EEOICPA Covered Illnesses: Emphysema

The EEOICPA was passed in 2000. It provides compensation to workers who became ill as a result of their employment manufacturing nuclear weapons in the USA, as well as their spouses, children, and grandchildren. EEOICPA Emphysema coverage may be available for eligible Nuclear Weapons Workers and their families.

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

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

Emphysema

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

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

Emphysema
Emphysema is one of the diseases that comprises COPD (chronic obstructive pulmonary disease). Emphysema involves gradual damage of lung tissue, specifically thinning and destruction of the alveoli or air sacs.

Key Facts
Air sacs are destroyed in emphysema, making it progressively difficult to breathe.
Emphysema is usually accompanied by chronic bronchitis, with almost-daily or daily cough and phlegm.
Cigarette smoking is the major cause of emphysema.
People with emphysema experience shortness of breath with activities
It is not curable, but there are treatments that can help you manage the disease
Source

Procedure Manual:

page 196
(4) SEM provides a list of known health effects produced by a given toxic substance. SEM can also be searched to determine whether or not a given facility contained a toxic substance that could produce the health effect claimed. When searching this way, the CE searches by the claimed illness (e.g., asthma, skin cancer) to determine what toxic substances at a given site could have potentially caused, contributed to, or aggravated the claimed condition.

(b) The CE also can search SEM for toxic substances that cause a health effect by searching with a disease or health effect alias. That is, if the CE does not know the official name of the disease (e.g., pulmonary disease, chronic obstructive, a general term for lung ailments that can include emphysema, chronic bronchitis, and in some cases asthma) the CE can search by the word “lung.” This generates a search of all toxic substances present at a given facility that could affect lung function. The CE can review the list of substances to determine if they were present in the employee’s work process or building and whether these substances could potentially cause one of the lung diseases commonly referred to as COPD.

page 270
6. Established Chronic Beryllium Disease (CBD) Before 1993, Part B. The evidence required to establish a claim for established chronic beryllium disease (CBD) under Part B of the Act is described under 42 U.S.C. §7384l(13). Whether to use the pre- or post-1993 CBD
criteria depends upon the totality of the medical evidence, including when the employee was tested for, diagnosed with, and/or treated for a chronic respiratory disorder.

If the earliest dated document showing that the employee was either treated for, tested or diagnosed with a chronic respiratory disorder is dated prior to January 1, 1993, the pre-1993 CBD criteria may be used. If the earliest dated document is dated after January 1, 1993, the post-1993 CBD criteria may be used. If the employee sought treatment before 1993 and the document verifies that the treatment was performed prior to January 1, 1993, but the document is dated on or after January 1, 1993, the pre-1993 CBD criteria may be used.

To establish pre-1993 CBD, the medical documentation must include at least three of the following: characteristic chest radiographic (or computed tomography (CT)) abnormalities; restrictive or obstructive lung physiology testing or diffusing lung capacity defect; lung pathology consistent with CBD; a clinical course consistent with a chronic respiratory disorder; or immunologic tests showing beryllium sensitivity (e.g., skin patch test or beryllium blood test preferred).

g. Clinical course consistent with chronic respiratory disorder may include the following disorders and methods of treatment:

(1) Hypoxemia requires supplemental oxygen and supplies.
(2) Air flow obstruction (e.g., COPD, Emphysema) and Asthma/wheezing-like symptoms require inhalers (e.g. Flovent, Advair, Serevent, Albuterol, etc.), corticosteroid drugs, bronchodilators, and oxygen therapy.
(3) Right heart failure, Cor pulmonale: Cardiology consult and subsequent management, diuretics (e.g. Lasix, HCTZ, Spironolactone, etc.), supplemental oxygen.
(4) Pulmonary Hypertension: Cardiology consult and subsequent management, supplemental oxygen.
(5) Respiratory infections (Pneumonia, Acute bronchitis): Antibiotics, sputum cultures, blood cultures, sometimes bronchoscopy.
(6) Sarcoidosis: corticosteroid drugs, such as prednisone.

page 276
9. Beryllium Sensitivity and CBD, Part E. Causation under Part E is developed in one of two ways for beryllium sensitivity and CBD. The first way is through a positive determination under Part B. The second way is through medical evidence as described below.

d. Causal Relationship, Survivor Development. When a survivor claim for CBD is accepted under Part B and an “Other Chronic Pulmonary Disease” is listed on the death certificate as contributing to or causing the employee’s death, the CE concludes that it is “at
least as likely as not” that the presence of CBD, or the chronic respiratory disorder consistent with CBD, aggravated or contributed to the “Other Chronic Pulmonary Disease,” and therefore to the employee’s death.

Exhibit 1 serves as medical evidence that the CE uses in this determination. The CE places a copy of the Memorandum from the DEEOIC Medical Director in the case file. As a result, it is not necessary for the CE to determine whether the “Other Chronic Pulmonary Disease” was directly due to toxic exposure from covered
DOE contractor/subcontractor employment.

The accepted “Other Chronic Pulmonary Diseases” are:

(1) Asbestosis;
(2) Silicosis;
(3) Chronic Obstructive Pulmonary Disease (COPD);
(4) Emphysema; and
(5) Pulmonary Fibrosis

Once the medical, employment, and causation criteria have been met for a beryllium sensitivity or CBD claim under Part E, the employee is awarded medical monitoring, treatment, and therapy for the condition effective relative to the date of filing. In addition, the employee is eligible for lump sum compensation for impairment and/or wage-loss.

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16. Chronic Obstructive Pulmonary Disease (COPD). COPD is a disease that causes airflow blockage and breathing-related problems.

c. Unique Conditions within COPD. Emphysema is caused by only a small subset of the toxic substances associated with chronic bronchitis, but is sometimes aggravated by toxins associated with COPD.

If all of the COPD criteria are otherwise met, individuals with Alpha-1 Antitrypsin Deficiency (AAT Deficiency) are considered to have a covered illness.

Final Decisions:

page 54
EEOICPA Fin. Dec. No. 30568-2005 (Dep’t of Labor, September 16, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000. 42 U.S.C. § 7384 et seq. Since your attorney-in-fact submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with the implementing regulations. 20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.

For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE
On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease (CBD) and removal of lung in 1958. On the Form EE-3, Employment History, you stated you were employed in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant with Maxon Construction as an ironworker from 1950/51 to 1954; at the Y-12 plant as a machinist from December 1954 to mid-1955; and at the Oak Ridge National Laboratory (X-10) as a chemical operator from mid 1955 to June 1982. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

On December 2, 2004, the Jacksonville district office recommended acceptance of the claim for CBD based on the statutory criteria for a pre-1993 diagnosis and recommended denial of the claimed emphysema. On January 3, 2005, the Final Adjudication Branch (FAB) issued a remand order, which returned the case to the district office for further development.

In accordance with the remand order, the district office obtained a copy of a lymphocyte proliferation test (LPT) verbally reported to have been normal, and forwarded the evidence of record to a district medical consultant for an opinion whether a finding of pulmonary fibrosis was a characteristic abnormality of CBD on a chest x-ray.

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act. 42 U.S.C. § 7384l(7). Due to confirmation of your employment in a facility where beryllium was present, you are considered to be a “covered beryllium employee.” However, in order for you to receive compensation, you must be diagnosed with a covered beryllium illness, in accordance with § 7384 of the Act and implementing regulations. 42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205. “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease. 42 U.S.C. § 7384l(8).

According to § 7384 of the Act, chronic beryllium disease is established by the following:

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

(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic
beryllium disease;
(ii) a computerized axial tomography scan showing changes consistent with chronic
beryllium disease; or
(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with
chronic beryllium disease.

(B) For diagnoses before January 1, 1993, the presence of—

(i) occupational or environmental history, or epidemiologic evidence of beryllium
exposure; and
(iii) any three of the following criteria:
- (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.
- (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
- (III) Lung pathology consistent with chronic beryllium disease.
- (IV) Clinical course consistent with a chronic respiratory disorder.
- (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred). 42 U.S.C. § 7384l(13).

On April 29, 2005, the district office received a copy of the lymphocyte proliferation test conducted on January 23, 2003, which contained a finding of a normal response to beryllium sulfate. In light of the report from your physician stating that your steroid use could affect the outcome of the testing, the district office noted that the only situation where a normal LPT could be overridden for acceptance of a post-1993 CBD diagnosis was when a lung tissue biopsy revealed the presence of granulomas consistent with CBD. The lung biopsy on file, from 1958, did not include a finding of granulomas.

Therefore, the claim was also considered under the pre-1993 criteria. The evidence consisted of x-rays denoting abnormalities, obstructive lung physiology testing, and a medical history showing a clinical course consistent with a chronic respiratory condition. However, the chest x-rays which reveale abnormalities were referred to a district medical consultant (DMC), in accordance with policy, to determine if they were characteristic of CBD. In his report of March 26, 2005, Dr. Robert Sandblom opined that the x-ray reports on file did not show any abnormalities consistent with CBD.

On May 9, 2005, the Jacksonville district office issued a recommended decision to deny the claim for CBD, emphysema, and a lung abscess, since there was insufficient medical evidence to establish a diagnosis of a covered occupational illness under § 7384 of the Act.

42 U.S.C. § 7384l(15).

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. These 60 days expired on July 8, 2005. On July 5, 2005, the Final Adjudication Branch received a letter of objection, dated June 30, 2005, from your attorney-in-fact.

OBJECTIONS
In the objection letter, the attorney-in-fact stated that she disagreed with the office procedures which allowed pulmonary fibrosis to be considered characteristic and then not characteristic. She stated that changes such as this should not be implemented in a retroactive manner, since the clarifications of policy appeared to be more restrictive in order to deny claims. She questioned whether the LPT on record would be investigated further since your physician said that your steroid use could alter the results. She said a phone call to the FAB had not been returned; however, there are no records of any telephone calls after the recommended decision was issued.

The district office and Final Adjudication Branch are bound by the policies and procedures in place at the time a claim is adjudicated and are required to review such a claim in light of those current policies. The issue for determination is whether the chest x-rays meet the pre-1993 criteria for a statutory diagnosis of CBD. Since Dr. Sandblom did not specifically mention the chest x-ray report of February 13, 1967 (which the district office used as support for their recommended acceptance in the original decision) in his earlier response, the Final Adjudication Branch requested clarification. In an addendum dated September 15, 2005, Dr. Sandblom explained that the pulmonary fibrosis noted in February 1967 was due to localized scarring “consistent with the prior lobectomy for lung abscess” and stated that “these changes are definitely not consistent with CBD.”

Furthermore, the procedures address the use of a normal LPT in a living claimant: a lung biopsy that confirms the presence of granulomas may override a normal LPT. The district office thoroughly addressed this requirement in the recommended decision, as discussed above. Telephone records in the case file indicate a test kit was to be forwarded to you in May by ORISE. The results of that testing have not been received.

FINDINGS OF FACT
1. On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease (CBD) and removal of lung in 1958.

2. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

3. The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

4. On May 9, 2005, the Jacksonville district office issued a recommended decision to deny compensation and medical benefits for chronic beryllium disease, emphysema, and a lung abscess.

5. On July 5, 2005, the Final Adjudication Branch received a letter of objection from your attorney-in-fact, dated June 30, 2005, and conducted a review of the written record. The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW
The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on May 9, 2005, and finds that the evidence submitted does not establish that you meet the statutory criteria for a diagnosis of chronic beryllium disease, as defined in the Act, or any other covered occupational illness, as defined in the Act and implementing regulations. 42 U.S.C. §§ 7384l(13), 7384l(15), 20 C.F.R. § 30.5(z). I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections submitted. As explained in the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). Therefore, I find that you are not entitled to compensation or medical benefits under the Act, and that your claim for compensation must be denied.

Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative

page 109
EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 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. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE
On March 22, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of prostate cancer, emphysema and possible lung cancer. You also provided a Form EE-3 (Employment History), on which you indicated that you worked at the Weldon Spring Plant from 1956 to 1967, and that you wore a dosimetry badge.

By letters dated March 31, May 5, and June 14, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but additional medical evidence was needed in order to establish a claim. You were requested to provide documentation of a covered occupational illness, specifically, cancer.

You provided medical documentation which indicated that you received treatment for conditions including hypertension, diabetes mellitus, bronchitis and emphysema. In addition, a hospital discharge summary report from a hospital stay from April 15 to April 16, 1993, indicated that you were admitted to the hospital for a medical procedure following a radical prostatectomy, which was performed “in order to allow the patient to be treated for his cancer of the prostate.” The date of diagnosis of prostate cancer was not noted.

The record also includes several telephone messages, which indicate that you, with the assistance of your authorized representative, have been trying to obtain the medical records pertaining to your diagnosis of prostate cancer and the date of diagnosis, but that you have not yet received the medical records. On July 16, 2004, the Seattle district office recommended denial of your claim for benefits.

The district office concluded that you did not provide sufficient evidence as proof that you were diagnosed with a covered occupational illness as defined by § 7384l(15) of the Act. See 42 U.S.C. § 7384l(15). The district office further concluded that you were not entitled to compensation as outlined under § 7384s of the Act. See 42 U.S.C. § 7384s.

FINDINGS OF FACT
1. You filed a claim for employee benefits on March 22, 2004.

2. You worked at the Weldon Spring Plant, a covered Department of Energy facility, from July 17, 1956 to June 30, 1966.

3. You did not submit sufficient medical evidence establishing a date of diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW
The undersigned has reviewed the recommended decision issued by the Seattle district office on July 16, 2004. I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations and that the sixty-day period for filing such objections, as provided for in section 30.310(a) has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the EEOICPA, you must establish that you were diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).

You filed a claim based on the condition of emphysema, which is not a compensable illness under Part B of the Act. You also filed a claim based on prostate cancer and possible lung cancer. Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made. See 20 C. F. R. § 30.211.

The record in this case shows that by letters dated March 31, May 5, and June 14, 2004, you were requested to provide the required information to prove a medical condition. While a hospital discharge report dated April 16, 1993, contains a reference to your treatment for prostate cancer, the evidence of record does not contain a date of diagnosis of this cancer. Without the date of prostate cancer diagnosis, it is not possible to determine if this cancer was related to your employment at the Weldon Spring Plant. In regard to you claim for possible lung cancer, the medical documentation of record does not indicate a diagnosis of lung cancer.

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

The record in this case shows that you did not provide sufficient medical documentation of a covered occupational illness under the Act. Therefore, your claim must be denied. For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

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

page 164
EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013)
EMPLOYEE:[Name Deleted]
CLAIMANT:[Name Deleted]
FILE NUMBER:[Number Deleted]
DOCKET NUMBER:20130111-12000242-2
DECISION DATE:June 13, 2013

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for chronic beryllium disease (CBD) under Parts B and E, and for hearing loss, hypertension and chronic obstructive pulmonary disease (COPD)/emphysema under Part E, are hereby denied.

STATEMENT OF THE CASE
On January 30, 2012, the employee’s authorized representative filed a claim on behalf of her client under both Parts B and E of EEOICPA for the illnesses noted above. In support of that claim, the representative argued that the Department of Energy (DOE) and its predecessors had leased the Kansas City Plant[1] from the General Services Administration (GSA), and that as part of such lease, GSA maintenance workers (such as the employee) performed maintenance work on utilities located within the boundaries of the Kansas City Plant. Although the representative did not submit a copy of the alleged “lease agreement” to the district office, she did submit a copy of a Memorandum of Agreement (MOA) signed in July of 1993 by representatives of GSA, DOE and the Department of Defense for “environmental investigatory work at the Bannister Federal Complex.” The representative also provided the following: a GSA form completed on July 12, 1988 regarding the employee’s medical examination on that date; respirator use forms dated 1990-1994; and a June 14, 1993 health unit history form completed by the employee in which he stated that he began working for GSA on July 3, 1961 as an A/C Operator and Plumber/Pipefitter.

On February 2, 2012 and March 2, 2012, a claims examiner sent the employee letters requesting that he submit a Form EE-3 and a copy of the “lease agreement” that his representative referred to in her argument. These letters also asked the employee to submit medical evidence in support of his alleged illnesses. In response, the employee submitted a completed Form EE-3 in which he indicated that he worked at the “Kansas City Plant/Bendix” for “GSA-PBS-R6” as a “pipe fitter/plumbing/ maintenance” from July 3, 1961 to December 30, 1994, and that he had “[f]requent assignments with security Personnel to Bendix steam pits.” The employee did not provide the requested copy of the “lease agreement” to the district office, but his representative submitted a March 16, 2012 statement signed by a GSA buildings manager supervisor who alleged that GSA maintenance employees were required to enter DOE space at the Bannister Federal Complex to perform work on mechanical systems and operations that were intertwined or shared between DOE and GSA.

The employee also submitted medical evidence consisting of health unit and employment screening evaluations conducted intermittently between June 13, 1988 and June 21, 1994. Most of these evaluations took the form of x-rays read by B-readers who found evidence of pleural changes consistent with asbestos exposure, but Dr. David F. Hazuka opined that the employee’s July 25, 1991 chest x-ray showed a few benign calcifications appearing in the employee’s lower right lung field, and Dr. Kenneth M. Jacob noted a few bilateral calcified granulomas after review of the employee’s June 21, 1994 chest x-ray. The employee also submitted an August 12, 1994 report indicated that the employee’s pulmonary function tests showed some abnormalities that were below the normal range but were mild and did not require follow-up medical attention.

On March 14, 2012 and on April 17, 2012, the claims examiner sent a request to Honeywell, the DOE contractor at the Kansas City Plant, for verification of the employee’s alleged work at that location as a GSA employee, and a document acquisition request. On May 17, 2012, Honeywell responded that it did not have any evidence regarding the employee’s alleged work.

At the same time that the representative filed the employee’s claim with the district office, she also faxed a copy of the 1993 MOA noted above, her argument in support of the claim and other documents to the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in Washington, D.C. After considering her argument, the Director wrote to the Denver district office on August 7, 2012 and noted that there was no evidence that GSA was a subcontractor of the DOE contractor at the Kansas City Plant. The district office then issued a recommended decision on August 23, 2012 to deny both aspects of the employee’s claim on the ground that there was insufficient evidence to establish that he had any covered employment at a DOE facility.

On August 30, 2012, FAB received an August 27, 2012 statement from the representative in which she objected to the recommended decision and requested an oral hearing. In light of this request, the national office of DEEOIC forwarded several documents regarding the Bannister Federal Complex to FAB, as follows:

• A May 7, 1963 “Space Permit and Service Agreement,” identified as Contract No. AT(23-3)-14,
between the Atomic Energy Commission (AEC) and GSA that was made retroactive to July 1, 1962.

• A September 26, 1974 memorandum to the AEC setting out the chronology of the Kansas City
Plant from 1943 through 1963.

• A February 17, 1977 letter in which GSA notified the Energy Research and Development Administration (ERDA) that it had transferred ownership of 122.05 acres at the Bannister Federal Complex to ERDA, effective September 30, 1976, and included a provision that the property would be transferred back to GSA whenever ERDA no longer had use for it.

• Modification No. M085 to Management and Operations (M&O) Contract No. EY-76-C-04-0613 between ERDA and Bendix, effective January 1, 1977.

• Modification No. M107 to M&O Contract No. DE-AC04-76DP00613 between DOE and Bendix, effective January 1, 1982.

• A Memorandum of Understanding (MOU) between DOE and GSA, No. DE-GM33-89AL53604, effective March 1, 1989.

After it received the above-noted evidence, FAB issued a September 21, 2012 order remanding the employee’s claim under Parts B and E to the district office. With respect to the employee’s Part B claim, FAB noted that the district office did not make any findings in the recommended decision on the employee’s allegation that he worked for GSA at the Bannister Federal Complex, and, if this was true, whether he was eligible for Part B benefits for his alleged CBD pursuant to 42 U.S.C. § 7384l(7)(A). As for the employee’s Part E claim, FAB also noted that the same recommended decision did not address whether he met the definition of a “Department of Energy contractor employee” under Part E. Accordingly, FAB returned the file to the district office for further development.

Upon return of the case file, the district office wrote to the employee on September 25, 2012 and asked him to submit a copy of the alleged lease his representative had referred to earlier. The employee did not respond to this request within the period of time allotted; however, the Denver district office obtained copies of additional documents that the employee’s representative had faxed to DEEOIC’s Director about the Kansas City Plant before she filed the employee’s claim. In a cover letter that she had faxed to the Director on January 12, 2012, the representative argued that the following documents proved that the War Assets Administration (WAA) and then GSA “owned the Kansas City property and leased it to various AEC contractors. . .(Westinghouse, Bendix, Allied Signal, Honeywell)”:

• A January 31, 1947 memorandum from the WAA to the Real Property Review Board regarding a “[p]roposal to lease for multiple tenancy plan together with proposed rental rates” for Plancor 1213 [i.e., the Bannister Federal Complex] in Kansas City, Missouri.

• A July 3, 1947 WAA internal memorandum concerning revision of rental rates at Plancor 1213.

• A July 2, 1952 letter wherein the Navy informed GSA that it could not release 32 acres of property included in the lease agreement between the Navy and Westinghouse to GSA, and indicated that part of the main plant was “turned over to Bendix” for use on an AEC project.

The district office also wrote to the employee on December 5, 2012 and requested that he submit additional medical evidence in support of his claim for CBD under Part B of EEOICPA. The district office did not receive any response to that letter from the employee. Thus, on January 11, 2013, the district office issued a recommended decision to deny the employee’s claim for CBD under Part B on the ground that the evidence of record did not establish that he developed that condition, and to deny his claim for CBD, hypertension, hearing loss and COPD/emphysema under Part E on the ground that he was not a “covered DOE contractor employee.”

On January 16, 2013, the employee’s representative objected to the recommended decision and requested an oral hearing. She also asked FAB to issue a subpoena for “correspondence” she believed had occurred in connection with the employee’s claim. In a letter dated January 28, 2013, FAB denied the representative’s subpoena request in connection with the employee’s Part E claim, and informed her of the criteria she would have to meet before it could consider issuing a subpoena in connection with her client’s Part B claim. Since the representative did not address either of those requirements in her January 16, 2013 request, FAB provided her 30 days from the date of the letter to submit a response, but no response was received. The undersigned hearing representative held the requested hearing in Kansas City, Missouri on March 28, 2013.

OBJECTIONS
At the hearing, the employee and other witnesses provided oral testimony in support of the claim under both Parts B and E. The representative also provided a number of arguments, as described below. First, the representative argued that the employee had met his burden to establish a diagnosis of CBD under Part B, using the pre-1993 statutory criteria. However, the medical evidence in the file does not satisfy at least three out of those five criteria, because while it is arguable that the employee may have submitted evidence of characteristic chest radiographic abnormalities and either a restrictive or obstructive lung physiology testing (or diffusing lung capacity) defect, the employee did not submit any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory disorder, or any immunologic tests showing beryllium sensitivity. Therefore, he had not met his burden to proof to establish that he has CBD under Part B of EEOICPA.

Second, the representative argued that the 1993 MOA discussed above is a contract for services by which GSA agreed to clean up hazardous substances at the Kansas City Plant in exchange for compensation from DOE, and therefore GSA is a subcontractor at the Kansas City Plant and her client is a subcontractor employee eligible for Part E benefits. However, this is not a correct interpretation of this document. While the 1993 MOA was an agreement between GSA, DOE and the Department of Defense, it only concerned the environmental investigatory work these three agencies undertook at the Bannister Federal Complex pursuant to their respective statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and Liability Act. Also, while the MOA provided that each party could seek reimbursement from the others for investigatory and cleanup costs, the 1993 MOA is not a contract in which GSA agreed to perform services it was not statutorily obligated to perform in exchange for compensation from DOE. Therefore, this document does not establish the employee’s entitlement to any Part E benefits.

Thirdly, the representative argued that her timely request for the issuance of a subpoena related to the employee’s Part E claim was wrongly denied on January 28, 2013. However, DEEOIC’s authority to issue subpoenas in connection with claims filed under EEOICPA is limited by the express terms of 42 U.S.C. § 7384w, which strictly limits that authority to Part B claims. Since this objection concerns a request for a subpoena in connection with a Part E claim, there is no basis for this objection.

Fourth, the representative suggested that the Policy Branch within the national office of DEEOIC somehow lacked the authority to provide guidance regarding the employee’s alleged entitlement to benefits under Part E of EEOICPA to the Denver district office of DEEOIC. However, there is no apparent legal or factual basis for this suggestion, and more importantly, the Policy Branch was providing guidance to the district office on a question of entitlement, not deciding to either accept or deny the employee’s Part E claim. Consistent with 20 C.F.R. § 30.300 (2012), all final agency decisions issued on claims of entitlement under EEOICPA are issued by FAB, not the Policy Branch of DEEOIC.

And finally, the representative’s main argument in support of the employee’s Part E claim was that there was a lease agreement showing that the WAA was the “landlord” for the Kansas City Plant (this location was part of the larger location called “Plancor 1213” in WAA documents) beginning in the 1940s, and that as the landlord, the WAA (and then GSA) had a duty to perform certain services for the DOE contractors at the Kansas City Plant for which the WAA/GSA was paid under the terms of this alleged lease agreement.

In order to address these final contentions, it is first necessary to set out some of the pertinent history of the Bannister Federal Complex, of which the Kansas City Plant is a part, as established by the
documents in the case file. Those documents indicate that in 1942, a large manufacturing building was built at the site of the present-day Bannister Federal Complex for the Department of the Navy, and that Pratt & Whitney assembled engines for Navy fighter planes in that building from 1943 to 1945. They also indicate that the Defense Plant Corporation (a wartime subsidiary of the Reconstruction Finance Corporation, which was then an independent agency of the U.S. government) owned the property from at least 1943 through 1947. On December 31, 1947, the Navy acquired the land by a Quitclaim Deed from the Reconstruction Finance Corporation, acting through the War Assets Administrator, and immediately leased the “old Pratt & Whitney plant,” i.e., the large manufacturing building in question, to the Westinghouse Electric Company, who continued to build Navy jet engines at the plant from 1948 through 1961.

The evidence in the file establishes that during the period of its lease, Westinghouse subleased portions of the “old Pratt & Whitney plant” to various government agencies and private entities. One of those subleases was executed in 1948, when Westinghouse sublet the warehouse portion of the “old Pratt & Whitney plant” to the Bendix Corporation, with the AEC’s approval, after the AEC had entered into Contract No. AT(29-1)-613 with Bendix on November 5, 1948 “for the performance by the Contractor of certain work involving management and operation of Government-owned facilities.” This event marks the historical beginning of the worksite known as the Kansas City Plant. Bendix actually began its work for the AEC at this subleased location in 1949 and continued working there even after the Navy terminated its lease with Westinghouse on June 30, 1961; shortly thereafter, the Navy transferred ownership of all 300 acres comprising the Bannister Federal Complex to GSA. The Westinghouse-to-Bendix sublease also presumably ended in 1961, although there is no documentation available on this point.

Based on the above, the representative’s assertion that the AEC began leasing space for the Kansas City Plant at the Bannister Federal Complex from the WAA in the 1940s is factually incorrect. The January 31, 1947 and July 3, 1947 memoranda discussed earlier are not evidence of a lease agreement between the WAA and either the AEC or Bendix, because they were both dated more than one year before Bendix contracted with the AEC to perform work for it at the Kansas City Plant in November of 1948. Instead, the evidence shows that Bendix subleased a portion of the complex from Westinghouse (not GSA) from 1948 through 1961.

After that sublease ended, both GSA and the AEC entered into a “Space Permit and Service Agreement,” effective July 1, 1962, through which GSA granted the AEC and its contractors a permit for “possession and use” of the Kansas City Plant. In return, the AEC agreed to pay GSA an “unfunded users charge.” Under this Space Permit and Service Agreement, the AEC was responsible for its own day-to-day and long-term maintenance of the interior of the buildings in its area, its adjacent areas and border fences, and all installed utilities and/or mechanical systems within its area. GSA was denied general access to the Kansas City Plant, and was granted access only upon approval by the AEC for the purpose of making periodic inspections and for any other reasonable and legitimate purposes, and subject to clearance in accordance with the AEC’s security procedures. The terms of the Space Permit and Service Agreement obligated the AEC to supply certain utility services to the entire Bannister Federal Complex for GSA, and to operate and maintain (excluding long-term maintenance) utility systems within the Service Area.[2] In return, GSA agreed to pay the AEC for the cost of utility services that the contractor provided to the Service Area. GSA was to provide long-term maintenance for its own area and the Service Area, and was specifically excluded from providing such services in the designated AEC areas.

On its face, the Space Permit and Service Agreement obviously has many characteristics of a real estate lease. It is contractual in nature, since it granted the AEC long-term authority to use the Kansas City Plant in return for a “users charge,” and it also gave the AEC exclusive control and possession of the Kansas City Plant against all others, including the owner, GSA. However, even assuming that this is the “lease agreement” referred to by the employee’s representative, a close reading of the document does not support the representative’s allegations regarding the terms of the “lease agreement.” Specifically, there is nothing within the four corners of the Space Permit and Service Agreement that obligated the GSA to provide any services to the AEC at the Kansas City Plant in return for any payment or compensation, as the representative alleges.

Returning to the history of the Kansas City Plant, the file contains a February 17, 1977 letter in which GSA indicated it had transferred ownership of “122.05 acres of land. . .with improvements thereon” at the Bannister Federal Complex to ERDA, effective September 30, 1976. Clearly, from this point in time forward, any question of a “lease agreement” regarding the Kansas City Plant between GSA and another entity is foreclosed. Under the 1989 MOU in the case file, the GSA agreed to pay DOE for the utilities it provided at an agreed upon rate, and the two parties agreed to share responsibility and reimburse each other for the cost of maintaining the shared utility service distribution systems, flood control functions and joint use areas at the Bannister Federal Complex. The requirement that DOE share the cost in maintaining areas that it shared with GSA, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), since it did not obligate the GSA to provide any specific services for DOE or its contractors in exchange for compensation.

After carefully considering the entirety of the evidence now in the case file, FAB hereby makes the following:

FINDINGS OF FACT
1. The employee filed a Form EE-1 on January 30, 2012, claiming benefits for CBD under Parts B and E, and for hypertension, hearing loss and COPD/emphysema under Part E of EEOICPA.

2. The employee is a federal worker employed by GSA at the Bannister Federal Complex as an A/C
Operator and Plumber/Pipefitter.

3. The employee’s representative did not respond to FAB’s January 28, 2013 request that she submit
a response satisfying the criteria for issuing a subpoena in connection with her client’s Part B claim.

4. The medical evidence is not sufficient to establish a statutory diagnosis of CBD under Part B
using either the pre-1993 or post-1993 statutory criteria.

5. There is no evidence to show that either GSA or its predecessors entered into a contract with Honeywell or its predecessors in which it agreed to perform any specific services for the DOE contractor at the Kansas City Plant in exchange for compensation.

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

CONCLUSIONS OF LAW
The benefits available under Parts B and E of EEOICPA are only payable to claimants who satisfy the eligibility requirements set out in the statute. Pursuant to 20 C.F.R. § 30.111(a), the claimant has the
burden of providing all documentation necessary to establish eligibility for benefits and of proving “by a preponderance of the evidence the existence of each and every criterion,” except as provided in the regulations or the statute, required for eligibility. That same section also notes that “Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved it true.”

With respect to the employee’s claim under Part B, a “covered beryllium employee” is defined in § 7384l(7)(A) of EEOICPA as a federal employee “who may have been exposed to beryllium at a Department of Energy facility.” Because the employee here is presumed to have been exposed to beryllium at the Kansas City Plant, a DOE facility, he meets the test of a covered beryllium employee. Despite this, the medical evidence of record fails to meet three of the five criteria for diagnosing CBD prior to January 1, 1993 as set out at § 7384l(13)(B), because the employee did not submit any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory disorder, or any immunologic tests showing beryllium sensitivity. Also, the employee did not submit any evidence of an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells, as is required to establish a diagnosis of CBD on or after January 1, 1993 pursuant to § 7384l(13)(A). Therefore, he has not met his burden to proof to establish that he has the alleged illness of CBD under Part B of EEOICPA.

As for the representative’s timely request for the issuance of a subpoena in connection with the March
28, 2013 hearing in this matter, the record establishes that the representative was properly informed of
the criteria in 20 C.F.R. § 30.301(b) for issuing a subpoena relating to her client’s Part B claim, and that
she failed to respond within the period of time allotted. In addition, and as noted above, DEEOIC’s
authority to issue subpoenas is strictly limited by the terms of 42 U.S.C. § 7384w to claims under Part
B. Therefore, the January 28, 2013 letter that preliminarily denied the representative’s request for a
subpoena under Part E was correct, and the record also shows that she did not respond to the January
28, 2013 request that she fulfill the regulatory criteria for issuing a subpoena under Part B.

And with regard to his Part E claim, the employee’s representative alleged that the employee qualifies as a DOE contractor employee because he performed maintenance work on the grounds of the Kansas City Plant pursuant to contracts between GSA and DOE (and their predecessors), for which GSA and its predecessors were paid. However, FAB concludes otherwise. As set out at length above, there is no evidence of a contract between GSA and DOE (or their predecessors) for GSA to provide services for DOE or its contractor at the Kansas City Plant in return for compensation, as alleged. Neither the 1962 Space Permit and Service Agreement nor the 1989 MOU obligated GSA to provide any specific services at the Kansas City Plant in exchange for compensation. The mere requirement that DOE share the cost of maintaining areas that it shared with GSA at the Bannister Federal Complex, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), because it did not obligate the GSA to provide any specific services to DOE or its contractors in exchange for compensation. Moreover, the agencies’ environmental investigation work described in the 1993 MOA was due to their respective statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and Liability Act and not pursuant to a contract between the agencies. See Chapter 2-500.16 (January 2010), Federal (EEOICPA) Procedure Manual. Thus, because the evidence in the case file does not prove the existence of the alleged contract, the employee has failed to meet his burden of proof to establish that he is a DOE contractor employee under Part E of EEOICPA. Under these circumstances, he is not entitled to any Part E benefits.

Accordingly, FAB hereby denies the employee’s claim under both Parts B and E of EEOICPA, and
confirms the January 28, 2013 preliminary denial of his representative’s subpoena request.

Denver, CO
William Elsenbrock
Final Adjudication Branch
Hearing Representative

[1] The Kansas City Plant is a government-owned, contractor-operated installation listed as a DOE facility from November 5, 1948 to the present in the latest Federal Register notice. 78 Fed. Reg. 20950 at 20952 (April 8, 2013). The facility comprises approximately two-thirds of the 300-acre Bannister Federal Complex, and currently consists of a large manufacturing building and 36 other buildings. The remaining one-third of the Bannister Federal Complex is owned by GSA.

[2] For example, at the March 28, 2013 oral hearing, a former GSA General Foreman at the Bannister Federal Complex testified that “Bendix provided the Federal Building at 2306 Bannister Road, steam from their power plants” and that “DOE, Bendix, operated the powerhouses with their people.”

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

NOTICE OF FINAL DECISION

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

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

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

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

The district office sent [Employee]’s medical records to a District Medical Consultant (DMC) for review. In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and seven actinic keratoses. The DMC noted that the final pathology diagnosis of the keratosis of the index finger was consistent with an arsenical keratosis. The DMC therefore concluded that [Employee]’s exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin lesions of keratoses of his hands.

The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found in cases of asbestos exposure. The DMC determined that it is at least as likely as not that [Employee]’s exposure to toxic substances while working at the SRS was a significant factor in contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal disease.

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

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

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

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

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

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

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

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

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

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

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

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

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

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch

page 192
EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008)

NOTICE OF FINAL DECISION

As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic substances. However, the DMC noted that the medical notes stated that [Employee]’s aneurism was unable to be surgically corrected as a result of other significant medical problems, one of which was his moderately severe COPD. As a result, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were a significant factor in aggravating his aneurism. With respect to pulmonary hypertension, the DMC noted that it can be caused by chronic lung disease and certainly contributes to congestive heart failure (CHF). Therefore, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were significant contributing factors in the development of his CHF.

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

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

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

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

CONCLUSIONS OF LAW
Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a) (2009). Under Part E of EEOICPA, a “covered illness” is an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2). As found above, the medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]’s skin cancers, skin lesions, CHF, abdominal aortic aneurism, interstitial basilar pleural parenchymal disease and COPD. That same evidence does not establish that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]’s blindness or atherosclerotic peripheral vascular disease.

Armando J. Pinelo
Hearing Representative
Final Adjudication Branch

page 201
EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 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. Upon a careful review of the facts and an independent review of the record the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE
On March 22, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of prostate cancer, emphysema and possible lung cancer. You also provided a Form EE-(Employment History), on which you indicated that you worked at the Weldon Spring Plant from 1to 1967, and that you wore a dosimetry badge.

Information obtained from a Department of Energy (DOE) representative and the Oak Ridge Institute for Science and Education database indicated that you worked as a contractor employee at the Weldon Spring Plant from July 17, 1956 to June 30, 1966. The Weldon Spring Plant is recognized as a covered DOE facility from 1957 to 1967 and 1985 to the present (for remediation). See Department of Energy Office of Worker Advocacy, Facility List. By letters dated March 31, May 5, and June 14, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but additional medical evidence was needed in order to establish a claim. You were requested to provide documentation of a covered occupational illness, specifically, cancer.

You provided medical documentation which indicated that you received treatment for conditions including hypertension, diabetes mellitus, bronchitis and emphysema. In addition, a hospital discharge summary report from a hospital stay from April 15 to April 16, 1993, indicated that you were admitted o the hospital for a medical procedure following a radical prostatectomy, which was performed “in order to allow the patient to be treated for his cancer of the prostate.” The date of diagnosis of prostate cancer was not noted.

The record also includes several telephone messages, which indicate that you, with the assistance oyour authorized representative, have been trying to obtain the medical records pertaining to your diagnosis of prostate cancer and the date of diagnosis, but that you have not yet received the medical records.
On July 16, 2004, the Seattle district office recommended denial of your claim for benefits. The
district office concluded that you did not provide sufficient evidence as proof that you were diagnowith a covered occupational illness as defined by § 7384l(15) of the Act. See 42 U.S.C. § 7384l(15The district office further concluded that you were not entitled to compensation as outlined under §
7384s of the Act. See 42 U.S.C. § 7384s.

FINDINGS OF FACT
1. You filed a claim for employee benefits on March 22, 2004.

2. You worked at the Weldon Spring Plant, a covered Department of Energy facility, from July 11956 to June 30, 1966.

3. You did not submit sufficient medical evidence establishing a date of diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW
The undersigned has reviewed the recommended decision issued by the Seattle district office on Ju16, 2004. I find that you have not filed any objections to the recommended decision as provided by30.316(a) of the regulations and that the sixty-day period for filing such objections, as provided forsection 30.310(a) has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the EEOICPA, you must establish that you were diagnosed with a designated occupational illness incurred as a result of exposure to silica, berylliumand/or radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 42 U.S§ 7384l(15), 20 C.F.R. § 30.110(a).

You filed a claim based on the condition of emphysema, which is not a compensable illness under PB of the Act. You also filed a claim based on prostate cancer and possible lung cancer. Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnoof cancer and the date on which the diagnosis was made. See 20 C. F. R. § 30.211.

The record in this case shows that by letters dated March 31, May 5, and June 14, 2004, you were requested to provide the required information to prove a medical condition. While a hospital dischreport dated April 16, 1993, contains a reference to your treatment for prostate cancer, the evidencerecord does not contain a date of diagnosis of this cancer. Without the date of prostate cancer diagnosis, it is not possible to determine if this cancer was related to your employment at the WeldoSpring Plant. In regard to you claim for possible lung cancer, the medical documentation of record does not indicate a diagnosis of lung cancer.

It is the claimant’s responsibility to establish entitlement to benefits under the Act. The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by the preponderance the evidence, the existence of each and every criterion under any compensable claim category set fin section 30.110. Proof by a preponderance of the evidence means that it is more likely than not ththe proposition to be proved is true. Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ CompensatioPrograms all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations. See 2C.F.R. § 30.111(a).

The record in this case shows that you did not provide sufficient medical documentation of a coveroccupational illness under the Act. Therefore, your claim must be denied.

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

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

page 335
EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003)

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

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

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

On August 20, 2001, a representative of the Department of Energy (or DOE) indicated that “none of the employment history listed on the EE-3 form was for an employer/facility which appears on the Department of Energy Covered Facilities List.” Also, on August 29, 2001, a representative of the DOE stated in Form EE-5 that the employment history contains information that is not accurate. The information from the DOE lacked indication of covered employment under the EEOICPA.

The record in this case contains other employment evidence for [Employee]. With the claim for benefits, you submitted a “Request and Authorization for TDY Travel of DOD Personnel” Form DD-1610, initiated on November 10, 1971 and approved on November 11, 1971. [Employee] was approved for TDY travel for three days to perform work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers beginning on November 15, 1971. He was employed as a Mobile Equipment Mechanic WG-12, and the purpose of the TDY was noted “to examine equipment for potential use on Blair Lake Project.” The security clearance was noted as “Secret.” You also submitted numerous personnel documents from [Employee]’s employment with the Alaska District Corp of Engineers. Those documents include a “Notification of Personnel Action”
Form SF-50 stating that [Employee]’s service compensation date was December 2, 1944, for his work as a Heavy Mobile Equipment Mechanic; and at a WG-12, Step 5, and that he voluntarily retired on May 30, 1975.

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

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

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

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

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

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

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

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

You also submitted the following additional documentation on January 20, 2003: (1) A copy of [Employee’s] Last Will and Testament indicated that you, [Claimant], were the adult daughter and named her as Personal Representative of the Estate; (2) Statements by Jeanne Findler McKinney and Jean M. Peterson acknowledged on January 17, 2003, indicated that you lived in a parent-child relationship with [Employee] since 1945; (3) A copy of an affidavit signed by [Name of Natural Mother Assuming Employee’s Last Name] (duplicate) indicated that at the time of your mother’s marriage to [Employee], you took the name [Name of Claimant Assuming Employee’s Last Name].

You submitted additional employment documentation on January 27, 2003: (1) A copy of [Employee]’s TDY travel orders (duplicate); (2) A Memorandum of Appreciation dated February 11, 1972 from the Department of the Air Force commending [Employee] and other employees, for their support of the Blair Lake Project; (3) A letter of appreciation dated February 18, 1972 from the Department of the Army for [Employee]’s contribution to the Blair Lake Project; and (4) Magazine and newspaper articles containing photographs of [Employee], which mention the work performed by the U.S. Army Corps of Engineers in Anchorage, Alaska.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(B) An individual who is or was employed at a Department of Energy facility by-

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

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

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

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

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

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

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

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

A DOE employee or a DOE contractor employee, who was present for a number of workdays aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for test or experiments related to an atomic weapon. See 42 U.S.C. § 7384r(c) and (d); 20 C.F.R. § 30.220(a). Consequently, even if the evidence showed DOE employment (which it does not since [Employee] worked for the DOD), he was present only three days on Amchitka, which is not sufficient for the 250 days required under the Act as a covered employee with silicosis.

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

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

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

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

page 740
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.

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.

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 764
EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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.

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:

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:

Washington, DC
Tom Daugherty
Hearing Representative
Final Adjudication Branch

page 989
EEOICPA Fin. Dec. No. 82961-2008 (Dep’t of Labor, March 27, 2008)

NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, FAB accepts and approves the claims for benefits [of Claimant #1, 2, 3, 4 and 5] under Part B for the employee’s epiglottis cancer, and awards compensation to those five persons in the total amount of $150,000.00, to be divided equally. Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her additional
compensation in the amount of $125,000.00.

STATEMENT OF THE CASE
On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease. The record includes a copy of [Employee]’s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease. [Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980. DOE verified [Employee]’s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

On October 16, 2005, [Employee’s Spouse] died, and her claim was administratively closed.

On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2. Each claimed benefits as the surviving child of [Employee]. [Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname. [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname. The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].

Medical documentation in the record includes a document from the New Mexico cancer registry that provides a diagnosis of cancer of the epiglottis on April 25, 1989; a January 11, 2005 letter from Dr. Charles McCanna, in which he indicated that [Employee] died from complications of epiglottis (throat) cancer; another letter from Dr. McCanna stating that the employee’s medical records are no longer available; and a letter from St. Vincent Hospital dated January 24, 2005, indicating that their
records had been destroyed.

On June 5, 2007, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether the employee’s cancer of the epiglottis was “at least as likely as not” related to his covered employment. However, the case was returned on March 14, 2008 so the district office could review it to determine if the employee was included in the designation by the Secretary of Health and Human Services (HHS) of certain LANL employees as an addition to the Special Exposure Cohort (SEC).

On September 11, 2007, FAB issued a final decision on the Part E claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4], concluding that these claimants are not eligible “covered” children under Part E.

On March 14, 2008, the Seattle district office received information from a Department of Labor Health Physicist (HP) on the question of whether cancer of the epiglottis is a “specified” cancer. The HP stated the following:

National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx. 20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA. The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus. The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer. On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E. The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer. The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally. Further, the district office concluded that a determination that a DOE contractor employee and
qualified member of the SEC is entitled to compensation for an occupational illness under Part B is
treated for purposes of Part E as a determination that the employee contracted that illness through
exposure at a DOE facility, and since [Claimant #5] was under the age of 18 at the time of
[Employee]’s death, she is the only eligible survivor under Part E and is entitled to compensation in
the amount of $125,000.00.
The claimants each indicated on their respective Forms EE-2 that neither they nor anyone in their
family had ever filed for or received any proceeds from either a tort suit or a state workers’
compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or
been convicted of any charges connected with an application for or receipt of federal or state workers’
compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].

On March 20, 2008, FAB received written notification from [Claimant #1, 2, 4 and 5], indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision. On March 24, 2008, FAB received written notification from [Claimant #3], indicating she also waives all rights to file objections to the findings of fact and conclusions of law in the recommended decision. After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT
1. On December 13, 2006 [Claimant #1]and [Claimant #2]; and on January 4, 2007 [Claimant #3], [Claimant #4] and [Claimant #5] each filed a claim for survivor benefits under EEOICPA.

2. [Employee] was diagnosed with epiglottis cancer on April 25, 1989.

3. [Employee] died on September 1, 1990, due to acute bronchopneumonitis, with a contributing factor of coronary artery disease; which were complications of his epiglottis (throat) cancer.

4. [Employee] worked at LANL as a security guard with the AEC from May 15, 1972 to January 9, 1981, and with the University of California, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

5. There is a causal connection between the employee’s death due to epiglottis cancer and his exposure to radiation and/or a toxic substance at a DOE facility.

6. [Claimant #1, 2, 3, 4 and 5] are the eligible children of [Employee] under Part B.

7. [Claimant #5] was 17 years of age at the time of [Employee]’s death.

8. All five claimants indicated on their respective Form EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee]. Based on the above-noted findings of fact, FAB hereby also makes the following:

CONCLUSIONS OF LAW
Section 30.316(a) of the 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. See 20 C.F.R. § 30.316(a). All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims.

In order for him to be considered a covered Part B employee, the evidence must establish that [Employee] was diagnosed with an occupational illness incurred as the result of his exposure to silica, beryllium, or radiation, and those illnesses are cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, EEOICPA requires that the illness must have been incurred while the employee was “in the performance of duty” for DOE or certain of its vendors, contractors, subcontractors, or for an atomic weapons employer. See 42 U.S.C. §§ 7384l(4)-(7), (9), and (11).

On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor 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 a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC. The new SEC class became effective on July 22, 2007.

The employment evidence is sufficient to establish that [Employee] was employed at LANL for an aggregate of at least 250 work days, as a security guard, and therefore he is considered to be an eligible member of the class of employees who worked at LANL from March 15, 1943 through December 31, 1975 that was added to the SEC.

[Employee] is a member of the SEC who was diagnosed with epiglottis cancer, which is cancer of a part of the pharynx (a “specified” cancer), more than 5 years after his initial exposure, and therefore he is a “covered employee with cancer.” See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A) and 20 C.F.R. § 30.5(ff)(5)(iii)(E). Therefore, as the employee is now deceased, the five claimants are entitled to compensation in the total amount of $150,000.00, divided in equal shares of $30,000.00 each. See 42 U.S.C. § 7384s(a) and (e).

purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility. See 42 U.S.C. § 7385s-4(a). Consequently, [Employee]’s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility. The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]’s death. As the employee would have been entitled to compensation for his covered illness under Part E; 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 the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1). [Claimant #5] was 17 years of age at the time of [Employee]’s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00. See 42 U.S.C. §§ 7385s-3(a) (1), 7385s-3(d).

Seattle, Washington
Keiran Gorny
Hearing Representative
Final Adjudication Branch

page 1111
EEOICPA Fin. Dec. No. 55317-2004 (Dep’t of Labor, September 21, 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 denied.

On March 8, 2004, you filed a claim for benefits under the EEOICPA, Form EE-1, wherein you identified emphysema and chronic beryllium disease (CBD) as the medical conditions being claimed. On the EE-3 form, you indicated that you were employed at the Paducah Gaseous Diffusion Plant (PGDP[1] during the early 1950’s. On March 16, 2004, the district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify your claimed employment, but no records were found. On April 6, April 28 and May 6, 2004, the Department of Energy (DOE) advised the district office that they found no evidence to verify your claimed employment. However, DOE did obtain a security clearance card, which indicated that you were given security clearance to work for Slater System, Inc./F.H. McGraw & Company at an unidentified DOE facility between May 22, 1952 and July 2, 1952 and clearance to work for Carbide & Carbon at an unidentified DOE facility between February 25, 1953 and May 11, 1953.

On April 8, 2004, the district office received your itemized statement of earnings from the Social Security Administration (SSA), Form SSA-1826, which covered the time period between January, 1949 and December, 1955. The earnings statement indicated that you received earnings from Slater System Maryland, Inc. during the second quarter of 1952. By letter dated March 24, 2004, the district office advised you of the kinds of employment evidence you would need to establish covered employment under the Act. By letter dated May 25, 2004, the district office requested that you submit an employment history affidavit, Form EE-4, from a co-worker to establish that you worked on-site at the PGDP during a covered time period. No response was received. Nonetheless, the district office erroneously concluded that the combination of your security clearance card and SSA earnings statement was sufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.

Specifically, pursuant to EEOICPA Bulletin No. 03-27 (issued May 28, 2003) Item #22, “if the CE [claims examiner] can verify that the employee worked for a subcontractor during a covered time frame on the premises of a designated DOE or beryllium vendor facility, a finding can be made for covered employment.” Additionally, pursuant to Item #4, “security clearance documents just provide evidence that security clearance was requested but does not establish presence on the facility.” And, finally, pursuant to Item #12, SSA records will not assist in determining the presence of the employee on the premises of the covered facility. Therefore, your security clearance card and SSA earnings statement are insufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.

By letter dated March 24, 2004, the district office advised you of the specific medical evidence necessary to establish CBD under the Act and enclosed a Form EE-7, which listed the specific medical evidence necessary to establish a covered medical condition under the Act. The district office also advised you that emphysema is not a covered medical condition under the Act. On April 2, April 12, May 26, and June 10, 2004, the district office received medical records from the resource center, dated between March 12, 1992 and February 7, 2002, which established that you were diagnosed with sinusitis, hypertension and several other non-covered medical conditions.[2]

The following relevant medical records were included in the aforementioned medical evidence: 5 medical progress notes from Dr. N.L. Still, dated between August 11, 1992 and November 17, 1992, in which you were diagnosed with chronic obstructive pulmonary disease (COPD); a September 15, 1999 medical report by Dr. D. Patel, in which he stated that you saw a pulmonologist and were diagnosed with COPD; a January 18, 2000 medical report by Dr. D. Patel, in which he stated that you had acute bronchitis; a February 4, 2002 medical report by Dr. Hima Alturi in which he stated that you had a persistent cough; an October 30, 2002 medical report by Dr. D. Patel, in which he stated that you had “questionable emphysema;” a March 12,1992 radiology report from Decatur Hospital, in which they found “discoid atelectasis of both bases with minimal increase in the interstitial markings, otherwise negative chest;” a May 27, 1992 radiology report from Decatur Hospital, in which they found “minimal bibasilar discoid atelectasis; an August 12, 1992 radiology report from Decatur Hospital, in which they found “scarring or atelectasis” in the left lung; a December 2, 1994 x-ray report from Decatur Hospital, in which they found “bibasilar linear infiltrates which may represent atelectasis or fibrosis;” a February 11, 1995 x-ray report from Decatur Hospital, in which they found “no acute pulmonary disease;” and a July 28, 1995 radiology report from Decatur Hospital, in which they found “no acute disease of the chest.”

By letter dated May 25, 2004, the district office advised you that the aforementioned medical evidence was insufficient to establish that you were diagnosed with CBD under the Act and listed the specific medical evidence necessary to establish the same. You were afforded 30 days to establish that you were diagnosed with a covered medical condition, but no response was received. A “covered employee,” as defined in § 7384l(1),(3),(7),(9) and (11) and § 7384r of the EEOICPA, includes employees of private companies (an entity “other than the United States,” per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors. 42 U.S.C. §§ 7384l(1),(3),(7),(9) and (11); 7384r.

Additionally, pursuant to § 7384l(13) of the EEOICPA, “The term ‘established chronic beryllium disease’ means chronic beryllium disease as established by the following: (A) For diagnosis on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including-(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary function or exercise test showing pulmonary deficits consistent with chronic beryllium disease. (B) For diagnosis before January 1, 1993, the presence of-(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and (iii) any three of the following criteria: (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV) Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13). And, finally, pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).

On June 8, 2004, the district office issued a recommended decision, which concluded that you were a covered beryllium employee, pursuant to § 7384l(7) of the Act, that you were exposed to beryllium in the performance of duty, pursuant to § 7384n(a) of the Act, that you failed to submit sufficient medical evidence to establish that you were diagnosed with CBD, pursuant to § 7384l(13) of the Act and that emphysema is not a covered occupational illness, pursuant to § 7384l(15) of the Act. 42 U.S.C. §§ 7384l(7),(13), and (15); 7384n(a). Therefore, it was recommended that benefits under the EEOICPA be
denied.

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

Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a). I find that you have not objected to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations. 20 C.F.R. §
30.310(a).

Based on my review of the case record and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that there is insufficient evidence to establish that you are a covered employee, pursuant to § 7384l of the Act, and that there is insufficient evidence to establish that you were diagnosed with a covered medical condition, pursuant to § 7384l(15) of the Act. Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Washington, DC
Richard Koretz
Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Paducah Gaseous Diffusion Plant (PGDP) in Paducah, KY is a covered DOE facility from 1952 to the present. Also, according to the Office of Worker Advocacy, the PGDP had throughout the course of its operations the potential for beryllium exposure.

[2] Benign prostate nodule, colon polyps, lumbar spinal stenosis, degenerative arthritis, leucopenia, chronic venous disease, sciatica, “questionable emphysema” and chronic obstructive pulmonary disease (COPD).

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21:00 28 Sep 23

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