $10,000. See 42 U.S.C. §7385s-2(a)(2).

A determination regarding entitlement to wage-loss benefits must be based upon the totality of the evidence. I have reviewed the evidence of record and conclude that the evidence establishes that [Employee] experienced 11 calendar years of qualifying wage-loss prior to attaining his normal retirement age during which his wages did not exceed 50% of his average annual wage. Based on 11 calendar years of wage-loss at $15,000.00 per year, [Employee] qualifies for $165,000.00 in wage-loss benefits under Part E.

However, Part E also provides that the maximum aggregate compensation (other than medical benefits) an employee or survivor may receive under that Part shall not exceed $250,000.00. See 42 U.S.C. § 7385s-12. [Employee] has previously received $200,000.00 in impairment benefits under Part E, and the remaining amount he may recieve (other than medical benefits) is therefore $50,000.00. His potential wage-loss benefits of $165,000.00, coupled with the $200,000.00 he has already received in impairment benefits, exceeds the maximum aggregate compensation available to him under Part E.

Therefore, [Employee]’s claim for wage-loss benefits under Part E must be capped at the maximum aggregate compensation limit, and accordingly his your claim for wage-loss benefits under Part E is accepted for $50,000.00.

Washington, DC
William J. Elsenbrock
Hearing Representative
Final Adjudication Branch

[1] According to DOE’s website at http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm, LLNL is a covered DOE facility from 1950 to the present, LANL is a covered DOE facility from 1942 to the present, and NTSe is a covered DOE facility from 1951 to the present (retrieved August 3, 2007).

[2] See SSA’s website at http://www.socialsecurity.gov/retire2/agereduction.htm (retrieved August 3, 2007).

page 973
EEOICPA Fin. Dec. No. 72816-2007 (Dep’t of Labor, April 7, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the recommended decision to deny the claims is reversed and both claims for survivor benefits under Part B of EEOICPA are accepted.

STATEMENT OF THE CASE
On October 11, 2005, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA as the children of [Employee], hereinafter referred to as the employee. [Claimant #1 and Claimant #2] identified gall bladder and skin cancers and gastrointestinal hemorrhage as the claimed conditions for the employee. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not covered children as defined under Part E of EEOICPA.

Therefore, their claims for survivor benefits under Part E were denied. [Claimant #1] stated on the Form EE-3 that the employee was employed as a carpenter at the Nevada Test Site[1] from 1940 to 1961. The Department of Energy (DOE) verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953, and from April 30, 1957 to July 19, 1957 at the Nevada Test Site.

[Claimant #1 and Claimant #2] submitted a death certificate, which indicated the employee died on February 5, 1987, that the cause of death was gastrointestinal hemorrhage, and that he was widowed at the time of his death. A death certificate for [Employee’s Child], father’s name was [Employee], was submitted. [Claimant #1] submitted a birth certificate, which indicated the employee was her father.

A birth certificate for [Claimant #2] indicated the employee was his father. An Order for Name Change dated May 16, 1979 indicated that [Claimant #2]’s name was changed to [Claimant #2]. A March 10, 1987 autopsy report, from Drs. Stephen Ovanessoff and Roy I. Davis, indicated a final autopsy diagnosis of hepatocellular carcinoma with direct invasion of the gallbladder.

To determine the probability of whether the employee sustained his cancer in the performance of duty, the district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. The dose reconstruction was based on the periods of employment at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957. On July 3, 2007 and August 12, 2007, respectively, [Claimant #1 and Claimant #2] signed Form OCAS-1 indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information that they provided to NIOSH.

The district office received the final NIOSH Report of Dose Reconstruction dated August 24, 2007. The district office used the information provided in this report to determine that there was a 15.57% probability that the employee’s liver cancer was caused by radiation exposure at the Nevada Test Site. On August 31, 2007, the Seattle district office issued a recommended decision finding that the employee’s cancer was not “at least as likely as not” caused by employment at the Nevada Test Site. Therefore, the district office concluded that [Claimant #1 and Claimant #2] were not entitled to compensation under Part B of EEOICPA.

OBJECTIONS
On October 10, 2007, FAB received [Claimant #2]’s October 10, 2007 objection to the recommended decision and request for an oral hearing. On January 8, 2008, a hearing was held to hear the objections of [Claimant #1 and Claimant #2]. However, the equipment to record the hearing malfunctioned and another hearing was held by telephone on February 20, 2008.

During the January 8, 2008 hearing, [Claimant #2] submitted a four-page letter in support of his objections. This letter was read at both the January 8, 2008 and February 20, 2008 hearings. One of his objections was regarding the finding that [Claimant #1 and Claimant #2] were not “covered” children as that term is defined under Part E of EEOICPA. With reference to this objection, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E. Therefore, their claims for survivor benefits under Part E were denied. After FAB has issued a final decision pursuant to 20 C.F.R. § 30.316, only the Director for Division of Energy Employees Occupational Illness Compensation may reopen a claim and return it to FAB for issuance of new decision. 20 C.F.R. § 30.320. There is no intervening Director’s Order regarding [Claimant #1 and Claimant #2]’s claims for survivor benefits under Part E of EEOICPA. Therefore, no new final decision will be issued on their claims for benefits under Part E.

During the February 20, 2008 hearing, [Claimant #1] indicated that the employee lived on site during his employment at the Nevada Test Site. In support of this statement, she indicated that the employee “made a custom or habit of staying at a camp site near his work place if the distance was too far to travel.” In addition, she indicated that the employee had an old truck and that it was always breaking down.

Effective July 26, 2006, the Secretary of Health and Human Services designated certain employees of the Nevada Test Site in Mercury, Nevada as members of the Special Exposure Cohort (SEC), who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, based on work performed for the period from January 27, 1951 to December 31, 1962.

As noted above, DOE verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957 at the Nevada Test Site. However, in a review of records from DOE a Personnel Action Slip from Reynolds Electrical and Engineering was found that indicated a date of hire of April 3, 1957. A July 19, 1957 Radiation Exposure memo indicated that the employee was exposed to radiation from April 3, 1957 to June 30, 1957. Based upon the foregoing information, the correct periods of employment are March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957. In addition, the following documents were submitted by DOE:

1. A March 12, 1953 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.

2. A May 3, 1957 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.

3. A June 17, 1957 accident report indicated a mailing address in Mercury, Nevada. Pursuant to EEOICPA Bulletin No. 06-16 (issued September 12, 2006), if the employee was present (either worked or lived) on site at the Nevada Test Site for a 24-hour period in a day, the claims examiner is to credit the employee with the equivalent of three (8-hour) work days. If there is evidence that the employee was present on site at the Nevada Test Site for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement for the SEC. In addition, the Nevada Test Site includes the town of Mercury, which is located in the southwest corner of the site.

The preponderance of evidence of record establishes that the employee lived and worked at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957. These periods represent a total of 101 work days. Crediting the employee with three days of exposure for each day worked, the employee would have had 303 days of exposure during the periods from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.

There were other objections to the denial of survivor benefits under Part B of EEOICPA; however, they are not being addressed because the evidence of record is sufficient to accept [Claimant #1 and Claimant #2]’s claims for survivor benefits under Part B of EEOICPA.

On their claims for survivor benefits, [Claimant #1 and Claimant #2] indicated that neither they nor the employee had filed any lawsuits or received any settlements or awards for the employee’s claimed condition. In addition, [Claimant #1 and Claimant #2] indicated that there are no other living children of the employee. After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT
1. [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA.

2. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E of EEOICPA.

3. The employee was employed and lived at the Nevada Test Site for at least 250 workdays, by Reynolds Electrical and Engineering, from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957.

4. The employee was first diagnosed liver cancer on February 5, 1987.

5. The employee was widowed on his February 5, 1987 date of death.

6. [Claimant #1 and Claimant #2] are the surviving children of the employee. Based on these facts, the undersigned hereby makes the following:

CONCLUSIONS OF LAW
Section 30.316(b) of the EEOICPA regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the
hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.” 20 C.F.R. § 30.316(b). The undersigned has reviewed the record,
including [Claimant #1 and Claimant #2]’s objections, and concludes that no further investigation is warranted.

On July 12, 2006, the Secretary of Health and Human Services designated the following class of employees as an addition to the SEC: “Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site in Mercury, Nevada from January 27, 1951 to December 31, 1962 and who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.” This designation became effective July 26, 2006. See 71 Fed. Reg. 44298 (August 4, 2006).

The evidence of record supports that the employee worked for a DOE contractor and lived at the Nevada Test Site in excess of 250 workdays from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957, which is during the relevant period of the SEC class. This employment qualifies him for inclusion within the SEC. As a member of the SEC who was diagnosed with liver cancer, which is a “specified cancer” pursuant to 20 C.F.R. § 30.5(ff) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), he meets the definition of a “covered employee with cancer.” 42 U.S.C. § 7384l(9). [Claimant #1 and Claimant #2] are the employee’s only eligible surviving beneficiaries, as defined at 42 U.S.C. § 7384s(e)(1)(B). As an eligible survivor of a “covered employee with cancer, I conclude that their claims for survivor benefits should be accepted and that [Claimant #1 and Claimant #2] are each entitled to $75,000.00 for a total of $150,000.00 in compensation benefits under Part B of EEOICPA.

Washington, DC
Tom Daugherty
Hearing Representative
Final Adjudication Branch

[1] The Nevada Test Site is a DOE facility from 1951 to present according to the DOE Facility List (http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/findfacility.cfm).

page 1051
EEOICPA Fin. Dec. No. 2597-2002 (Dep’t of Labor, July 8, 2003)

NOTICE OF FINAL DECISION

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

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

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

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

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

Jacksonville, FL
July 8, 2003
Jeana F. LaRock
District Manager
Final Adjudication Branch

page 1151
EEOICPA Fin. Dec. No. 10047228-2008 (Dep’t of Labor, August 28, 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. For the reasons set forth below, your Part E claim for impairment benefits due to the employee’s skin cancers has been approved for $40,000.00. You have also been approved for the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006).

STATEMENT OF THE CASE
On August 15, 2001, [Employee], hereinafter referred to as the employee, filed an EE-1 in which he claimed for benefits under EEOICPA for basal cell carcinoma (BCC) and a deteriorating liver. On
November 26, 2001, the employee filed a Request for Review by Medical Panels/Physician Panel form for the same conditions with the Department of Energy (DOE). A death certificate verifies the
employee’s death on January 1, 2006. On January 30, 2006, you filed a Form EE-2 in which you claimed for survivor benefits, based on the employee’s BCC of the upper mid-chest, squamous cell
carcinoma (SCC) in situ of the right sideburn, SCC of the left ear, and pancytopenia.

In cases where the employee dies due to non-covered illnesses after filing a claim under Part E of EEOICPA but before payment is issued, the survivor may elect to receive the amount the employee
would have received under Part E if he or she had not died prior to payment. You chose to do so in a letter received June 16, 2008. While the employee did not specifically claim SCC, he did submit evidence supporting the diagnosis of SCC and a National Institute for Occupational Safety and Health (NIOSH) dose reconstruction was begun that incorporated both SCC and BCC prior to his death. This is sufficient to justify inclusion of the SCC in the impairment calculations.

On May 10, 2006, the FAB issued a final decision accepting your Part B claim for BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim. The decision found that the employee was diagnosed with BCC of the chest on November 23, 1992, BCC of the right sideburn on November 8, 1994, and SCC in situ of the left helical rim on January 19, 2000. The decision found that the employee had covered employment at the Oak Ridge Gaseous Diffusion Plant from December 28, 1945 to January 19, 1976, and at the Paducah Gaseous Diffusion Plant from January 20, 1976 to October 31, 1981. Personnel records verified that the employee worked for DOE contractor Union Carbide during his covered employment.

The employee’s death certificate identified the only cause of death as gastrointestinal hemorrhage and a date of death of January 1, 2006. The certificate identifies you as the employee’s spouse at the time of
death. No evidence was submitted supporting the claimed conditions contributing or causing the employee’s death. A marriage certificate verifies you were married to the employee for more than a year prior to his death.

A December 12, 2007 report by a District Medical Consultant (DMC) determined that toxic exposure at the covered facilities was not a significant factor in aggravating, contributing to, or causing the employee’s death.

On June 16, 2008, the district office received your request for an impairment evaluation. Attached to the request was medical documentation to assist a DMC in making an impairment evaluation. The district office received the DMC’s report dated July 25, 2008. Following review of the medical evidence, the DMC calculated the employee’s whole body impairment due to the accepted conditions of BCC of the sideburn and chest and SCC of the left ear in accordance with the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and mentioned specific tables and page numbers of the Guides in support of the rating. The DMC also concluded that the employee was at maximum medical improvement. The DMC determined that the employee’s whole body rating was 16% for the accepted conditions of three skin cancers.

On August 8, 2008, the Jacksonville district office issued a recommended decision finding that you are entitled to $40,000.00 in benefits for the employee’s 16% whole body impairment due to his accepted conditions of BCC of the sideburn and chest and SCC of the left ear. The total percentage points of 16% were multiplied by $2,500 to calculate the amount of the award.[1] Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.

On August 15, 2008, the FAB received written notification that you waived any and all objections to the recommended decision.

On August 15, 2008, you indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition and that you had neither pled guilty to nor been convicted of workers’ compensation fraud.

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

FINDINGS OF FACT
1. You filed a claim for survivor benefits under Part E of EEOICPA based on BCC of the upper mid-chest, SCC in situ of the right sideburn, SCC of the left ear, and pancytopenia.

2. Your claim for the employee’s BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim was previously accepted for medical benefits in a final decision issued by FAB under Part B on May 22, 2006. The accepted cancer of the sideburn was BCC rather than the claimed SCC.

3. The employee reached maximum medical improvement of his skin cancers at his death.

4. The DMC calculated a whole body impairment of 16% due to the employee’s skin cancers.

5. Exposure to a toxic substance at the covered facilities where the employee worked was not a significant factor in aggravating, contributing to, or causing the employee’s death. Also, the claimed illnesses did not cause or contribute to the employee’s death.

6. You were married to the employee for over a year prior to his death and were married to him at the time of his death.

7. You elected to receive the amount the employee would have received under Part E if he had not died of a non-covered illness prior to payment.

Based on the above-noted findings of fact, the FAB 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). 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).

A determination under Part B that a DOE contractor employee is entitled to compensation under that Part for an occupational illness shall be treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a).

The term “covered spouse” means a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death. 42 U.S.C. § 7385s-3(d)(1). You are the employee’s covered spouse.

In a case in which the employee’s death occurred after the employee applied under Part E and before compensation was paid to the employee, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive the amount of compensation that the employee would have received due to wage-loss and/or permanent impairment if the
employee’s death had not occurred before compensation was paid to the employee. 42 U.S.C. § 7385s-1(2)(B). You chose to receive the amount of impairment benefits the employee would have received for his skin cancers.

I conclude that the employee reached maximum medical improvement and that he has been determined to have had a whole body impairment of 16% as a result of his skin cancers. The amount of impairment benefits payable under Part E for a covered DOE contractor employee is based on a determination of the minimum impairment rating of the employee, in accordance with the Guides, expressed as a number of percentage points. The employee receives an amount equal to $2,500.00 multiplied by the number of percentage points. 42 U.S.C. § 7385s-2(a)(1), (b).

Therefore, I conclude that you are entitled to $40,000 in monetary benefits for the employee’s 16% whole body impairment due to his BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim. You are also entitled to reimbursement of the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006).

Jacksonville, FL
Jeana F. LaRock
Hearing Representative
Final Adjudication Branch

[1] 20 C.F.R. § 30.902 (2008).

page 1173
EEOICPA Fin. Dec. No. 10061144-2007 (Dep’t of Labor, April 30, 2008)

NOTICE OF FINAL DECISION

This is the final decision of the Final Adjudication Branch (FAB) on the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for the employee’s skin cancer under Part E of EEOICPA is denied.

STATEMENT OF THE CASE
On February 17, 2005, [Employee], hereinafter referred to as “the employee,” filed a Form EE-1 claiming for benefits for chronic obstructive pulmonary disease (COPD) and chronic beryllium disease (CBD), as well as a request for a review by a Physicians Panel for asbestosis, heart disease, COPD and CBD. On the Form EE-3, the employee alleged that he was employed as a driver in construction, an operator C & B, and a gulper at the Savannah River Site (SRS) for the period February 1, 1952 to January 31, 1957. He alleged that he worked in Building 221-F, the B-line, and the “sample aisle.” The district office used the Oak Ridge Institute for Science and Education (ORISE) database to confirm that the employee worked at the SRS from March 26, 1952 to May 17, 1957. However, no job titles were listed by ORISE.

On June 5, 2006, the employee filed a new Form EE-1 in which he claimed for skin cancer. A pathology report in the record establishes that the employee was diagnosed with squamous cell carcinoma (SCC) of the left helical rim on May 12, 2006.

On July 5, 2006, FAB issued a final decision accepting the employee’s claim for asbestosis and COPD as “covered” illnesses under Part E of EEOICPA and denying his claim for CBD and asbestosis under Part B. That final decision also denied the employee’s claim for CBD and asbestosis under Part E. As part of that decision, FAB remanded the employee’s claim to the Jacksonville district office for consideration of the newly submitted Form EE-1 claiming for skin cancer.

On January 5, 2007, [Claimant] filed a Form EE-2 in which she claimed for survivor benefits based on the skin cancer, COPD, asbestosis and pulmonary hypertension of her late spouse, the employee. In support of her claim, [Claimant] submitted her marriage certificate showing that she married the employee on July 9, 1955, and the employee’s death certificate showing that she was the employee’s spouse when he died on December 31, 2006 from cardio-respiratory arrest that was due to or as a consequence of refractory hypertension with shock.

In a February 13, 2007 report, a District Medical Consultant (DMC) reviewed the evidence in the record and concluded that the medical evidence was insufficient to establish that the employee’s claimed condition of skin cancer was at least as likely as not due to exposure to a toxic substance at a Department of Energy (DOE) facility and that such exposure was a significant factor in aggravating, contributing to, or causing the claimed condition of skin cancer.

On March 1, 2007, the Jacksonville district office sent [Claimant] a letter advising her of the deficiencies of her Part E claim for the employee’s skin cancer. In that letter, the district office advised [Claimant] that it was unable to establish exposure to a specific toxic substance and/or that the toxic substance(s) caused, contributed to, or aggravated the employee’s skin cancer. The district office explained the needed information and requested that she submit factual evidence of the types of toxic substances to which the employee was exposed and medical evidence from a physician that linked the employee’s exposures to the claimed condition and allowed time for her response. No response or additional information was received.

On June 20, 2007, FAB issued a final decision accepting [Claimant]’s claim for the employee’s death due to pulmonary hypertension under Part E of EEOICPA since it was 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 pulmonary hypertension, and that exposure to such toxic substances was related to employment at the DOE facility and was a significant factor that caused or contributed to the death of the employee. That decision also remanded her claim for the employee’s skin cancer under Part B for a new dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

The U.S. Department of Labor maintains a database called the Site Exposure Matrices (SEM). The district office performed a search of the SEM and found that there was insufficient evidence to
establish a causal relationship between exposure to a toxic substance while employed at the SRS and the claimed condition of skin cancer.

On December 20, 2007, FAB issued another final decision denying [Claimant]’s claim under Part B of EEOICPA since it was not at least as likely as not that the employee’s skin cancer was related to radiation doses incurred while working at a Department of Energy facility, based on the new dose reconstruction by NIOSH.

On February 14, 2008, the district office sent [Claimant] a second development letter regarding her claim for the employee’s death due to skin cancer under Part E that advised her that there was no evidence to support a relationship between the employee’s exposure to toxic substances and his skin cancer. In that letter, the district office explained the needed information, requested additional medical evidence (including the types of toxic substances to which the employee may have been exposured or any information from a physician that linked the employee’s toxic exposure to the claimed condition) and allowed time for [Claimant] to respond. No response or additional information was received.

On February 19, 2008, the district office issued a recommended decision to deny the claim for survivor benefits based on the employee’s death due to skin cancer under Part E of EEOICPA. The recommended decision informed [Claimant] that she had sixty days to file any objections, and she did not file any objections to the recommended decision within that period.

Following the issuance of the recommended decision, FAB performed another search of the SEM, which revealed that carbon has the potential to cause skin cancer and that the labor category of “operator” at the SRS could potentially be exposed to that toxic substance. The search also showed that arsenic benzo(a)pyrene and mineral oil, which can also cause skin cancer, were present in Building 221-F.

Thereafter, FAB referred the case file to a DMC for review of the new information and an opinion. The DMC reviewed the evidence in the record and concluded in an April 24, 2008 report that the available
information was insufficient to establish that workplace toxic exposures at a DOE facility were a significant factor that caused, contributed to, or aggravated the claimed condition of skin cancer, even
on an “at least as likely as not” basis. He further concluded that the medical evidence did not show that the employee’s skin cancer played any role in his death.[1]

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

FINDINGS OF FACT
1. The employee filed a claim for benefits under EEOICPA for skin cancer.

2. The employee was diagnosed with skin cancer.

3. The employee was a DOE contractor employee at the SRS from March 26, 1952 to May 17, 1957.

4. The employee died on December 31, 2006 from cardio-respiratory arrest due to or as a consequence of refractory hypertension with shock.

5. [Claimant] filed a claim for survivor benefits under EEOICPA based on the employee’s death due to skin cancer.

6. [Claimant] was the employee’s spouse at the time of his death and for at least one year prior to his death.

7. The medical evidence is insufficient to establish a causal link between the employee’s skin cancer and exposure to a toxic substance.

Based on the above-noted findings of fact, FAB also 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, FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).

[Claimant] meets the definition of a survivor under Part E that appears at 42 U.S.C. § 7385s-3(d)(1). However, a survivor is only entitled to compensation under Part E if the employee would have been entitled to compensation under Part E for a covered illness and if it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the illness and death of the employee. 42 U.S.C. § 7385s-4(c)(1).

The evidence does not establish that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s skin cancer. Therefore, I conclude that [Claimant] is not entitled to benefits for the employee’s death due to skin cancer under Part E because there is insufficient evidence to prove that the employee’s skin
cancer was related to toxic exposure at a DOE facility.

Jacksonville, FL
Jeana LaRock
Hearing Representative
Final Adjudication Branch

[1] The DMC was specifically asked, “Is it 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 claimed condition of skin cancer?”

page 1272
EEOICPA Fin. Dec. No. 10059726-2007 (Dep’t of Labor, December 12, 2007)

NOTICE OF FINAL DECISION

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT
1. On November 9, 2006, the employee filed for benefits under Parts B and E of EEOICPA based on choroid melanoma.

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

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

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

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

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

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

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

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

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

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

Denver, CO
Paula Breitling
Hearing Representative
Final Adjudication Branch

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

page 1287
EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for wage-loss benefits is accepted under Part E for calendar years 2005, 2006, 2007 and 2008.

STATEMENT OF THE CASE
On September 27, 2006, the employee filed a Form EE-1 claiming benefits under EEOICPA for non-Hodgkin’s lymphoma and skin cancer. On April 25, 2008, FAB issued a final decision accepting the claim under Part E based on six primary skin cancers (squamous cell carcinoma or SCC) in situ of the right eyelid, basal cell carcinoma (BCC) of the shoulder, BCC of the chest, SCC of the right lower eyelid, and SCC of the cheek. In that final decision, FAB determined that he was a covered Department of Energy (DOE) contractor employee at the Mound Plant, a DOE facility, from November 23, 1966 to September 1, 1967.

On July 9, 2008, the employee filed a claim for wage-loss benefits under Part E, stating that he began to lose wages as a result of his covered illness in the first quarter of 2005. He also submitted medical
reports from Dr. Nicholas T. Ilif dated August 18, 2008 and November 18, 2008, who stated that as a result of his cancers and consequential conditions, he began incurring wage-loss in February 2005 and took early retirement in November 2007.

On November 7, 2008, the employee filed another claim and identified additional skin cancers. On April 16, 2009, FAB issued a final decision accepting his claim under Part E based on these additional skin cancers (SCC of the left lower eyelid, SCC of the tip of the nose, SCC of the right preauricular).

On July 30, 2009, the district office accepted that the employee had consequential conditions of blindness of the right eye, photophobia and right eye pain.

On August 7, 2009, the district office issued a recommended decision to deny the claim under Part B for multiple skin cancers and large B-cell lymphoma, and under Part E for lymphoma. The district office further recommended that the claim for impairment benefits based on the employee’s skin cancers be approved under Part E, based on a whole-person impairment rating of 24%. With respect to the employee’s wage-loss claim, the district office recommended that it be accepted for the period 2005 through 2008. The district office determined that he had an average annual wage (AAW) of $66,801.21 in the 36 months prior to February 2005. This figure was based on his earnings as reported in annual tax returns. Specifically, the district office combined the employee’s total “dividend” income reported annually on Line 1 of IRS Schedule K-1 (Shareholder’s Share of Income, Credits, Deductions, etc.), which lists “Ordinary income from trade or business activities” as 100% Shareholder of [Employee’s company], with the amount listed in Box 1 (wages, tips, other compensation) of Form W-2 (Wage and Tax Statement), which is the salary he paid himself as an employee of [Employee’s company]. The district office included his dividend income because he explained that these were “pass through” earnings he paid to himself as the owner of 100% of the shares of [Employee’s company], which is classified as a “subchapter S” corporation for purposes of
the Internal Revenue Code. The district office’s AAW calculation made no deduction for the health insurance premiums the employee paid out of his S corporation dividend income. Using this method, the district office determined that his inflation-adjusted earnings for the period 2005 through 2008 were as follows: for 2005, $37,989.00 (57% of his AAW); for 2006, $21,124.33 (32%); for 2007, $17,249.19 (26%); and for 2008, $0 (0%). Based on these figures, the district office recommended that the employee receive $10,000.00 in wage-loss benefits for calendar year 2005, and $15,000.00 for calendar years 2006, 2007 and 2008. The total compensation recommended was $55,000.00.

On November 16, 2009, FAB issued a final decision denying the claim for multiple skin cancers and lymphoma under Part B, and for lymphoma under Part E. The final decision accepted the claim for impairment benefits based on a 24% impairment rating, and awarded the employee compensation of $60,000.00. With respect to his wage-loss claim, FAB determined that the district office’s calculation of his entitlement to wage-loss benefits was incorrect. Specifically, FAB determined that the district office should not have included dividend income in the employee’s AAW for the 36 months prior to February of 2005, or in his earnings during and after calendar year 2005. The case was therefore remanded to the district office for recalculation of the employee’s entitlement to wage-loss benefits for the period 2005-2008.

On January 29, 2010, the district office issued a recommended decision in which it determined that the employee’s AAW for the 36 months prior to February 2005 was $25,714.21. This was based solely on his wages as reported in Box 1 of his Form W-2 for the years 2002, 2003 and 2004. Using the information reported in Box 1 of his W-2s for 2005 through 2008, the district office determined that the employee’s inflation-adjusted earnings were as follows: $15,780.00 in 2005 (61% of his AAW); $20,376.00 in 2006 (77%); $9,744.00 in 2007 (38%); and $0 in 2008 (0% of AAW). The district office further concluded that the employee’s health insurance costs should not be considered in determining his AAW or calculating his calendar years of qualifying wage-loss during and after 2005.

On March 16, 2010, the employee filed objections to the recommended decision and requested a hearing. However, the objections were not addressed and no hearing was scheduled. On April 13, 2010, FAB issued a final decision accepting the claim for wage-loss benefits for the calendar years 2005 through 2008, concluding that the employee’s AAW for the 36 months prior to February 2005 was $25,714.21. FAB further concluded that his inflation-adjusted earnings were $15,780.00 in 2005 (61% of AAW); $20,376.00 in 2006 (77%); $9,744.00 in 2007 (38%); and $0 in 2008 (0%).

Accordingly, FAB concluded that the employee was entitled to wage-loss benefits of $10,000.00 for 2005, $15,000.00 for 2007 and $15,000.00 for 2008. FAB further concluded that the employee had no entitlement to wage-loss benefits for 2006, since his inflation-adjusted wages during that year were greater than 75% of his AAW.

On June 4, 2010, FAB issued an order granting reconsideration of the employee’s wage-loss claim, because the April 13, 2010 final decision did not address his objections. The case was subsequently referred for a hearing.

OBJECTIONS
In his written objections and at a hearing held on August 5, 2010, the employee raised two arguments against the wage-loss calculation in the January 29, 2010 recommended decision. These are summarized below:

1. He argued that all of his income from [Employee’s company] constituted payments received from employment or services. He reiterated that he was the sole proprietor of [Employee’s company], explaining that this was a small company that distributed packaged food products to convenience stores. For tax purposes, he organized the business as a subchapter S corporation, which allowed the company’s earnings to be passed through to him, the owner, as ordinary income. He stated that each year he paid himself a small salary (known as a “draw”). Any profits over and above that salary were reported to the IRS as dividends.
Therefore, the employee argued that such income met the definition of “wages” under the EEOICPA regulations, and should be included in both the AAW calculation and in determining his inflation-adjusted earnings for subsequent years. He also submitted copies of his Form 1040 Schedule E for the years in question, which lists his S corporation income from [Employee’s company] for the years 2002 to 2007. For purposes of his tax returns, his S Corporation income is listed under “nonpassive” income according to Schedule K-1.

2. The employee further argued that his health insurance premiums should be deducted from his income for purposes of calculating his AAW and his inflation-adjusted earnings in subsequent years. He stated that such premiums should be excluded from the wage-loss calculation, since they are
tax-deductable. After reviewing the evidence in the case file, and considering the objections and the testimony at the oral hearing, FAB hereby makes the following:

FINDINGS OF FACT
1.By final decisions dated April 25, 2008 and April 16, 2009, FAB determined that the employee is a covered DOE contractor employee who contracted the covered illness of multiple skin cancers through exposure to a toxic substance at a DOE facility.

2. On July 30, 2009, the district office determined that he sustained the consequential conditions of blindness of the right eye, photophobia and right eye pain.

3. The employee filed a claim for wage-loss benefits for the period beginning February 2005. His date of birth is September 24, 1944, and he will reach normal retirement age for unreduced Social Security retirement benefits at age 66 on September 29, 2010.

4. His AAW for the 36-month period prior to February 2005 is $66,801.21. His adjusted earnings in 2005 were $37,989.00 (57% of his AAW); for 2006, $21,124.33 (32% of AAW); for 2007, $17,249.19 (26% of AAW); and for 2008, $0 (0% of AAW).

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

CONCLUSIONS OF LAW
Part E provides for payment of compensation to covered DOE contractor employees who experience wage-loss as a result of a covered illness, and defines wage-loss as any year in which the employee’s wages did not exceed 75% of his average annual wage in the 36-month period prior to the month compensable wage-loss began. Compensable wage-loss may include any year occurring up to and including the calendar year that a covered Part E employee reaches normal retirement age under the Social Security Act. To establish eligibility for wage-loss benefits, the evidence must show that the period of wage-loss at issue is causally related to the employee’s covered illness. 42 U.S.C. § 7385s-2(a)(2).

The implementing regulations provide that in determining an employee’s AAW and any subsequent adjusted earnings, DEEOIC “will consider all monetary payments that the covered Part E employee received in a quarter from employment or services, except for monetary payments that were not taxable as income during that quarter under the Internal Revenue Code, to be ‘wages.’” 20 C.F.R. § 30.805(a) (2009). Under EEOICPA procedures, wages are defined to include salaries, overtime compensation, sick leave, vacation leave, tips and bonuses received for employment services. Income specifically excluded from the definition of wages includes capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers’ compensation benefits, medical retirement benefits and Social Security benefits. Federal (EEOICPA) Procedure Manual, Chapter 2-1400.8 (2009). The
regulations and the procedures do not specifically exclude dividends from the definition of “wages.”

In this case, the recommended decision issued on January 19, 2010 is based on a calculation of AAW that excludes the employee’s dividend earnings as the 100% shareholder of [Employee’s company] He has objected to this calculation, arguing that his dividend earnings qualify as wages under the definition cited above. The issue, therefore, is whether those dividends are “monetary payments. . .from employment or services” under § 30.805 of the regulations, and if so, whether they are taxable as income under the Internal Revenue Code.

The employee’s tax records show that his income from [Employee’s company] is classified as “non-passive” income according to Schedule K-1. Under IRS rules, passive income is defined as earnings derived from a business in which a person “does not materially participate.”[1] Since the employee’s hearing testimony and tax records make clear that he materially participated in the operation of [Employee’s company] as the sole proprietor and 100% shareholder, I conclude that these earnings constitute monetary payments from employment or services. His tax records further show that these earnings were taxable as income under the Internal Revenue Code. Accordingly, I conclude that the employee’s dividend income as 100% shareholder of [Employee’s company], a subchapter S corporation, are “wages.”

In response to the second objection, I have reviewed the tax records submitted in support of the employee’s claim, which includes Form 1040 Schedule E, Schedule K-1 and his W-2 statements covering the period 2001 through 2008. I have also reviewed IRS Publication 15-B, Employer’s Tax Guide to Fringe Benefits (2010), which is part of the record and was cited by the district office in its recommended decision, as well as other IRS guidance concerning subchapter S corporations.

IRS Publication 15-B states that although the value of S corporation employees’ health benefits are generally excluded from the employees’ wages, this exclusion does not apply to shareholders owning 2% or more of the corporation (“2% shareholders”). According to the IRS, for 2% shareholders who
are also employees, the value of the health benefits premiums must be included in the employee’s wages subject to federal income tax withholding. IRS Publication 15-B, p. 6 (2010). A review of the employee’s Form 1040 shows that the value of his health benefits is included in his S corporation
earnings (line 17), and is therefore an element of his total income (line 22). If he were an employee and less than a 2% shareholder, the value of his health benefits would be excluded entirely from his taxable wages. As a 2% shareholder, he qualifies for a self-employed health benefits insurance
deduction (line 29), which is deducted from his total income to derive his adjusted gross income. In other words, the value of the employee’s health benefits is included in calculating his taxable income, but is not included in his adjusted gross income. The health benefits deduction is therefore no different than the other deductions available to taxpayers listed on Form 1040, such as student loan interest expenses, educator expenses, or IRA contributions, which are not taken into account when calculating an employee’s AAW.

Accordingly, the evidence establishes that the employee experienced wage-loss as a result of his covered illness during calendar years 2005 through 2008. I further conclude that his AAW for the 36 months prior to February 2005 is $66,801.21; that his adjusted earnings for calendar year 2005 were
between 50 and 75% of his AAW; and that his adjusted earnings for calendar years 2006, 2007 and 2008 were less than 50% of his AAW. Therefore, in accordance with 42 U.S.C. § 7385s-2(a)(2), the employee is entitled to wage-loss benefits of $10,000.00 for 2005, and $15,000.00 per year for 2006
through 2008, totaling $55,000.00.

Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch

[1] See http://www.irs.gov/businesses/small/article/0,,id=146833,00.html (retrieved October 18, 2010).

 
 

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