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.

Colon Cancer (including Rectal Cancer)

 

Below we have collected specific references to colon cancer from the DEEOIC ProcedureManual, Bulletins, andFinal Decisions, to illustrate how this illness is viewed under the EEOICPA.

A.D.A.M. Medical Encyclopedia:

Colon cancer

Colorectal cancer; Cancer – colon; Rectal cancer; Cancer – rectum; Adenocarcinoma – colon; Colon – adenocarcinoma

Last reviewed: November 17, 2012.

Colon, or colorectal, cancer is cancer that starts in the large intestine (colon) or the rectum (end of the colon).

Other types of cancer can affect the colon. These include lymphoma, carcinoid tumors, melanoma, and sarcomas. These are rare. In this article, colon cancer refers to colon carcinoma only.

Procedure Manual

Page 47

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

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

(c) Primary cancer of the:

(xiii) Colon (due to anatomical similarities, Rectal cancer is included);

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:

(m) Colon (including rectal/colon);

Page 249

c. ICD-9 Code Changes Rework. Changes can affect the internal and/or external dose models used in the DR and/or the IREP model. Accordingly, the CE submits a rework request for changes in ICD-9 codes, other than those exceptions listed below, to the DEEOIC Health Physicist. If the ICD-9 code changes within the following series, no rework is required (e.g., 188.8 to 188.5):

Seri es	Cancer	Internal(IMBA) Organ	ExternalOrgan	IREP Model
154	MalignantNeoplasmRectum/Anus	LLI	Colon	Rectum

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.

 

Bulletins

Page 811

02-04 Rectal cancer

EEOICPA BULLETIN NO. 02-04

Issue Date: April 1, 2002

Effective Date: April 1, 2002

Expiration Date: April 1, 2003

Subject: Rectal Cancer as a Specified Primary Cancer

Background: The District Offices have reviewed some Special Exposure Cohort (SEC) cases from gaseous diffusion plants where the only cancer diagnosis was rectal cancer. The specified cancer list in EEOICPA Section 7384l(17) includes colon cancer, but not rectal cancer. The intent of this Bulletin is to clarify the relationship of these two cancers and their inclusion as specified primary cancers under EEOICPA Section 7384l(17).

The colon and rectum form a long, muscular tube called the large intestine (also called the large bowel). The colon is the first 6 feet of the large intestine, and the rectum is the last 8 to 10 inches. The rectum is composed of the same tissue/cell type as the colon.

Because of this anatomical similarity, it is DOL’s intent to consider rectal cancer as the same as colon cancer. Consequently, rectal cancer should now be considered a primary specified cancer based on colon cancer being listed in EEOICPA Section 7384l(17) and used as such for determining eligibility for members of the Special Exposure Cohort (SEC) per EEOICPA Section 7384l(14).

Reference: Energy Employees Occupational Illness Compensation Program Act of 2000, As Amended, 42 U.S.C. § 7384 et seq., Sections 7384l (14) and (17).

Purpose: To notify District Offices to consider rectal cancer as similar to colon cancer, which is a specified primary cancer.

Applicability: All staff.

Actions:

1. The CE should consider rectal cancer as being the same as colon cancer, which is a specified primary cancer per EEOICPA Section 7384l(17). The rationale is based on the fact that the rectum and the colon are composed of the same tissue/cell types. Anatomically, it is appropriate to consider cancers of the colon and rectum to be the same.

2. Since colon and rectal cancers are considered anatomically similar, rectal cancer can now be considered as a specified primary cancer in determining eligibility for members of the Special Exposure Cohort (SEC) per EEOICPA Section 7384l(14).

3. The CE should continue to distinguish colon from rectal cancers using the appropriate ICD-9 codes on all appropriate paperwork. For example, the ICD-9 codes for a malignant neoplasm of the colon is 153 and for the rectum it is 154.1. For cancers that arise at the junction of these two areas, the ICD-9 code 154.0, for the rectosigmoid junction, can be used.

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

PETER TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Final Decisions

Page 121

EEOICPA Fin. Dec. No. 59055-2004 (Dep’t of Labor, September 17, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

You filed a claim, Form EE-1 (Claim for Employee Benefits under the EEOICPA), on July 7, 2004, based on rectal cancer/colon cancer. You provided a copy of a histopathology report which diagnosed invasive adenocarcinoma, based on analysis of a rectal polyp obtained during a colonoscopy on February 24, 1997. An operative report shows that you underwent a low anterior resection due to rectal cancer on March 13, 1997. The post-surgical pathology report diagnoses moderately differentiated adenocarcinoma of the colon.

You also provided a Form EE-3 (Employment History) in which you state that you worked for Dynamic Industrial (Dycon) at the Portsmouth Gaseous Diffusion Plant (GDP), in Piketon, OH, as a pipefitter from January 1983 to November 1984 and from January 1985 to June 1985. You also report that you worked for the Marley Cooling Tower Co. at the Portsmouth GDP during March 1985. You also state that you wore a dosimetry badge while so employed.The Department of Energy (DOE) was unable to confirm your reported employment. You provided copies of Forms W-2 which show that you were paid wages by Dynamic Industrial Cons. Inc. during 1983, 1984, and 1985; and by the Marley Cooling Tower Co. in 1985. A letter from the Financial Secretary Treasurer of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 577, reports that you worked at the Portsmouth GDP for Dynamic Industrial from January 1983 to November 1984 and from January 1985 to June 1985; and for Marley Cooling Tower Co. during March 1985. A representative of the DOE provided information which establishes that Dycon was a subcontractor at the Portsmouth GDP from 1980 through 1986. The Portsmouth GDP is recognized as a Department of Energy (DOE) facility from 1954 to 1998. See Department of Energy, Office of Worker Advocacy Facilities List.

On August 6, 2004, the Cleveland district office issued a recommended decision concluding that you are a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with rectal cancer, which is a specified cancer under 42 U.S.C. § 7384l(17). In addition the district office concluded that, as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s. The district office also concluded that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

On August 19, 2004, the Final Adjudication Branch (FAB) received written notification that you waive any and all objections to the recommended decision.

The FAB received additional evidence subsequent to receipt of your waiver. The DOE provided a copy of a Personnel Clearance Master Card which shows that you were granted a security clearance with SWEC (Dynamic Indust.) on January 18, 1984. No termination date is shown. You submitted additional medical reports regarding your treatment for cancer. Some of these were duplicates of reports already of record. The remaining records discuss your treatment following surgery in March 1997.

FINDINGS OF FACT

1. You filed a claim for benefits on July 7, 2004.

2. For purposes of SEC membership, you worked at Portsmouth GDP for Dycon during the periods of January 1983 to November 1984 and January 1985 to June 1985.

3. The evidence of record establishes that Dycon was a subcontractor for the Portsmouth Gaseous Diffusion Plant from 1980 to 1986.

4. You were employed for a number of work days aggregating at least 250 work days during the period of September 1, 1954, to February 1, 1992, and during such employment performed work that was comparable to a job that is or was monitored through the use of dosimetry badges.

5. You were diagnosed with rectal cancer on February 24, 1997.

CONCLUSIONS OF LAW

In order to be considered a “member of the Special Exposure Cohort,” you must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body; or had exposures comparable to a job that is or was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).

The evidence of record establishes that you worked in covered employment at the Portsmouth GDP from January 1983 to November 1984 and January 1985 to June 1985. This meets the requirement of working more than an aggregate 250 days at a covered facility. See 42 U.S.C. § 7384l(14)(A). The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 1954 and February 1, 1992, performed work that was comparable to a job that was monitored through the use of dosimetry badges. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a (June 2002). On that basis, you meet the dosimetry badge requirement.

The Final Adjudication Branch notes that you claimed benefits based on rectal cancer/colon cancer. The medical evidence of record interchangeably refers to adenocarcinoma of the rectum and the colon. Regardless of the term used, the evidence reveals only a single tumor located in the rectum. For that reason, your claim is considered to be based on a single occurrence of cancer in your rectum. Rectal cancer is considered to be colon cancer, which is a specified cancer under the Act, and the medical evidence of record establishes a diagnosis of rectal cancer. Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer. See 42 U.S.C. §§ 7384l(14)(A) and (17).

For the reasons stated above, I accept your claim for benefits based on rectal cancer. You are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s. Additionally, I conclude that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

Page 209

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

Your wife, [Employee’s wife], completed four of the six affidavits, indicating that you worked: for Chemical Waste Management at K-25 from April 1, 1991 to October 30, 1993; at the Portsmouth GDP from November 1, 1993 to October 30, 1994; for the Foley Company at X-10 from November 1, 1994 to December 1, 1996; at the BNL from May 18, 2000 to March 23, 2001. You also submitted copies of an assortment of employment records, which included various certificates regarding training courses, internship records, training attendance reports and sign in sheets, which you contend provides evidence of employment with, or for, the Portsmouth GDP, FedEx, X-10, Quadrex, and the BNL. In October 2001, you provided the district office with a copy of a letter to you dated June 20, 1992, from the Quadrex Corporation/ Quadrex Recycle Center. The first paragraph of the letter states, “This is to inform you [Employee], Social Security Number [Number], that you were monitored for ionizing radiation for the period indicated and incurred the below listed exposure while performing activities at Quadrex Recycle Center, Oak Ridge, Tennessee.” The letter indicates that the exposure site was the Recycle Center, and it documents exposure dates between October 25, 1982 and June 24, 1984.

Thereare no dates listed for the period between November 24, 1982 and October 21, 1983. You indicated in an affidavit dated January 19, 2002, that your employment dates with Quadrex, at K- 25, were from November 24, 1982 to October 21, 1983. In correspondence dated November 11, 2001, the DOE verified your employment at K-25 for the period of July 7, 1992 to February 4, 1993.

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

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

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

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

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

The district office was unable to establish that Quadrex was a DOE contractor. The district office was also unable to establish that you worked an aggregate of 250 work days at a gaseous diffusion plant prior to February 1, 1992. Therefore, to determine the probability of whether you sustained your colon (cecum) cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in January 2003, in accordance with the EEOICPA implementing regulations. On April 4, 2004, you signed a Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH. On April 22, 2004, NIOSH submitted the Final Report of Dose Reconstruction to the district office. The dose reconstruction performed by NIOSH was to have been performed using verified dates of covered employment as determined by the district office. NIOSH utilized your verified dates of employment, however, they also added in dates of employment which had not been verified by the district office. NIOSH added unverified employment at K-25 from December 1, 1991 to July 6, 1992; and unverified employment at the Portsmouth GDP from March 3, 1995 to December 31, 1996. The district office used the information provided in the final NIOSH report, including data obtained utilizing the unverified employment dates, to determine that there was a 20.14% probability that your colon (cecum) cancer was caused by radiation exposure at a covered DOE facility.

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

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

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

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

FINDINGS OF FACT

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

2. You were employed at K-25, a DOE facility, from July 7, 1992 through February 4, 1993; at the Portsmouth GDP, a DOE facility, from June 2, 1994 to November 30, 1994; and at the Brookhaven National Laboratory, a DOE facility, from June 5, 2000 to March 9, 2001.

3. You were not employed for an aggregate of 250 work days at a gaseous diffusion plant prior to February 1, 1992.

4. You were diagnosed with cancer of the colon (cecum) on May 15, 2001.

5. NIOSH reported dose estimates for your cancer for each year of your employment at a DOE facility, through the date that your colon cancer was diagnosed. A summary and explanation of information and methods applied to produce these dose estimates are documented in the “NIOSH Report of Dose Reconstruction under the EEOICPA,” provided to the district office on April 22, 2004.

6. NIOSH included several periods of unverified DOE employment to produce the dose reconstruction; at K-25, from December 1, 1991 to July 6, 1992; and at the Portsmouth GDP from March 3, 1995 to December 31, 1996. There is no substantive evidence that you were employed at K-25 between December 1, 1991 and July 6, 1992.

7. On May 26, 2006, the Final Adjudication Branch independently analyzed the information in the NIOSH report and confirmed the 20.14% probability of causation.

8. You have not filed any objections to the recommended decision.Based on the above-noted findings of fact in this claim and pursuant to the authority granted by the EEOICPA regulations, the Final Adjudication Branch hereby also makes the following:

CONCLUSIONS OF LAW

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

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

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

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

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

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

The evidence of record does not establish that you were employed at a gaseous diffusion plant prior to February 1, 1992. The weight of the evidence supports that Quadrex did not have a contractual relationship with K-25 during your claimed employment at K-25 from November 24, 1982 to October 21, 1983. You have asserted that during this period of time you were working onsite at K-25, assisting with the pumping of ponds into underground tanks, and loading mud into drums. The DOE has advised that Quadrex was not involved with the remediation of sludge ponds at K-25 in the 1980’s. Assuming, for the purposes of argument, that you were employed as a DOE contractor at K-25 for the period of November 24, 1982 to October 21, 1983, this period of time does not satisfy the requirement of being employed at a gaseous diffusion plant for an aggregate of 250 work days before February 1, 1992. Your other alleged employment at a gaseous diffusion plant, prior to February 1, 1992, is with Chemical Waste Management at K-25, for the period of December 1, 1991 to July 6, 1992. Records received from the Social Security Administration do not indicate you were employed in 1991 for Waste Management. The DOE has confirmed your employment at K-25 from July 7, 1992 through February4, 1993. This period of time is supported by the Social Security Administration records. Therefore, even assuming, for purposes of argument only, that you were employed at K-25 for the period of November 24, 1982 to October 21, 1983, given a lack of affirmative evidence that you were employed at a gaseous diffusion plant at any other time prior to February 1, 1992, your aggregate work days would not amount to 250 prior to February 1, 1992. Accordingly, you do not qualify as a member of the SEC. 42 U.S.C. § 7384l (14) (A).

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

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

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

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

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

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

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

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

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

Service – In order for an individual working for a subcontractor to be determined to have performed a

“service” at a covered facility, the individual must have performed work or labor for the benefit of

another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing

such services would be janitors, construction and maintenance works.

Contract – An agreement to perform a service in exchange for compensation, usually memorialized

by a memorandum of understanding, a cooperative agreement, an actual written contract, or any formof written or implied agreement, is considered a contract for the purpose of determining whether an

entity is a “DOE contractor.”

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

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

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

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

Washington, DC

Steven A. Levin

Hearing Representative

Final Adjudication Branch

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

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

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

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

Page 215

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 411

EEOICPA Fin. Dec. No. 559-2004 (Dep’t of Labor, October 25, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On July 31, 2001, you filed a claim for benefits under the EEOICPA listing endometrial adenocarcinoma, colon carcinoma and another lung condition identified as lung collapsed as the medical conditions on which your claim is based. An operative report dated May 27, 1994 provides a diagnosis of endometrial adenocarcinoma. An operative report dated June 16, 1997 provides a diagnosis of colon carcinoma. The district office informed you that the claimed lung condition is not covered under the Act.

The employment history form, EE-3, states that you were employed at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 1979 to March 1995. DOE verified your employment at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 26, 1979 through January 31, 1995.

You further stated on the EE-3 that you worked for KID Broadcasting, Company from 1954 to 1975 and that while covering news stories, you frequently worked at sites where radiation and contamination were present. You did not however claim that this employment was with the Department of Energy (DOE), one of its contractors or subcontractors or a beryllium vendor. As noted by the district office in the recommended decision, visiting a covered facility is not considered covered employment for the purposes of this benefit program.

To determine the probability that you sustained cancer in the performance of duty, the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Idaho National Engineering and Environmental Laboratory. On June 9, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information provided to NIOSH.

On July 1, 2004, NIOSH provided the district office with a copy of the dose reconstruction. The report states that NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data.

Based on the dose reconstruction, NIOSH estimated that the dose to the uterus was 19.276 rem (roentgen equivalent man) and the dose to the colon was 20.613 rem. According to the dose reconstruction report, the NIOSH reported dose is a significant overestimate of your occupational radiation dose.

Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was a combined total probability of 26.18% that your endometrial adenocarcinoma and your colon carcinoma were caused by radiation exposure at the Idaho National Engineering and Environmental Laboratory.

On August 12, 2004, the Cleveland district office issued a recommended decision to deny your claim for compensation benefits. Based on the evidence contained in the case record, the district office concluded that the claim for another lung condition, identified as “lung collapsed” does not qualify you as a covered employee under 42 U.S.C. § 7384l(1), as this condition is not an occupational illness, per 42 U.S.C. § 7384l(15); you are not a covered employee as defined by 42 U.S.C. § 7384l(9)(B), as you do not meet the requirements shown, 42 U.S.C. § 7384n(b); the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10 and the Probability of Causation was completed 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. Part 81. The calculation was based on multiple primary cancer sites and was completed in accordance with 42 C.F.R. §81.25.

FINDINGS OF FACT

1. You filed a claim for benefits under the EEOICPA on July 31, 2001.

2. You were employed at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 26, 1979 through January 31, 1995.

3. The first diagnosis of endometrial adenocarcinoma was made on May 27, 1994, after you began employment at a covered facility.

4. The first diagnosis of colon carcinoma was made on June 16, 1997, after you began employment at a covered facility.

5. NIOSH reported annual dose estimates for your cancers from the date of initial radiation exposure during covered employment, to the date of the cancers’ first diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 25, 2004.

6. The undersigned has verified that there is a combined total of 26.18% probability that the cancers were caused by your occupational radiation exposure during your covered employment at the Idaho National Engineering and Environmental Laboratory (INEEL).

7. The probability of causation value is less than 50%, and shows that your endometrial adenocarcinoma and your colon carcinoma are not “at least as likely as not” related to employment at the covered facility.

8. You have not filed any objections to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations.

CONCLUSIONS OF LAW

Section 30.310(a) of the EEOICPA implementing regulations provides that: “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a).

Section 30.316(a) of the EEOICPA regulations specifies, if the 60-day period expires and no objections are filed, the Final Adjudication Branch may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a).

Based on my review of you case record, I find that the evidence in the record does not establish that you are entitled to compensation under the Act because the calculation of “probability of causation” does not show that there is a 50% or greater chance that your cancers were caused by radiation exposure received at the Idaho National Engineering and Environmental Laboratory (INEEL) in the performance of duty. Pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that the district office’s August 12, 2004 recommended decision is correct and I accept those findings and the recommendation of the district office. 20 C.F.R. § 30.316(a)

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

Washington, DC

Linda M. Parker

Hearing Representative

Page 706

EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for impairment 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 an impairment award under Part E is approved. A decision on the claim for wage-loss benefits under Part E of EEOICPA is deferred pending further development.

STATEMENT OF THE CASE

On June 7, 2002, the employee filed claims for benefits under Part B and former Part D of EEOICPA. On February 23, 2007, the FAB issued a final decision finding that he was employed by a covered Department of Energy (DOE) contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these cancers were at least as likely as not related to radiation exposure during his employment at a DOE facility; and that they were also related to his exposure to toxic substances during his employment at a DOE facility. As a result, the FAB found that the employee was entitled to benefits under both Parts B and E of EEOICPA.

Earlier on January 16, 2007, the district office received the employee’s claim for wage-loss benefits and an impairment award under Part E of EEOICPA. In support of his claim, the employee submitted a pulmonary function analysis, dated February 28, 2007, from Kennewick General Hospital, which indicated that his FVC was 91% of normal, FEV-1 was 42% of normal, and DLCO was 56% of predicted. In a March 5, 2007 medical report, Dr. Arthur Cain identified lowered creatinine levels, post-radiation rectal pain, urinary frequency, and erectile dysfunction.

To determine the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the employee’s covered illness, the case was referred for review to a District Medical Consultant (DMC). The DMC submitted a medical report, dated June 30, 2007, which indicated that the employee had reached maximum medical improvement for all of his covered illnesses. Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC opined that the employee had 10% impairment of the whole person due to his kidney cancer, based on the loss of one kidney and satisfactory kidney functions. For the employee’s prostate cancer, the DMC found that there was a Class 1 impairment due to prostate and seminal vesicle dysfunction signs and symptoms, that the employee had not had surgery, and that he did not require continuous treatment. The DMC found that there was 5% impairment of the whole person due to dysfunction secondary to radiation treatment for the prostate cancer. Regarding the employee’s rectal cancer, the DMC found that there was Class 1 impairment based on no need for further treatment, no further complications, no diarrhea and no residual findings. The DMC found that there was 0% impairment of the whole person due to radiation treatment for the colon cancer. Finally, as for the employee’s lung cancer, the DMC found that his FVC was 91% of normal and his FEV-1 was 42% of normal, and that that placed him in Class 2 (Table 5-12, page 107 of the Guides). The DMC found that there was 10% impairment of the whole person due to the lung condition. However, the DMC indicated that 50% of this last impairment should be attributed to the employee’s smoking and non-covered illness emphysema. Using the Combined Values Chart on page 604 of the Guides, 10% for kidney cancer, 5% for prostate cancer, 0% for colon cancer, and 5% impairment for the lung cancer equates to a 19% impairment of the whole person.

In a letter dated July 13, 2007, the employee indicated that he had not filed for or received any money from a state workers’ compensation program or related to a tort action for any of his covered illnesses.

On August 4, 2007, the Cleveland district office issued a recommended decision to award the employee Part E benefits for a 19% whole person impairment attributable to his kidney, colon/rectal, lung, and prostate cancers. The district office recommended that he receive an impairment award in the amount of $47,500.00, and deferred making a recommendation on the employee’s claim for wage-loss pending further development.

OBJECTIONS

On September 27, 2007, the FAB received the written objections of the employee’s authorized representative and a request for an oral telephonic hearing, which was held on November 27, 2007. A review of the written objections, an October 4, 2007 impairment evaluation performed by Dr. David P. Suchard, Dr. Suchard’s testimony during the telephonic hearing, and evidence the representative submitted subsequent to the hearing reveals the following:

In his October 4, 2007 evaluation and hearing testimony, Dr. Suchard indicated that the employee had reached maximum medical improvement for all of his covered illnesses. Using the Fifth Edition of the Guides, he found that the employee’s FVC was 91% of normal, FEV-1 was 42% of normal, and DLCO was 56% of predicted, and placed him in Class 3 (Table 5-12 on page 107 of the Guides). Dr. Suchard concluded that the employee had a 40% impairment of the whole person based on his lungs. Dr. Suchard found that based on the loss of one kidney, no evidence of recurrence of cancer, occasional sharp pains associated with the surgical scar, and serum creatine reduction to 46 ml/min, that the employee was in the mid-range of a Class 2 impairment (Table 7-1, page 146), resulting in a 23% whole person impairment based on the employee’s kidneys. Regarding the employee’s colorectal cancer, Dr. Suchard found that there was a Class 1 impairment based on a condition that required surgery and the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer (Table 6-4, page 128). Dr. Suchard found that there was a 5% whole person impairment because of dysfunction secondary to radiation and treatment for the colon cancer.

For the prostate cancer, Dr. Suchard found that the employee had an anal impairment associated with his radiation-induced proctitis and that this was a Class 2 impairment due to signs and symptoms of organic anal disease or anatomic loss or alteration associated with continual anal symptoms incompletely controlled by treatment (Table 6-5 on page 131). Dr. Suchard found that there was a 15% whole person impairment related to this anal disease. Due to lower urinary tract function associated with the employee’s prostate cancer, Dr. Suchard found a Class 1 impairment due to lower urinary symptoms of urinary frequency, nocturia, and urinary hesitancy with decreased force of the urinary stream (Table 7-4 on page 153), resulting in a 5% whole person impairment related to his radiation- induced obstructive urethral disease. Based on his reduced sexual function, Dr. Suchard also found a Class 1 impairment due to difficulties in maintaining an erection of sufficient rigidity and duration for sexual intercourse (Section 7.7 on page 156), resulting in a 10% whole person impairment related to decreased penile function. However, because the Guides direct the evaluator to decrease the percentage impairments concerning male reproductive organs by 50% for men over 65, Dr. Suchard found that the employee only had a 5% whole person impairment with regard to his decreased penile function. Using the Combined Values Chart on page 604 of the Guides, Dr. Suchard concluded that 15% for anal disease, 5% for urethral disease, and 5% for sexual dysfunction equated to a 23% impairment to the whole person for the employee’s prostate cancer.

Using the same Combined Values Chart, Dr. Suchard concluded that 40% for the lung cancer, 23% for the kidney cancer, 5% for the colon cancer, and 23% for the prostate cancer equated to a 67% impairment of the whole person due to all of the employee’s covered illnesses. Subsequent to the hearing, the authorized representative submitted a pulmonary function analysis dated November 29, 2007 and the results of a December 11, 2007 endoscopy. In an email dated December 21, 2007,

Dr.Suchard indicated that the “pulmonary condition remains Class 2, no change in impairment assessment.” He also indicated that the employee continued to have a 5% whole person impairment with regard to his Class 1 colorectal disorder impairment.

On the other hand and as noted above, in his June 30, 2007 report, the DMC noted that the employee’s FVC was 91% of normal and FEV-1 was 42% of normal, and placed him in Class 2. However, Table 5-12 of the Guides states that if the FEV-1 is between 41% and 59%, this would place an individual in Class 3. Also, the DMC did not consider the DLCO test results, which were 56% of predicted and would also place an individual in Class 3. Finally, the FAB notes that the DMC apportioned the impairment of the employee’s lungs to reflect the presence of a non-covered illness (emphysema). Regarding his kidney cancer, the FAB notes that the DMC did not take into consideration the pain from the surgical site and the lowered serum creatine level. In addition, he did not consider the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer. Finally, the FAB notes that the DMC did not consider any impairment that resulted from the employee’s anal problems that were associated with radiation-induced proctitis, lower urinary tract functions associated with prostate cancer, and reduced sexual function.

Once a recommended decision on impairment has been issued, an employee may submit new medical evidence or an additional impairment evaluation to challenge the determination of the impairment in the recommended decision. When this occurs, the FAB reviewer must take many variables into consideration when weighing the probative value of competing impairment evaluations. While by no means exhaustive, the FAB reviewer considers whether the physician possesses the requisite skills and requirements to provide a rating; whether the evaluation was conducted within 1 year of its receipt by DEEOIC; whether it addresses the covered illness; and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness. In general, probative means “believable” and the FAB reviewer considers each competing report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence in the case file. See Federal (EEOICPA) Procedure Manual, Chapter E- 900.10 (February 2006). As noted above, the employee submitted medical evidence that the FAB concludes is well rationalized and of greater probative value than the DMC’s evaluation that was used by the district office to determine his percentage of permanent impairment.

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

FINDINGS OF FACT

1. On February 23, 2007, the FAB issued a final decision finding that the employee was employed by a DOE contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these “occupational illnesses” were at least as likely as not related to radiation exposure during employment at a DOE facility; and that they were also “covered illnesses” related to toxic substance exposure during employment at a DOE facility. Consequently, it was found that he was entitled to benefits under both Parts B and E of EEOICPA.

2. Based on the Fifth Edition of the Guides, the employee has a 40% impairment based on his lung cancer, 23% based on his kidney cancer, 5% based on his colon cancer, and 23% based on his prostate cancer, for a total whole-body impairment of 67%.

3. The employee has not received any settlement or award from a lawsuit or workers’ compensation claim in connection with his covered illnesses.

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

CONCLUSIONS OF LAW

Section 30.316(b) of the implementing 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 the employee’s objections in this case, and concludes that no further investigation is warranted.

If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative. The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record. See 20 C.F.R. § 30.908(c). The FAB finds that Dr. Suchard’s impairment evaluation is more probative than the one relied on by the district office to determine the employee’s recommended whole person impairment, and that based on Dr. Suchard’s evaluation, his impairment rating is calculated to be 67%. The FAB also finds that the employee is entitled to $2,500.00 for each percentage point of the impairment rating attributed to his covered illnesses. Therefore, the employee is hereby awarded impairment benefits under Part E of EEOICPA in the amount of $167,500.00 ($2,500.00 x 67) pursuant to 42 U.S.C. § 7385s-2(a)(1).

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

Page 976

EEOICPA Fin. Dec. No. 3092-2002 (Dep’t of Labor, October 7, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On September 30, 2003, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for colon cancer. On the Form EE-3, Employment History, you stated you were employed by Union Carbide at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee from 1952 to 1953. The Department of Energy verified this employment as June 30, 1952 through April 20, 1953. The medical evidence established that you were diagnosed with colon cancer on August 28, 2003.

On September 2, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for colon cancer. The district office’s recommended decision also concluded that you are entitled to medical benefits effective September 30, 2003, for colon cancer.

On September 13, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

To qualify as a member of the Special Exposure Cohort (SEC) under section 7384l(14)(A) of the Act, the following requirements must be satisfied:

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

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

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

The DOE confirmed that you were monitored for radiation exposure to the external parts of the body through the use of dosimetry badge #28543. The DOE verified employment equates to 42 weeks of employment at a gaseous diffusion plant, less than the necessary 250 workdays required for membership in the SEC. However, two co-worker affiants stated that these were six-day workweeks throughout the middle of the 1950’s. The 250 workday requirement for SEC membership is satisfied by the 42 six-day workweeks found in the record. Therefore, the employee is a member of the SEC.

FINDINGS OF FACT

1. You filed a Form EE-1, Claim for Benefits under the EEOICPA, on September 30, 2003.

2. The medical evidence is sufficient to establish that you were diagnosed with colon cancer on August 28, 2003.

3. Colon cancer, diagnosed at least 5 years after first exposure in covered employment, is a specified cancer under the Act and the implementing regulations. 42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(5)(iii)(M).

4. You were employed at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee for six-day workweeks from June 30, 1952 through April 20, 1953. You are a covered employee as defined in the Act. 42 U.S.C. § 7384l(1).

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

6. The district office issued the recommended decision on September 2, 2004.

7. On September 13, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW

I have reviewed the record on this claim and the recommended decision issued by the district office on September 2, 2004. I find that you are a member of the Special Exposure Cohort, as that term is defined in the Act; and that your colon cancer diagnosed more than 5 years after first exposure in covered employment is a specified cancer under the Act and the implementing regulations. 42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A); 20 C.F.R. § 30.5(dd)(5)(iii)(M).

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective September 30, 2003, for colon cancer. 42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL

J. Mark Nolan

Hearing Representative

Page 998

EEOICPA Fin. Dec. No. 37277-2006 (Dep’t of Labor, June 27, 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 for $150,000 under Part B of the Act and medical benefits for colon cancer under Part B and Part E of the Act. Your claim for pancreatic cancer is denied under Part B and deferred pending further development under Part E of the Act.

STATEMENT OF THE CASE

On October 17, 2002, you filed a Form EE-1 (Claim for Benefits under EEOICPA) under Part B of the Act and a Form DOE F. 350.2 (Request for Review by Physicians Panel) under Part E (formerly Part D) of the Act. You stated that you were diagnosed with colon cancer and pancreatic cancer. You submitted a November 28, 1995 pathology report (based on a November 27, 1995 biopsy), signed by Janet D. Allen, M.D., providing a diagnosis of colon cancer. You also submitted a March 8, 1988 pathology report, signed by Katherine Tabatowski, M.D., providing diagnoses of chronic pancreatitis and cystadenoma, and a December 6, 1995 discharge summary, signed by Kenneth Miller, M.D., providing a diagnosis of cystadenoma.

You also submitted a Form EE-3, Employment History, in which you stated that you worked as a radiation safety superintendent in criticality and health physics for Tennessee Eastman Corporation and Union Carbide, contractors at the Y-12 Plant in Oak Ridge, Tennessee, from November 5, 1943 to February 29, 1984. On the Form EE-3, you stated that you “provided plant with safety limits and procedures relating to activity with enriched uranium” and “visited production and maintenance areas in my daily of monitoring (sic) enriched uranium–often holding it in my hands.” The Oak Ridge Institute for Science and Education (ORISE) data base confirmed you worked at the Y-12 Plant from November 5, 1943 to February 29, 1984. Your job titles include trainee #1, worked from November 5, 1943 to April 15, 1944; technical assistant from April 16, 1944 to May 13, 1944; process foreman from May 14, 1944 to August 19, 1944; technical supervisor from August 20, 1944 to June 2, 1945; process engineer from June 3, 1945 to March 23, 1946; industrial hygienist from March 24, 1946 to May 3, 1947; and engineer from May 4, 1947 to August 31, 1947.

In a draft summary of the Computer Assisted Telephone Interview (CATI) with the National Institute for Occupational Safety and Health (NIOSH), you described your duties as “Casting, forming,machining, and inspection of large natural uranium parts. Chemical and mechanical operations: conversion to metal–highly enriched uranium. Waste recovery and processing.” You indicated you worked in all locations, including buildings 9212 and 9206.

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 facility in Oak Ridge, Tennessee as members of the Special Exposure Cohort (SEC), based on work performed in uranium enrichment operations, or other radiological activities at the Y-12 Plant, for the period from March 1943 through December 1947.

The district office received your written confirmation dated February 15, 2006, that you had not filed or received any settlement or award from a law suit or workers’ compensation claim in connection with the accepted condition.

On February 22, 2006, the Seattle district office issued a recommended decision to accept your claim concluding that you were entitled to compensation in the amount of $150,000 and medical benefits. On March 8, 2006, the Final Adjudication Branch 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 October 17, 2002, you filed a Form EE-1 and a Request for Review by Physicians Panel for colon cancer and pancreatic cancer.

2. You were diagnosed with colon cancer on a November 27, 1995. You also diagnosed with chronic pancreatitis and cystadenoma.

3. You worked at the Y-12 plant in Oak Ridge, Tennessee, for TEC and Union Carbide from November 5, 1943 to February 29, 1984. Your job titles include trainee #1, worked from November 5, 1943 to April 15, 1944; technical assistant from April 16, 1944 to May 13, 1944; process foreman from May 14, 1944 to August 19, 1944; technical supervisor from August 20, 1944 to June 2, 1945; process engineer from June 3, 1945 to March 23, 1946; industrial hygienist from March 24, 1946 to May 3, 1947; and engineer from May 4, 1947 to August 31, 1947.

CONCLUSIONS OF LAW

On June 5, 2006, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a bulletin establishing supplemental guidance for processing claims for the SEC class for the Y-12 Plant, March 1943 to December 1947.[1] This directive supplements the guidance provided in EEOICPA Bulletin 06-04 (issued November 21, 2005) for evaluating evidence of uranium enrichment operations or other radiological activities for the Y-12 SEC class.

The DEEOIC accepts that certain positions were affiliated with uranium enrichment operations at Y-12 Plant. While your job titles are not included in the list, the list is not all-inclusive. The DEEOIC notes that certain process descriptions are associated with uranium enrichment operations. EEOICPA Bulletin No. 06-11 (issued June 5, 2006) provides examples of these processes, including uranium processing, chemical conversion, and uranium recovery. Your description of your job duties shows that you were involved in all of these processes. Furthermore, you stated that you performed work in buildings 9212 and 9206, both buildings listed as locations involving uranium enrichment activities (specifically, product processing and uranium recovery). Therefore, there is sufficient evidence linking you to uranium enrichment operations or other radiological activities.

You worked in uranium enrichment activities or other radiological activities at Y-12 for more than 250 work days. Therefore, you qualify as a member of the SEC. As a member of the SEC who was diagnosed with colon cancer, which is a “specified cancer” pursuant to 42 U.S.C. § 7384l(17)(A) and 20 C.F.R. § 30.5(ff)(5)(iii)(M) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), you qualify for benefits as a “covered employee with cancer.” 42 U.S.C. § 7384l(9). Therefore, you are entitled to $150,000 for your colon cancer. 42 U.S.C. § 7384s(a).

You were an employee of Department of Energy (DOE) contractors 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, you are entitled to medical benefits for colon cancer effective October 17, 2002. 42 U.S.C. §§ 7384t, 7385s-8.

The medical evidence shows that you were diagnosed with chronic pancreatitis and cystadenoma, not pancreatic cancer. Therefore, your claim for benefits for pancreatic cancer is denied since you have submitted insufficient evidence to establish that you were diagnosed with pancreatic cancer. 20 C.F.R. § 30.211.

Jacksonville, Florida

Mark Stewart

Hearing Representative

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

Page1002

EEOICPA Fin. Dec. No. 54503-2004 (Dep’t of Labor, September 23, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On February 20, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. On March 12, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. Your claims were based, in part, on the assertion that your father was an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Forms EE-2 that you were filing for the employee’s colon cancer.

On the Form EE-3, Employment History, you stated the employee was employed by F. H. McGraw at the gaseous diffusion plant (PGDP) in Paducah, Kentucky for the period of 1951 to 1953. The district office verified this employment as July 1, 1952 through December 22, 1953. The medical evidence established that the employee was diagnosed with colon cancer on January 29, 1985.

On August 17, 2004, the Jacksonville district office issued a decision recommending that you, as eligible survivors of the employee, are entitled to compensation in the amount of $75,000 each, for the employee’s colon cancer. You each submitted written notification that you waive any and all objections to the recommended decision. [Claimant 2] also submitted comments about the recommended decision, concerning M.W. Kellogg. F.H. McGraw was the prime contractor at the PGDP, while Kellogg would have held subcontractor status. Both companies held contracts with the Department of Energy, and sufficient employment with either of the companies qualifies the employee for SEC membership.

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

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

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

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

By way of social security records, employment records, and affidavits, the Final Adjudication Branch confirmed the employee was employed at the PGDP from at least July 1, 1952[1] to December 22, 1953. This fulfills the requirement of 250 work days prior to February 1, 1992.

You indicated on the EE-3 (Employment History) that you did not know whether your father wore a dosimetry badge. According to the Department of Energy sponsored report entitled Exposure Assessment Project at Paducah Gaseous Diffusion Plant, released in December 2000, Section 4.2.1.1

External Dosimeters states: “Prior to 1961, select groups of employees considered to have the potential for radiation exposures were issued film badges. After [July 1] 1960, all employees were issued two combination security/film badges.” Because the period of your father’s employment fell within the time that some or all employees at the Paducah GDP were issued dosimetry badges, I find that the employee’s employment at the Paducah GDP satisfies the requirements under § 7384l(14)(A) of the Act. 42 U.S.C. §7384l(14)(A).

FINDINGS OF FACT

1. On February 20, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. On March 12, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.

2. The medical evidence is sufficient to establish that the employee was diagnosed with colon cancer on January 29, 1985, more than five years after the first exposure to occupational radiation.

3. Colon cancer is a specified cancer under § 7384l(17)(A) of the Act and § 30.5(dd)(5)(iii)(M) of the implementing regulations. 42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(5)(iii)(M).

4. The employee was employed at the PGDP from at least July 1, 1952 through December 22, 1953. The employee is a covered employee as defined in § 7384l(1) of the Act. 42 U.S.C. § 7384l(1).

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

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

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

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

CONCLUSIONS OF LAW

I have reviewed the record on this claim and the recommended decision issued by the Jacksonville district office on August 17, 2004. I find that the employee is a member of the Special Exposure Cohort, as that term is defined in the Act; and that the employee’s colon cancer is a specified cancer under the Act. 42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A)

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

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

[1] In accordance with the Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2) (June 2002), if the claimant qualifies for inclusion in the SEC on the basis of working at a GDP, but has not indicated having worn a dosimeter on the EE-3 form, the DOL will be required to determine whether the claimant had exposure within a time period during which his/her exposure was comparable to a job that is or was monitored through the use of dosimetry badges. For the PGDP, the comparison dates of employment are 7/52 through 2/1/92. Therefore, the accepted beginning date of employment in this case is 7/1/52.

Page 1115

EEOICPA Fin. Dec. No. 11890-2007 (Dep’t of Labor, November 7, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claims are accepted for a combined award of $150,000.00 (consisting of two equal shares of $75,000.00 each) in survivor compensation under Part B of EEOICPA, and for a second combined award of $125,000.00 (consisting of two equal shares of $62,500.00 each) in survivor compensation under Part E, based on the employee’s colon cancer and his subsequent death, respectively. [Claimant #1 and Claimant #2] are each therefore approved for separate awards of $137,500.00 under Parts B and E of EEOICPA.

STATEMENT OF THE CASE

On October 11, 2001, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Part B and Part E (formerly Part D) of EEOICPA as the children of the employee. They identified colon cancer as the condition resulting from the employee’s work at a Department of Energy (DOE) facility. The file contains a Form EE-3 alleging that the employee was employed as a chemical engineer at the Los Alamos National Laboratory (LANL) for unspecified dates, at Brookhaven National Laboratory from July of 1947 to March of 1951, at North American Aviation from April of 1951 to July of 1952, and at Argonne National Laboratory – East from April 5, 1954 to September 9, 1992. DOE verified that the employee worked at LANL from August 7, 1944 to March 1, 1946, at Brookhaven National Laboratory from July 22, 1947 to March 29, 1951, at the Downey Facility from April 21, 1951 to June 27, 1952, and at Argonne National Laboratory – East from April 5, 1954 to September 9, 1992.[1] DOE also verified that the employee present at the Trinity Test Site for the first nuclear test in July of 1945.[Claimant #1 and Claimant #2] submitted the following medical information in support of their claims: a June 29, 1991 medical report by Dr. E. Dvorak that cites a long history of recurrent adenocarcinoma of the colon; an August 3, 1991 discharge summary by Dr. J. Geraghty that reports a history of colon cancer beginning in 1965; and a July 15, 1991 pathology report of lumbar spine tissue and bone in which Dr. L. Ghosh diagnosed metastatic adenocarcinoma consistent with primary colon cancer. The employee’s death certificate shows that he died on November 20, 1992 at the age of 74 and that he was widowed at the time of his death. The immediate cause of death was listed as “metastatic carcinoma colon” and the interval between the onset of the condition and death is listed as “years.”

In support of their survivor claims, [Claimant #1 and Claimant #2] submitted copies of their birth certificates, showing the employee as their father and showing [Claimant #1]’s birth date as August 15, 1976 and [Claimant #2]’s birth date as November 16, 1973. [Claimant #2] also submitted documentation related to his education showing that he graduated from high school in 1991, at the age of 17. [Claimant #2] turned 18 on November 16, 1991. A transcript shows that he entered North Central College as a special student on January 6, 1992, and attended classes there during the winter and spring sessions of the 1991-1992 school year, and a June 19, 1992 letter states he was awarded academic honors for Spring Term of 1991-92. A copy of an October 2, 1992 letter from the University of Chicago states that [Claimant #2] deferred his admission there until Fall of 1993. A May 27, 1992 letter from the University of Chicago shows his original admission date as Autumn Quarter of 1992. In a letter dated October 9, 2001, [Claimant #2] stated that he had deferred his admission to the University of Chicago “due to [his] father’s illness.” He also noted in the same letter that during that time he had no earned income and was dependent on the employee. A copy of a transcript from the University of Chicago showed that [Claimant #2] attended classes there from Autumn 1993 until Spring 1997 and that he was awarded a degree in Summer of 1997. The transcript also notes that [Claimant #2] attended Naperville Central High School in 1991 and North Central College in Naperville, Illinois in 1991-1992.The district office referred their application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, which was necessary to determine if the employee’s colon cancer was “at least as likely as not” sustained in the performance of duty at a covered DOE facility (known as determining the probability of causation, or “PoC”).

On June 22, 2007, a new class of employees was added to the Special Exposure Cohort (SEC). The new class included employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for an aggregate of 250 work days from March 15, 1943 through December 31, 1975, or in combination with other SEC employment designations. This designation took effect on July 22, 2007. Thereafter, it was determined that the employee met the requirements for the above addition to the SEC, and the claims of [Claimant #1 and Claimant #2] were returned by NIOSH. The employee worked as a chemical engineer for more than 250 days at LANL, and his dosimetry badge records and likely job duties show that he would have been in several locations where radioactive materials were present.

On August 1 and 9, 2007, FAB received their signed statements that neither they nor the employee had received any settlement or award from a lawsuit or state workers’ compensation claim for the employee’s condition of colon cancer.

On August 18, 2007, the Cleveland district office issued a recommended decision finding that the employee qualified as a member of the SEC as he was diagnosed with colon cancer, which is a “specified” cancer, and he was employed for more than 250 days at LANL during the specified period.

Accordingly, the district office recommended that [Claimant #1 and Claimant #2] be awarded survivor benefits of $150,000.00 (to be shared equally) under Part B of EEOICPA, and $125,000.00 (to be shared equally) under Part E, based on the employee’s colon cancer and his death due to that covered illness.On August 21, 2007, FAB sent [Claimant #2] a letter requesting that he provide additional evidence to establish his eligibility as a covered child under Part E of EEOICPA. The letter noted that he was 19 years of age at the time of the employee’s death and that he could be considered a covered child if he was a full-time student who had been continuously enrolled in one or more education institutions since attaining that age of 18 years or if he was incapable of self-support.

On August 24, 2007 and September 20, 2007, FAB received [Claimant #1 and Claimant #2]’s signed waivers of their right to object to any of the findings of fact or conclusions of law contained in the recommended decision.

After a careful review of the evidence in the case file, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On October 11, 2001, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E (formerly Part D) of EEOICPA as the children of the employee. They identified colon cancer as the condition resulting from the employee’s work at a DOE facility.

2. The employee worked as a chemical engineer at LANL for the University of California from August 7, 1944 to March 1, 1946. This is at least 250 days of employment at LANL.

3. The employee was diagnosed with colon cancer in 1965. This is at least five years after he began employment at a covered facility.

4. The employee qualifies as a member of the SEC.

5. The employee died on November 20, 1992 at the age of 74, and he was widowed at the time of his death. The immediate cause of death was listed as “metastatic carcinoma colon” and the interval between onset and death is listed as “years.”6. [Claimant #1]’s birth date is August 15, 1976, and she was 16 years old at the time of the employee’s death.

7. [Claimant #2]’s birth date is November 16, 1973, and he was 19 years old at the time of the employee’s death.

8. [Claimant #2] turned 18 on November 16, 1991 attended North Central College for the Winter and Spring sessions of the 1991-92 school year. He attended the University of Chicago beginning with the Autumn Quarter of 1993, after having deferred enrollment for one year due to the employee’s illness. He attended the University of Chicago from Autumn of 1993 until he was awarded a degree in the Summer of 1997.

9. Neither [Claimant #1 and Claimant #2] nor the employee have received any settlement or award from a lawsuit or state workers’ compensation claim for the employee’s condition of colon cancer.

Based on these facts, the undersigned also makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, 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). [Claimant #1 and Claimant #2] have waived their rights to file objections to the findings of fact and conclusions of law in the recommended decision.The employee worked as a chemical engineer at LANL for the University of California from August 7, 1944 to March 1, 1946. The employee’s dosimetry badge records and likely job duties show that he would have been in several locations at LANL where radioactive materials were present. The employee was diagnosed with colon cancer in 1965. Provided the onset was at least five years after first exposure, which it was in this case as the employee’s first exposure was in 1944, colon cancer is a “specified” cancer. See 20 C.F.R. § 30.5(ff)(5)(L). The totality of evidence therefore demonstrates that the employee qualifies as a member of the new addition to the SEC. As a member of the SEC who was diagnosed with a specified cancer which constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), the employee qualifies as a “covered employee with cancer.” 42 U.S.C. § 7384l(9).

Under Part B of EEOICPA, a covered employee, or the survivors of that employee, shall receive compensation for the employee’s occupational illness in the amount of $150,000.00. The employee was a widower at the time of his death. Accordingly, as the employee’s surviving children, [Claimant #1 and Claimant #2] are entitled to $150,000.00 (to be shared equally) in survivor benefits under Part B.

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a “covered illness” through exposure at a DOE facility. The term “covered DOE contractor employee” means any DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility. See 42 U.S.C. § 7385s(1). The term “covered illness” means an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2).

A determination under Part B of EEOICPA 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). Under Part E, the survivor of a deceased covered Part E employee shall receive $125,000.00, if the employee would have been entitled to compensation for a covered illness, and 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. See 42 U.S.C. § 7385s-3(a)(1).The employee’s work for the University of California at LANL from August 7, 1944 to March 1, 1946 establishes that the employee was a DOE contractor employee, and he was diagnosed with colon cancer, a “covered illness,” as that term is defined by 42 U.S.C. § 7385s(2). The employee contracted his “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a). The employee’s death certificate indicates that the cause of death was “metastatic carcinoma colon.”

FAB therefore concludes that the employee would have been entitled to compensation under Part E for his covered illness, and 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 the employee.

The term “covered” child means a child of the employee who, at the time of the employee’s death, was under the age of 18, or under the age of 23 and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18, or incapable of self-support. See 42 U.S.C. § 7385s-3(d)(2). [Claimant #1] was 16 years old at the time of the employee’s death; thus, she is a covered child under Part E. The evidence of record shows that at the time of the employee’s death, [Claimant #2] was 19 years old. The eligibility of a child who is between the ages of 18 and 23 at the time of the employee’s death is evaluated under the following guidelines:

[T]he child must have been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years and must not have reached the age of 23 years regardless of marital status or dependency on the employee for support. Enrollment as a full time student consists of a 12-month period, with a break of no more than 4 months, during each year of post-high school education. The full-time course of study or training at an accredited institution(s) is approximately four years of education beyond the high school level or until the student reaches age 23, whichever comes first. It is [within the Division of Energy Employees Occupational Illness Compensation (DEEOIC)]’s discretion to determine a period of reasonable duration if the student was prevented by reasons beyond his or her control, such as a brief but incapacitating illness, from continuing in school. Federal (EEOICPA) Procedure Manual, Chapter E-600.5(b)(3) (September 2005).

The statute requires continuous enrollment since attaining the age of 18 in order for a surviving child to be eligible for survivor benefits under Part E. The Procedure Manual states that enrollment as a full- time student means a break of no more than four months in a 12-month period, unless prevented from continuing in school for a reason beyond the student’s control. These criteria necessarily contain some discretion for case-by-case analysis of claims involving surviving children who were between the ages of 18 and 23 when the employee died. What reasonably qualifies as “a reason beyond the student’s control” will depend on the facts and circumstances surrounding each claim and will involve some judgment on the part of DEEOIC.

[Claimant #2] graduated from high school in 1991, at the age of 17. He turned 18 on November 16, 1991, entered North Central College as a special student on January 6, 1992 and attended classes there full-time during the Winter and Spring sessions of the 1991-1992 school year. A copy of an October 2, 1992 letter from the University of Chicago states that [Claimant #2] deferred his admission there until Fall of 1993. A May 27, 1992 letter from the University of Chicago shows his original admission date as the Autumn quarter of 1992. A copy of a transcript from the University of Chicago shows that [Claimant #2] attended classes there from Autumn of 1993 until Spring of 1997 and that he was awarded a degree in Summer of 1997. The transcript also notes that he attended Naperville Central High School in 1991 and North Central College in Naperville, Illinois in 1991-1992.The employee died on November 20, 1992, during the time between [Claimant #2] attended classes at North Central College (Spring of 1992) and he began classes at the University of Chicago (Fall of 1993). In a letter dated October 9, 2001, [Claimant #2] stated that he had deferred his admission to the University of Chicago “due to [his] father’s illness.” He also noted in the same letter that during that time he had no earned income and was dependent on the employee. These statements are consistent with the above documentation, in that they both support that [Claimant #2] would have begun classes in the Autumn quarter of 1992 at the University of Chicago but for the employee’s illness. FAB notes that had he begun classes in the Autumn of 1992 as he had originally planned, there would have been no break of more than 4 months in his continuous education since he attained the age of 18.

[Claimant #2] stated, and there is no evidence in the file to contradict, that he deferred for one year his admission to the University of Chicago, from Autumn 1992 to Autumn of 1993, due to the employee’s illness, and in fact the employee died shortly after the Autumn quarter of 1992 would have begun (November 20, 1992). Thus, the circumstances surrounding the break in his continuous enrollment since the age of 18 (i.e., between Spring of 1992 and Fall of 1993) were reasonable and beyond [Claimant #2]’s control, such that he qualifies as a “covered child” who was “under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years” under Part E of EEOICPA.

Accordingly, [Claimant #1 and Claimant #2] are entitled to survivor compensation of $150,000.00 (to be divided in equal shares of $75,000.00) under Part B as the surviving children of the employee, for the employee’s occupational illness of colon cancer. They are also entitled to survivor compensation of $125,000.00 (to be divided in equal shares of $62,500.00) under Part E as the covered children of the employee, for the employee’s death due to the covered illness of colon cancer. Thus, [Claimant #1 and Claimant #2] are each entitled to $137,500.00 in total EEOICPA survivor benefits.

Washington, DC

Carrie A. Rhoads

Hearing Representative,

Final Adjudication Branch

[1] The University of California is a contractor at LANL, which is a DOE facility beginning in 1942 to the present. See DOE’s facility listings at: http://www.hss.energy.gov/healthsafety/ fwsp/advocacy/faclist/findfacility.cfm (visited November 5, 2007).

Page1137

EEOICPA Fin. Dec. No. 10003238-2005 (Dep’t of Labor, October 28, 20bu05)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On February 7, 2005, [Claimant #1] filed a Request for Review by Medical Panels form based on the colon cancer of [Employee], hereinafter referred to as “the employee.” On February 11, 2005, [Claimant #2] filed a Request for Review by Medical Panels form. A pathology report shows the employee was diagnosed with colon cancer on April 29, 1991. The employee’s death certificate shows that the employee died on May 15, 1991, as a consequence of colon cancer.

Prior to your filing, the employee’s spouse at the time of his death, [Employee’s Spouse], filed a form EE-2, Claim for Survivor Benefits under the EEOICPA. On January 28, 2003, the Final Adjudication Branch issued a final decision awarding [Employee’s Spouse] $150,000 on the basis of the employee’s colon cancer since he was a member of the Special Exposure Cohort.

You submitted the death certificate of [Employee’s Spouse], showing she died on October 17, 2004. You also submitted birth certificates showing [Claimant #1] was born on April 5, 1972, and [Claimant #2] was born on May 25, 1974. In addition, you submitted documentation showing [Claimant #1] was a full-time student at the time of the employee’s death. Although there was a lapse of several months when she was not enrolled in full-time studies, [Claimant #1] explained that the lapse was due to circumstances beyond her control, namely she had to wait for an opening at the institution in which she subsequently enrolled at her earliest opportunity.

On August 8, 2005, the Seattle district office received written confirmation from both of you stating 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 and that there were no other children of the employee who were covered under § 7385s of the Act.

Since the employee had five other children, the Seattle district office contacted these children by telephone and in writing. Each of the children responded by stating that they did not fit any of the following categories at the time of the employee’s death:

A) had not attained the age of 18 years;

B) had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years; or

C) had been incapable of self-support.

42 U.S.C. § 7385s-3(d).

On September 6, 2005, the Seattle district office issued a recommended decision, concluding that you are entitled to survivor benefits in the amount of $62,000 each for a total of $125,000 for the employee’s death due to colon cancer.

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

FINDINGS OF FACT

1) You each filed a Request for Review by Medical Panels form based on the employee’s colon cancer.

2) On January 28, 2003, the Final Adjudication Branch issued a final decision awarding the employee’s spouse at the time of his death $150,000 on the basis of the employee’s colon cancer since he was a member of the Special Exposure Cohort.[1]

3) A pathology report shows the employee was diagnosed with colon cancer on April 29, 1991.

4) The employee’s death certificate shows that the employee died as a consequence of colon cancer.

5) You are the natural children of the employee. At the time of the employee’s death, [Claimant #2] had not attained the age of 18 and [Claimant #1] had not attained the age of 23 and was a full-time student who had been continuously[2] enrolled as a full-time student since attaining the age of 18.

6) You both meet the definition of a “covered” child.

7) On August 15, 2005, the Jacksonville district office issued a recommended decision.

CONCLUSIONS OF LAW

The Final Adjudication Branch has reviewed the record and the recommended decision of August 15, 2005, and makes the following conclusions.

The employee was an employee of a DOE contractor at a DOE facility, as defined under section 7384 of the Act. 42 U.S.C. §§ 7384l(11), 7384l(12).

The determination under § 7384 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 are the covered children of the deceased employee, and the employee’s death certificate shows that the employee died as a consequence of lung cancer. 42 U.S.C. § 7385s-3(d)(2). Therefore, you are entitled to death benefits in the amount of $62,000 each for a total of $125,000 for the employee’s death due to colon cancer. 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(c)(2).

Jacksonville, FL

Mark Stewart

Hearing Representative

[1] As stated in the December 16, 2002 recommended decision, the employee was employed at the K-25 gaseous diffusion

plant in Oak Ridge, Tennessee, from July 1, 1970 to June 28, 1985, and he wore a dosimetry badge.

[2] Although there was a lapse in her enrollment, as explained earlier in the decision the lapse was outside of her control,

and she enrolled at her earliest opportunity.

Page 1139

EEOICPA Fin. Dec. No. 10012834-2006 (Dep’t of Labor, February 21, 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 or the Act), 42 U.S.C. § 7384 et seq. For the reasons stated below, your claim for benefits under Part E of the Act is accepted.

STATEMENT OF THE CASE

On September 10, 2003, the FAB issued a final decision which concluded that your father was a member of the Special Exposure Cohort based on his employment at the Portsmouth Gaseous Diffusion Plant (GDP), a Department of Energy (DOE) facility, and that he was diagnosed with colon cancer after beginning that employment. For those reasons, the FAB concluded that you, as a surviving child, were entitled to compensation under Part B.

On March 13, 2003, you filed a DOE F 350.2 (Request for Review by Physicians Panel) based on colon cancer having been caused by your father’s work at a DOE facility. A copy of your father’s death certificate shows that his death was due to metastatic mucinous adenocarcinoma. A copy of your father’s autopsy report indicates that colon cancer had metastasized to the peritoneum, omentum, intestines, stomach and liver.

You submitted a copy of your birth certificate which shows that your date of birth is April 23, 1947. A copy of your father’s death certificate shows that he was born on August 16, 1922, and died on November 26, 2002, and that he was widowed at the time of his death.

The Social Security Administration (SSA) provided an itemized statement of earnings for the period of January 2000 to December 2004 which shows that you had no earnings reported for that period. A letter from the Department of Veteran Affairs (DVA), Cleveland Regional Office, dated April 21, 2006, shows that you are entitled to receive benefits at the 100% rate, effective December 1, 1997, and that such entitlement continued to the date of this letter. Copies of DVA Rating Decisions, dated March 23, 1995 and April 29, 1997, show that you were found to be permanently and totally disabled from December 30, 1975, and that post-traumatic stress disorder (PTSD) was found to be totally disabling from March 9, 1994.

On January 10, 2007, the district office issued a recommended decision which concluded that because your father was a DOE contractor employee who was entitled to compensation under Part B of the Act, it was established that he contracted a covered illness through exposure to radiation at a DOE facility The recommended decision also concluded that his death was at least as likely as not aggravated, contributed to, or caused by that radiation. The district office found that, at the time of your father’s death, you were incapable of self-support. For those reasons, the district office concluded that you, as his surviving child, are entitled to $125,000.00 under Part E.

On January 22, 2007, the FAB received written notification that you waive any and all objections to the recommended decision. After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for benefits on March 13, 2003.

2. By final decision dated September 10, 2003, the FAB determined that your father was employed at a DOE facility and was entitled to compensation under Part B for an occupational illness, colon cancer, which was diagnosed after the beginning of that employment.

3. Your father died on November 26, 2002, due to metastatic mucinous adenocarcinoma which had originated in the colon.

4. You are a surviving child of [Employee], and were incapable of self-support at the time of his death.

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

CONCLUSIONS OF LAW

The term “covered child” means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support. See 42 U.S.C. § 7385s-3(d)(2). You were 54 years old at the time of your father’s death. Based on information provided by SSA and DVA, you had not been paid wages for at least the period of 2000 to 2004 and you were found to be totally (100%) disabled due to PTSD and other disabling conditions since at least March 9, 1994 and continuing until the time of your father’s death on November 26, 2002.

Based on the final decision of September 10, 2003, I have determined that, as provided by 42 U.S.C. § 7385s-4(a), colon cancer (resulting in metastatic mucinous adenocarcinoma) was contracted by your father through exposure to a toxic substance at a DOE facility. The evidence of record establishes that his death was at least as likely as not aggravated, contributed to, or caused by that exposure. For those reasons, I conclude that, as his surviving child, you are entitled to $125,000.00 as provided by 42 U.S.C. § 7385s-3(a)(1).

Cleveland, OH

Tracy Smart, Hearing Representative

Final Adjudication Branch