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

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

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

Breast Cancer (Male and Female)

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

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

A.D.A.M. Medical Encyclopedia.

Breast cancer

Cancer – breast; Carcinoma – ductal; Carcinoma – lobular; DCIS; LCIS; HER2-positive breast cancer; ER-positive breast cancer; Ductal carcinoma in situ; Lobular carcinoma in situ

Last reviewed: November 17, 2012.

Breast cancer is cancer that starts in the tissues of the breast. There are two main types of breast cancer:

• Ductal carcinoma starts in the tubes (ducts) that move milk from the breast to the nipple. Most breast cancers are of this type.
• Lobular carcinoma starts in the parts of the breast, called lobules, which produce milk.

In rare cases, breast cancer can start in other areas of the breast.

Breast cancer can be invasive or noninvasive. Invasive means it has spread from the milk duct or lobule to other tissues in the breast. Noninvasive means it has not yet invaded other breast tissue. Noninvasive breast cancer is called “in situ.”

• Ductal carcinoma in situ (DCIS), or intraductal carcinoma, is breast cancer in the lining of the milk ducts that has not yet invaded nearby tissues. It may progress to invasive cancer if untreated.
• Lobular carcinoma in situ (LCIS) is a marker for an increased risk of invasive cancer in the same or both breasts.

Many breast cancers are sensitive to the hormone estrogen. This means that estrogen causes the breast cancer tumor to grow. Such cancers have estrogen receptors on the surface of their cells. They are called estrogen receptor-positive cancer or ER-positive cancer.

Some women have HER2-positive breast cancer. HER2 refers to a gene that helps cells grow, divide, and repair themselves. When cells (including cancer cells) have too many copies of this gene, they grow faster. In the past, women with HER2-positive breast cancer have a more aggressive disease. They have a higher risk that the disease will return (recur) than in women who do not have this type. This may be changing with specifically targeted treatments against HER2.

 

Procedure Manual

 

Page 48

 

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

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

(c) Primary cancer of the:

(ii) Male or female breast;

 

Page 175

 

7.

Specified Cancers: In addition to satisfying the employment criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation

under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff):

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

(3) Primary cancer of the:

(b) Male or female breast;

 

Page 235

 

3. Covered Cancers. Energy Employees Occupational Illness Compensation Program Act (EEOICPA) regulations states that to establish a diagnosis of cancer, medical evidence must be presented

which sets forth the diagnosis and the date of the diagnosis. The CE must verify that sufficient medical evidence is submitted to substantiate a diagnosis of cancer.

b. Diagnosis of Multiple Primary Cancers.

(1) If more than one primary cancer is identified in the medical evidence in the same organ with the same diagnosis date and the cancers are classified as the same type of

cancer, all of the identified cancers are to be considered as only one primary cancer.

For example, if three biopsies are taken from the left breast on the same date and all are listed as infiltrating ductal carcinomas, the biopsies are to be considered as indicating only one primary cancer of the left breast.

However, if biopsies taken from the left breast on the same date indicate a lobular carcinoma and an infiltrating ductal carcinoma, these cancers are considered as two

primary cancers, since the cancer types are different. If a physician clearly notes that there are two (or more) separate primary cancers, the physician’s interpretation prevails whether or not a pathology report confirms multiple primary cancers.

 

Page 292

 

2. RECA Background.

c. Section 4 of RECA.

(1) Downwinders

(b) Covered Illnesses: Leukemia (other than chronic lymphocytic leukemia), multiple myeloma, lymphomas (other than Hodgkin’s disease), and primary cancer of the thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), or lung.

 

 

Page 327

 

6. Impairment Ratings for Certain Conditions:

(b) Breast Cancer.

(1) Upon receipt of a claim for impairment for the breast in either a male or female, the CE submits a request to the physician undertaking the evaluation explaining all the criteria that must be considered and referenced in the final report. For the purposes of considering impairment due to breast cancer in a female, child bearing age will not be a determining factor when issuing an impairment rating, as the AMA’s Guides do not define “child bearing age.”(See Exhibit 2)

 

(2) When the completed impairment evaluation is returned, the CE must review it to ensure that the physician has comprehensively addressed each of the factors necessary for an acceptable rating. The report must show that the physician has considered: (1) the presence or absence of the breast(s); (2) the loss of function of the upper extremity (or extremities if there is absence of both breasts due to cancer), including range of motion,

neurological abnormalities and pain, lymphedema, etc.; (3) skin disfigurement; and (4) other physical impairments resulting from the breast cancer. The total percentage of

permanent impairment of the whole person must be supported by medical rationale and references to the appropriate sections and tables (with page numbers) of the AMA’s Guides.

 

(3) If the CE determines the physician has not provided a complete rating for a claimed impairment of the breast, a follow-up letter is sent to the physician. The CE explains

the noted deficiency in the assessment and that the purpose for obtaining a complete response is to ensure the employee received the maximum allowable rating provided by the AMA’s Guides.

 

(4) Upon receipt of an acceptable report pertaining to an assessment of permanent impairment of the breast, the CE should proceed with additional development of the claim, as necessary, and issuance of a recommended decision.

 

Page 333

 

Exhibit 2: Breast Impairment Letter:

 

Page 353

 

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

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

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

 

Bulletins

 

Page 566

 

06-12 Evaluating Permanent Impairment to the Breast (Male or Female)

 

EEOICPA BULLETIN NO. 06-12

Issue Date: August 3, 2006

________________________________________________________________

Effective Date: August 3, 2006

________________________________________________________________

Expiration Date: August 3, 2007

________________________________________________________________

Subject: Evaluating Permanent Impairment to the Breast (Male or Female).Background: As a part of the adjudication process under Part E of the Energy Employees

 

Occupational Illness Compensation Program Act (EEOICPA), impairment attributable to a covered

illness is compensable under the provisions of 42 U.S.C. 7385s. Impairment is defined as a loss,

loss of use, or derangement of any body part, organ system or organ functionality after having

reached maximum medical improvement (MMI). MMI is reached when impairment is stabilized

and unlikely to improve with or without medical treatment.

 

The standard used to determine impairment is the American Medical Association (AMA) in its

Guides the Evaluation of Permanent Partial Impairment 5th ed. The Guides provide instruction

needed for a physician to apply measures and other criteria for making a judgment on the total

percentage of impairment due to injury or illness.

 

The Division of Energy Employee Occupational Illness Compensation (DEEOIC) has received

numerous claims from employees (male and female) who were diagnosed with breast cancer and

are claiming impairment as a result of their illness. Given the manner in which the American

Medical Association (AMA) describes the methodology to calculate an impairment of the breast, it

was determined that procedural clarification was required.

 

In any instance where an impairment of the breast due to cancer is claimed, several factors are to be

addressed by the physician performing the impairment rating: (1) presence or absence of the organ;

(2) loss of function of the upper extremity; (3) skin disfigurement; (4) other impairment(s) caused

by the breast cancer or lack of the organ.

 

By itself, the anatomical absence of a mammary gland is rated according to the AMA Guides,

Section 10.9 Mammary Glands, p239, and is assigned a maximum of 5% of the whole person.

 

Loss of function of the upper extremity can accompany the surgical treatment of breast cancer,

causing range of motion problems, neurological abnormalities, lymphedema, and other

complications that affect the activities of daily living (ADL). The physician performing the

evaluation should use the AMA Guides, Chapter 16. The Upper Extremity, p433-512 to assess these

impairments.

 

Breast cancer and its surgical treatment can result in skin disfigurement which can be assessed

using Sections 8.2 and 8.3 (p175 – 176) of the AMA Guides.

 

Other physical impairments identified by the physician performing the evaluation need to be well

documented and related to the underlying accepted condition, or therapy such as radiation and

chemotherapy. They have to be ratable under the AMA Guides.

 

The completed evaluation must delineate all the factors present in the case, together with the

individual whole person impairment assigned to each, and a mention of the supporting sections and

tables of the Guides. The individual impairment percentages need to be added into a total

impairment percent.

 

The Guides do not define “child bearing age”. Therefore, for the purposes of DEEOIC (when

considering impairment due to breast cancer), “child bearing age” will not be a determining factor

when issuing an impairment rating.

 

References: EEOICPA Part E Procedure Manual Chapter 2-900 and the AMA Guides to the

Evaluation of Permanent Impairment, 5 th Edition.

 

Purpose: To provide guidance on evaluating impairment for individuals (male or female) diagnosed

with breast cancer.

 

Applicability: All staff.

 

Actions:

1. Upon receipt of a claim for impairment for the breast in either a male or female, the Claims

Examiner (CE) will submit a request to the physician undertaking the evaluation for permanentimpairment explaining all the criteria that must be considered and referenced in their final report.

Attached to this bulletin is a sample letter that may be used for this purpose (Attachment 1).

 

2. When the completed impairment evaluation is returned, the CE must review it to ensure that the

physician has comprehensively addressed each of the factors necessary for an acceptable rating.

The report must show that the physician has considered: (1) the presence or absence of the

breast(s); (2) the loss of function of the upper extremity (or extremities if there is absence of both

breasts due to cancer), including range of motion, neurological abnormalities and pain,

lymphedema, etc.; (3) skin disfigurement; and (4) other physical impairments resulting from the

breast cancer. The total percentage of permanent impairment of the whole person must be

supported by medical rationale and references to the appropriate sections and tables (with page

numbers) of the AMA Guides.

 

3. If the CE determines the physician has not provided a complete rating for a claimed impairment

of the breast, a follow-up letter should be sent. The CE should explain to the physician the noted

deficiency in the assessment and that the purpose for obtaining a complete response is to ensure the

employee received the maximum allowable rating provided by the Guides.

 

4. Upon receipt of an acceptable report pertaining to an assessment of permanent impairment of the

breast, the CE should proceed with additional development of the claim, as necessary, and issuance

of a recommended decision.

 

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

 

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

 

Attachment

 

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

Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs,

Hearing Representatives, District Office Mail & File Sections

 

Final Decisions

 

Page 244

 

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

 

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation

under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42

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

 

STATEMENT OF THE CASE

On September 16, 2002, you filed a claim (Form EE-2) for benefits as the surviving spouse of

[Employee]. You identified breast cancer and liver cancer as the diagnosed conditions on which your

claim was based. You submitted an employment history form (EE-3) on which you stated that

[Employee] was employed at the INEEL site (Idaho National Engineering and Environmental

Laboratory) from January 15, 1977 to March 6, 2001 and that she wore a dosimetry badge while

employed. As medical evidence, you submitted the following:

 

1. A copy of a November 7, 2001 hospital summary report which includes the results of the June 12

1998 pathology report in which [Employee] was diagnosed with right breast cancer.

 

2. A copy of Dr. John H. Ward’s October 28, 1999 medical report in which he stated [Employee]

was diagnosed with metastatic breast cancer to the liver.

 

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

 

You submitted a copy of [Employee’s] death certificate that shows she died on March 6, 2001 due to

metastatic breast cancer and that you were her spouse at the time of death. You did not submit a copy

of your marriage certificate to establish you were married to [Employee] as requested by the district

office on September 25, 2002. On October 9, 2002, INEEL representatives Katherine A. Vivian and

Lynn E. Rockhold advised the district office by letter that [Employee] was employed at INEEL from

March 27, 1978 to February 28, 2001.

 

To determine the probability of whether [Employee] sustained cancer in the performance of duty, the

district office referred your application package to the National Institute for Occupational Safety and

Health (NIOSH) for radiation dose reconstruction on November 4, 2002, in accordance with § 30.115

of the implementing regulations. 20 C.F.R. § 30.115. On June 29, 2004, you signed Form OCAS-1,

indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it

identified all of the relevant information you provided to NIOSH. On July 7, 2004, NIOSH submitted

the Final Report of Dose Reconstruction to the district office. Pursuant to § 81.20 of the implementing

NIOSH regulations, the district office used the information provided in that report to determine that

there was a 30.89% probability that [Employee’s] breast cancer was caused by radiation exposure at

the INEEL site. 42 C.F.R. § 81.20.

 

On July 14, 2004, the district office issued a recommended decision in which it concluded that

[Employee] does not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) as she

does not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose

reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) of the EEOICPA and 42 C.F.R. §

82.10; and that the Department of Labor completed the Probability of Causation calculation in

accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42

C.F.R. § 81. The district office recommended denial of your claim based on its conclusions.

 

Section 30.310(a) of the EEOICPA implementing regulations provides that, “Within 60 days from the

date the recommended decision is issued, the claimant must state, in writing, whether he or she objects

to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s

reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing

is desired.” 20 C.F.R. § 30.310(a). Section 30.316(a) of those regulations further states that, “If the

claimant does not file a written statement that objects to the recommended decision and/or requests a

hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or

part of the recommended decision, the FAB may issue a final decision accepting the recommendation

of the district office, either in whole or in part.”

20 C.F.R. § 30.316(a).

 

After considering the written record of the claim forwarded by the district office, and after conducting

the further development of the claim as was deemed necessary, the FAB hereby makes the following:

 

FINDINGS OF FACT

1. You filed a claim for survivor benefits on September 16, 2002.

 

2. [Employee] was employed at the Idaho National Engineering and Environmental Laboratory, aDepartment of Energy facility,[1] from August 2, 1976 to December 1, 1981.

 

3. [Employee] was diagnosed with breast cancer on June 12, 1998.

 

4. [Employee] died on March 6, 2001 due to metastatic breast cancer.

 

5. On July 7, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction

under the EEOICPA based on the evidence of record. On September 14, 2004, the Final

Adjudication Branch independently analyzed the information in that report and confirmed the

30.89% probability determined by the district office.

 

6. You did not submit evidence that establishes you are the surviving spouse of [Employee].

 

7. You have not filed any objections to the recommended decision within the 60 days allowed by §

30.310(b) of the EEOICPA regulations.

 

Based on the above-noted findings of fact in this claim and pursuant to the authority granted by §

30.316(a) of the EEOICPA regulations, the FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

To establish eligibility for compensation as a result of cancer, it must first be established that

[Employee] was a DOE employee, a DOE contractor employee or an atomic weapons employee who

contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human

Services, “to be at least as likely as not related to such employment”), after beginning such

employment. 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. The evidence of record establishes that

[Employee] was a DOE employee who contracted breast cancer after beginning her employment at the INEEL. On September 14, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for [Employee’s] breast cancer with the software program known as NIOSH- IREP. These calculations show that there was a 30.89% probability that [Employee’s] breast cancer was caused by her exposure to radiation during the period of her covered employment at the INEEL site. Pursuant to 42 C.F.R. § 82.26, NIOSH will only complete dose estimates for the organ or tissue relevant to the primary cancer site(s). It has been established by the medical evidence of record that [Employee] was diagnosed with multiple masses of metastatic breast carcinoma within the liver.

 

Evidence was not submitted that establishes she was diagnosed with liver cancer; therefore dose

estimates were not completed for that organ.

 

Because the evidence of record does not establish that [Employee’s] cancer was “at least as likely as

not” (a 50% or greater probability) caused by her employment at the INEEL site within the meaning of

§ 7384n of the Act, I find that you are not entitled to benefits under the Act, and that your claim for

compensation must be denied.

 

Additionally, you did not submit evidence that establishes you are an eligible survivor as defined under

the EEOICPA. Pursuant to § 7384s(e)(2) of the EEOICPA, if a covered employee eligible for payment

dies before filing a claim under this title, a survivor of that employee may file a claim for such

payment. 42 U.S.C. § 7384s(e)(2). Payment may be made to a surviving spouse if it is established that

the spouse was married to the employee for at least one year immediately prior to the employee’s

death. See 42 U.S.C. § 7384s(e)(3)(A).Washington, DC

 

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

 

[1] U.S. Department of Energy. Idaho National Engineering and Environmental Laboratory. Time Period: 1949 to

Present. Worker Advocacy Facility List. Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved

September 14, 2004].

 

Page 294

 

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

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claim for compensation under

Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as

amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons stated below, your claim

for benefits is denied. A copy of this decision will be provided to your authorized representative.

Adjudication of your Part E claim is deferred until after issuance of the Interim Final Regulations.STATEMENT OF THE CASE

 

On January 8, 2002, you filed Form EE-2, Claim for Survivor Benefits under EEOICPA, with the

Jacksonville district office. The claim was based, in part, on the assertion that your late spouse was an

employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-

2 that you were filing for the breast cancer of [Employee] (hereinafter called the employee).

 

On the Form EE-3, Employment History, you stated that the employee was employed at the Savannah

River Site (SRS) in Aiken, South Carolina, from 1951 to December 31, 1984. The Department of

Energy verified employment as August 20, 1951 to December 31, 1984.

 

You submitted medical evidence establishing that the employee was diagnosed with left breast cancer

on September 10, 1985. In order for you to be eligible for benefits, the evidence must establish that the

cancer was at least as likely as not related to employment at a covered facility, within the meaning of

Part B of the Act. 42 U.S.C. § 7384n.

 

To determine the probability of whether the employee sustained cancer in the performance of duty, the

Jacksonville district office referred the application package to the National Institute for Occupational

Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the

Department of Labor’s implementing regulations. 20 C.F.R. § 30.115. NIOSH reported annual dose

estimates from the date of initial radiation exposure during covered employment, to the date the cancer

was first diagnosed. A summary and explanation of information and methods applied to produce these

dose estimates, including your involvement through an interview and review of the dose report, are

documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.” On October 9, 2004,

you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been

reviewed and agreeing that it identified all of the relevant information provided to NIOSH. The district

office received the final NIOSH Report of Dose Reconstruction on October 15, 2004.

 

Pursuant to the implementing NIOSH regulations, the district office used the information provided in

this report to determine that there was a 36% probability that the employee’s cancer was caused by

radiation exposure at the Savannah River Site. 42 C.F.R. § 81.20. The Final Adjudication Branch

(FAB) independently analyzed the information in the NIOSH report, confirming the 36% probability.

 

On December 17, 2004, the Denver district office issued a recommended decision concluding that the

employee’s breast cancer is not covered under Part B of the Act and that you are not entitled to

compensation. Attached to the recommended decision was a notice of claimant rights, which stated

that you had 60 days in which to file an objection to the recommended decision and/or request a

hearing. That 60-day period expired on February 15, 2005.

 

OBJECTIONS

On January 31, 2005, the Final Adjudication Branch received a letter from your authorized

representative, dated January 19, 2005, objecting to the recommended decision and requesting a

hearing. By letter dated February 8, 2005, your authorized representative requested a telephone

hearing. The hearing was held by the undersigned by telephone on March 31, 2005. You and your

authorized representative (your daughter) were duly affirmed to provide truthful testimony.

In the letter of objection, your authorized representative stated that the actual primary site of the cancer

was probably unknown, since the cancer had already metastasized by the time the employee went to the

doctor; that breast cancer is rare in men and there is no family history, so the likelihood that radiation exposure caused it is more likely; you could not obtain additional records from the oncologist since he

is no longer in the area; that the employee worked at SRS for 33 years and was exposed to large

amounts of radiation and other harmful elements; and that he began work at SRS before exposure

records were kept.

 

At the hearing, you discussed the employee’s medical and employment histories. The authorized

representative stated that the employee had bumped his chest and noticed a lump and finally went to

the doctor when it wouldn’t go away, and that he had had knots throughout his body for some time but

never told anyone. She noted that this could indicate the primary site was not the breast since he didn’t

live long enough for the physicians to actually determine the primary site with testing and diagnostics.

She stated that she believed the primary site was the lung, since that was the area the doctors chose to

treat.

 

In accordance with §§ 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty

days after the hearing is held to submit additional evidence or argument, and twenty days after a copy

of the transcript is sent to them to submit any changes or corrections to that record. 20 C.F.R. §§

30.314(e), 30.314(f). By letter dated April 8, 2005, the transcript was forwarded to you. No response,

additional evidence, argument, changes or comments were received.

 

The objections raised before and during the hearing have been reviewed. Part B of the Act defines that

the probability of causation shall be based on the radiation dose received by the employee, and states

that cancer must be “at least as likely as not related to employment at the facility specified….” 42

U.S.C. §§ 7384n(b), 7384n(c). The implementing regulations state that the FAB may evaluate factual

findings or arguments concerning the application of dose reconstruction methodology. 20 C.F.R. §

30.318. However, § 30.318(b) of the implementing regulations states that the methodology used by

NIOSH in arriving at reasonable estimates of the radiation doses received by an employee is binding on

the FAB.

 

In your first objection, you stated that the actual primary site of the employee’s cancer is unknown.

However, as discussed at length during the hearing, the medical records all indicate a breast primary

with metastasis to the lymph system and lungs. The implementing regulations state that the

establishment of a cancer diagnosis is based on medical evidence that sets forth the diagnosis of cancer

and the date on which that diagnosis was made. 20 C.F.R. § 30.211. Your belief that the medical

evidence of record is incorrect is a challenge of a fact, and is insufficient to override the evidence of

record.

 

Your second objection relates to the rarity of breast cancer in men and the lack of a family history of

breast cancer in either sex. Scientists evaluate the likelihood that radiation causes cancer in a worker

by using medical and scientific knowledge about the relationship between specific types and levels of

radiation dose and the frequency of cancers in exposed populations. If research determines that a

specific type of cancer occurs more frequently among a population exposed to a higher level of

radiation than a comparable population (a population with less radiation exposure but similar in age,

gender, and other factors that have a role in health), and if the radiation exposure levels are known in

the two populations, then it is possible to estimate the proportion of cancers in the exposed population

that may have been caused by a given level of radiation.

 

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by

radiation exposure incurred by a covered employee in the performance of duty. The PoC is calculatedas the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline

risk of cancer to the general population. 42 C.F.R. § 81.4(n). The Department of Labor (DOL) uses

NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his individual

radiation dose. The model takes into account the employee’s cancer type, year of birth, year of cancer

diagnosis, and exposure information such as years of exposure, as well as the dose received from

gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.

 

Complex factors associated with cancer incidence are taken into account in NIOSH-IREP in calculating

probability of causation (PoC) at the 99 th percentile credibility limit for any given cancer, including

breast cancer. These factors include gender-specific rate differences as well as the gender-

specific ratios between U.S. and Japanese incidence rates. However, PoC depends more on excess risk

due to radiation exposure than to gender differences. In fact, PoC under EEOICPA is calculated as the

risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of

cancer (BasRisk) plus RadRisk, converted to a percentage.

 

By definition, a PoC of 50% is obtained whenever radiation exposure doubles the natural baseline

incidence of cancer, regardless if the baseline is low or high. Consequently, similar doses are required

for males and females to qualify for compensation for breast cancer because the risk coefficient is

similar for males and females.

 

Male breast cancer rates are indeed quite low compared to females. Further, this is true in both the

U.S. and in Japan. Thus, as would be expected, the net effect in IREP of these differing gender

incidence rates for breast cancer is that the same dose, holding all other IREP inputs constant, produces a higher PoC for males compared to females. However, gender differences in baseline rates are already taken into account in IREP calculations. This is a challenge of the PoC portion of the dose

reconstruction methodology and cannot be addressed by the FAB per 20 C.F.R. § 30.318(b).

 

The last objection concerns the accuracy of the dose reconstruction, since the employee began work

before exposure records were kept. The basic principle of dose reconstruction is to characterize the

occupational radiation environment to which a worker was exposed using available worker and/or

workplace monitoring information. In cases where radiation exposures in the workplace environment

cannot be fully characterized based on available data, default values based on reasonable scientific

assumptions are used as substitutes. The approaches for determining the employee’s external and

internal dose are discussed in detail in his dose reconstruction report and are summarized below.

 

Dosimetry records from the Savannah River Site were used as a starting point in determining the

employee’s external dose, including the addition of missed dose (when zeros were reported in his

dosimetry records). Maximizing dose conversion factors were used to convert potential whole body

exposure dose to the brain.

 

The employee participated in the bioassay program, but all of his measurements showed activities less

than the level of detection used in the program. Based on certain bioassay results, internal doses were

calculated for tritium.

 

On-site ambient doses and doses received from diagnostic medical X-ray procedures that were required

as a condition of employment were also included in the overall estimate of the dose to the breast.For the purposes of the dose reconstruction, NIOSH assigned the employee the highest reasonably

possible radiation dose related to radiation exposure and intake using available dosimetry data, when

available, and worst-case assumptions in the absence of documented exposures. The NIOSH approach

is based on current science, documented experience and relevant data. A part of the approach does

include checks of dosimetry results against work place exposure indicators. This is a challenge of the

dose reconstruction methodology and cannot be addressed by the FAB per 20 C.F.R. § 30.318(b).

 

Your concerns about other “harmful elements” the employee may have been exposed to is a challenge

of a fact, in this case the EEOICPA Part B requirement of exposure to beryllium or ionizing radiation

related to nuclear weapons production.

 

FINDINGS OF FACT

1. You filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, on January 8, 2002.

 

2. The Department of Energy verified the employment at the SRS as August 20, 1951 to

December 31, 1984.

 

3. The employee was diagnosed with breast cancer on September 10, 1985.

 

4. In proof of survivorship, you submitted copies of your marriage certificate to the employee and

the employee’s death certificate. Therefore, you have established that you are a survivor as

defined by the implementing regulations. 20 C.F.R. § 30.5(ee).

 

5. Based on the dose reconstruction performed by NIOSH, the district office calculated the

probability of causation (the likelihood that the cancer was caused by radiation exposure

incurred while working at a covered facility) for breast cancer. The district office calculated a

probability of causation of 36% and determined that this condition was not “at least as likely as

not” (a 50% or greater probability) related to employment at the covered facility. The Final

Adjudication Branch confirmed this probability of causation calculation.

 

6. On December 17, 2004, the Denver district office issued a recommended decision concluding

that the employee’s breast cancer is not covered under Part B of the Act, and that you are not

entitled to compensation.

 

7. A hearing was held on March 31, 2005. Your objections were reviewed and determined to be

challenges to the dose reconstruction methodology or a challenge of fact concerning the

coverage of the law.

 

CONCLUSIONS OF LAW

The undersigned has reviewed the facts, the recommended decision issued by the Denver district office

on December 17, 2004, and the information received before and during the hearing. The evidence in

the record does not establish that you are entitled to compensation under Part B of the Act because the

calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the

employee’s cancer was caused by radiation exposure received at the Savannah River Site in the performance of duty. Therefore, I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted.

 

Since the evidence does not establish that the employee’s breast cancer was at least as likely as not

related to employment at a covered facility, you are not entitled to benefits under Part B of the Act, and

the claim for compensation is denied. 42 U.S.C. § 7384s(e).

 

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

 

Page 978

 

EEOICPA Fin. Dec. No. 15100-2006 (Dep’t of Labor, June 22, 2006)

 

NOTICE OF FINAL DECISION

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the

Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. §

7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted.

 

STATEMENT OF THE CASE

On November 15, 2001, you filed a Form EE-2, Claim for Survivor Benefits, for cancer of the breast with metastases to the bone of your late mother, [Employee], hereinafter referred to as “the employee.” A pathology report establishes that the employee was diagnosed with infiltrting adenocarcinoma of the breast on June 8, 1953. Medical reports indicate that the employee was diagnosed with secondary bone cancer as early as November 5, 1957.

 

In support of your claim for survivor benefits you submitted a copy of your birth certificate showing

the employee as your mother and indicating that you were born on [Claimant’s date of birth]. You

also submitted a copy of the employee’s death certificate showing that she was born on [Employee’s

date of birth], that she died on May 10, 1959, and that she was married to [Employee’s spouse] at the

time of her death. The death certificate showed the employee died as a result of her carcinoma of the

breast with metastasis. Also submitted was a copy of [Employee’s spouse’s] death certificate. The

above evidence indicates that you were eleven (11) years old at the time of the employee’s death.

 

The district office verified that the employee worked for Tennessee Eastman Corporation at the Y-12

plant in Oak Ridge, Tennessee, from October 28, 1944 to October 30, 1945. The Oak Ridge Institute

for Science and Education (ORISE) database and plant records confirmed that she worked at theY-12

plant as a laboratory assistant and analyst.

 

Effective September 24, 2005, the Department of Health and Human Services designated certain

employees of the Y-12 plant who were employed for a number of work days aggregating at least 250

work days, either solely under this employment or in combination with work days of employment

occurring within the parameters established for classes of employees included in the SEC, as members

of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment, or other

radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

 

On February 1, 2006, the Jacksonville district office issued a recommended decision, concluding that

you are entitled to compensation of $325,000 under Parts B and E of the Act.

 

The Final Adjudication Branch (FAB) received your written confirmation dated February 3, 2006, that

neither you nor the employee had received any settlement or award from a lawsuit or workers’

compensation claim in connection with the accepted condition. You also indicated that at the time of

the employee’s death you were the employee’s only child. On April 3, 2006, the FAB received your

written confirmation that you waived your right to object to any of the findings of fact and/or

conclusions of law contained in the recommended decision.

 

FINDINGS OF FACT

1. On November 15, 2001, you filed a claim for survivor benefits under the Act.

 

2. You were the employee’s child and under the age of 18 years old at the time of her death. Her

spouse at the time of her death is no longer living.

 

3. The employee was diagnosed with breast cancer on June 8, 1953, which metastasized to the

bone. The bone metastasis was diagnosed as early as November 5, 1957.

 

4. The employee was employed by Tennessee Eastman Corporation at the Y-12 plant as a

laboratory assistant and analyst from October 28, 1944 to October 30, 1945.5. The employee’s breast cancer with metastasis to the bone caused her death.

 

CONCLUSIONS OF LAW

On June 5, 2006, the DEEOIC issued EEOICPA Bulletin No. 06-11, which provided supplemental

guidance for processing claims for the SEC class for the Y-12 plant. That bulletin establishes that the

primary function of the Y-12 plant during 1943 to 1947 was to perform uranium enrichment using a

calutron. Attachment 4 of the bulletin lists occupational titles for the Y-12 plant employees involved in

“Other Radiological Activities.”[1] The employee’s job titles of laboratory assistant and analyst are not

on the list as a likely employee title; however, the job title of laboratory technician was listed. An

employee change form dated October 30, 1945, shows that her department was “Beta Production

Analysis.” The beta building was 9204, and calutron production was performed there. While there is

no evidence that the employee worked in that building, her work most likely involved research/analysis

for the beta building, which lends support to a finding that she was involved in “other radiological

activities.” Therefore, it is reasonable to conclude that the job titles of laboratory assistant and analyst

should be considered as job titles involved in “other radiological activities.” The evidence shows that

the employee worked with Tennessee Eastman Corporation at the Y-12 plant in other radiological

activities from October 28, 1944 to October 30, 1945. This period of employment was during the time

frame the Y-12 plant was designated as a SEC facility.[2]

 

The employee worked in uranium enrichment activities or other radiological activities at Y-12 for more

than 250 work days. Therefore, the employee qualifies as a member of the SEC. As a member of the

SEC who was diagnosed with breast cancer and secondary bone cancer, which are “specified cancers”

pursuant to 42 U.S.C. § 7384l(17)(A) and (B) and 20 C.F.R. § 30.5(ff)(3) and (5)(iii)(B) and constitute

“occupational” illnesses under 42 U.S.C. § 7384l(15), the employee or the employee’s survivor(s)

qualify for benefits as a “covered employee with cancer.” 42 U.S.C. § 7384l(9). You meet the

definition of a survivor under Part B of the Act. 42 U.S.C. § 7384s(e)(3)(B). Therefore, you are

entitled to $150,000 for the employee’s breast cancer and secondary bone cancer. 42 U.S.C. §§

7384s(a).

 

The employee was an employee of a Department of Energy (DOE) contractor at a DOE facility.

42 U.S.C. §§ 7384l(11), 7384l(12). A determination under Part B of the Act that a DOE contractor

employee is entitled to compensation under that part for an occupational illness is treated as a

determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C.

§ 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness.

42 U.S.C. §§ 7385s(1), 7385s(2). You meet the definition of survivor under Part E of the Act. 42

U.S.C. § 7385s-3(d)(2). Therefore, you are also entitled to benefits in the amount of $125,000 for the

employee’s death due to breast cancer. 42 U.S.C. § 7385s-3.

 

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year

of her death through and including the calendar year in which she would have reached normal

retirement age. 20 C.F.R. § 30.815 (2005). This equals 21 years of wage-loss. Therefore, you are

entitled to wage-loss compensation in the amount of $50,000. 42 U.S.C. § 7385s-3(a)(3).

 

Jacksonville, FL

Mark Stewart

Hearing Representative

 

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

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

 

Page 1004

 

EEOICPA Fin. Dec. No. 72524-2006 (Dep’t of Labor, April 13, 2006)

 

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under

the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42

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

part and deferred in part. A determination of your eligibility for wage-loss and impairment benefits is

pending further development by the district office. A copy of this decision has been provided to your

authorized representative.

 

STATEMENT OF THE CASE

On October 5, 2005, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for breast

cancer. A pathology report and other supporting medical records establish that you were diagnosed

with cancer of the right breast on April 3, 1985. On the Form EE-1, you indicated that you were a

member of the Special Exposure Cohort (SEC).

 

On the Form EE-3, Employment History, you stated you were employed as a laboratory worker by

Tenessee Eastman Corporation at the Y-12 plant for the period of November 1, 1942 through August 6,

1945. The district office verified that you worked for Tenessee Eastman Corporation at the Y-12 plant

for the period of November 22, 1944 through October 31, 1945 and were issued dosimetry badge

number [Badge number].

 

This period of employment equates to 49 work weeks. You submitted a contemporaneous copy of the

Tennessee Eastman Corporation’s Employees’ Guidebook that states that the schedule at the Y-12

plant was six eight-hour shifts per week. This six day workweek was substantiated in a letter from

[Employee’s co-worker], a chemist at the Y-12 plant during 1944 and 1945. [Employee’s co-worker]

asserted that this work schedule was necessitated by a 24 hours a day 7 days a week effort to produce

every possible milligram of U-235.

 

The Department of Energy provided evidence that your duties at Y-12 were in the laboratory as an

assistant lab technician and as an analyst. The letter from [Employee’s co-worker] confirmed that this

lab work involved applying analytic procedures required to account for U in the process streams in the

plant and analyses for the total uranium content of various samples.On March 2, 2006 the Jacksonville district office issued a recommended decision to accept your claim for compensation in the amount of $150,000.00 and medical benefits for cancer of the right breast.

 

This decision was based on a finding by the district office that you are a member of the SEC and that

you were diagnosed with a specified cancer.

 

On March 8, 2006 the Final Adjudication Branch received written notification that you waived any and

all objections to the recommended decision.

 

FINDINGS OF FACT

1. You filed a Form EE-1, Claim for Benefits under the EEOICPA, on October 5, 2005.

 

2. You were diagnosed with breast cancer on April 3, 1985.

 

3. You were employed at the Y-12 plant from November 22, 1944 through October 31, 1945

while employed you worked six eight hour shifts per week.

and

 

4. You were employed in the laboratory where your duties involved radiological activities and you

were issued a dosimetry badge in 1944.

 

5. On March 2, 2006 the Jacksonville district office issued a recommended decision.

 

CONCLUSIONS OF LAW

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

 

To qualify as a member of the SEC at the Y-12 facility under the Act, the following requirements must

be satisfied:

 

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked

in uranium enrichment operations or other radiological activities at the Y-12 facility in Oak Ridge,

Tennessee from March 1943 through December 1947 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 within the parameters (excluding aggregate work day requirements) established for other

classes of employees included in the SEC. EEOICPA Bulletin No. 06-04 (issued November 21, 2005).

 

The evidence shows that you worked at the Y-12 facility from November 22, 1944 through October 31,

1945 and were assigned a work schedule of six eight hour shifts per week during this employment.

This employment equals more than 250 workdays at Y-12 between March 1943 and December 1947.

 

You worked in a job that involved analyzing uranium content and accounting for uranium in the

process stream. You wore a dosimetry badge during the time of your employment. This employment

qualifies as a radiological activity. You qualify as a member of the SEC. 42 U.S.C. § 7384l(14)(C)(i).

Your breast cancer is a specified cancer as defined by the Act and implementing regulations. 42 U.S.C.

§ 7384l(17)(A); 20 C.F.R. § 30.5(ff)(5)(iii)(B) (2005).

 

Therefore, I conclude that you are entitled to $150,000 and medical benefits effective October 5, 2005,

for breast cancer, pursuant to the Act. 42 U.S.C. §§ 7384s(a), 7384t.I have reviewed the evidence of record and the recommended decision.

 

You were an employee of a DOE contractor at a DOE facility. 42 U.S.C. §§ 7384l(11), 7384l(12). A

determination under Part B of the Act that a DOE contractor employee is entitled to compensation

under that part for an occupational illness is treated as a determination that the employee contracted

that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, you are a covered

DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2).

 

Therefore, I hereby conclude that you are entitled to medical benefits for breast cancer under Part E of

the Act effective October 5, 2005. 42 U.S.C. § 7385s-8.

 

Jacksonville, FL

Douglas J. Helsing

Hearing Representative