The EEOICPA was passed in 2000. It provides compensation to workers who became ill as a result of their employment manufacturing nuclear weapons in the USA, as well as their spouses, children, and grandchildren.
Are you eligible for compensation? If you or a family member worked at any of the Atomic Weapons Employer (AWE) and Department of Energy (DOE) Covered Facilities listed on this website and became ill, you may be entitled to compensation of up to $400K plus medical benefits. Call EEOICPA Counsel Hugh Stephens at 1-855-548-4494 or fill out our free claim evaluation, We can help even if you’ve already filed, even if your claim was denied!
In these pages, we present general definitions of Illnesses covered by the Act, followed by specific references to the disease from the EEOICPA Procedure Manual, Bulletins, and Final Decisions of the Final Adjudication Board to clarify how these maldies might relate to the Energy Employees Occupational Illness Compensation Program Act.
Lung Cancer
Below we have collected specific references to lung cancer from the DEEOIC Procedure Manual, Bulletins, Circulars, and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.
Note: Page numbers below refer to the documents available on our DEEOIC Resources page.
A.D.A.M. Medical Encyclopedia:
Lung cancer is a cancer that starts in the lungs. When a person has lung cancer, they have abnormal cells that cluster together to form a tumor. Unlike normal cells, cancer cells grow without order or control and destroy the healthy lung tissue around them. These types of tumors are called malignant tumors.
There are two main types of lung cancer: small cell lung cancer (SCLC) and non-small cell lung cancer (NSCLC). Non-small cell lung cancer is more common. It makes up about 80 percent of lung cancer cases. This type of cancer usually grows and spreads to other parts of the body more slowly than small cell lung cancer does. There are three different types of non-small cell lung cancer: adenocarcinoma, squamous cell carcinoma and large cell carcinoma. Each type is different, but they are grouped together because they are treated similarly. There are two different types of small cell lung cancer: small cell carcinoma (oat cell cancer) and mixed small cell/large cell cancer or combined small cell lung cancer. The types of small cell lung cancer are named for the kinds of cells found in the cancer and how the cells look when viewed under a microscope. Small cell lung cancer is almost always associated with cigarette smoking. It is important to know the type of lung cancer you have because it helps determine what treatment options are available.
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uu. Specified Cancers are listed in Section 30.5(ff) of the regulations. An employee must be diagnosed with one of these specific types of cancer to be considered eligible for benefits as a member of the Special Exposure Cohort (SEC). The list of specified cancers, which is derived from section 4(b)(2) of the RECA Amendments of 2000, is as follows:
(1) Primary or secondary lung cancer (other than a diagnosis of in situ lung cancer that is discovered during or after a post-mortem exam). Cancer of the pleura is also excluded;
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7. Specified Cancers: In addition to satisfying the employment
criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff): b. Primary or Secondary Lung Cancer. [In situ lung cancer that is discovered during or after a post-mortem exam is excluded.] The pleura and lung are separate organs, so cancer of the pleura is not to be considered an SEC cancer.
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2. Rules for Establishing Exposure. To establish that an employee was exposed to a toxic substance, the evidence of file must show evidence of potential or plausible exposure to a toxic substance and evidence of covered DOE contractor/subcontractor or uranium employment at a covered DOE/RECA facility during a covered time period.
b. Presence and Contact. Whenever possible, the claims examiner (CE) considers such issues as whether the substance was present, not only in the facility, but in the specific building(s) and/or areas where the employee worked, and whether the substance was used during the processes involved as part of the employee’s job duties and exposure routes (e.g., a welder exposed to fumes). The SEM (discussed below) will be especially helpful in evaluating for the presence of a toxic substance in a certain building/area/work process.
(3) Plausibility. When evaluating the evidence to determine whether a toxic substance was potentially present at a given facility (by building, area, work process, labor category) and whether it is likely that an employee came into contact with a toxic substance in the course of employment at a covered facility, the CE must determine whether such contact is plausible. To do so, the CE must review all evidence on file and decide whether it makes sense that the claimed exposure could have potentially occurred. Sometimes this evaluation will require a referral to an IH. For example, if an employee is claiming lung cancer due to exposure to uranium metal maintained exclusively in a glove box (an enclosure to protect the worker from uranium exposure), the CE must examine whether or not an exposure route is plausible. Without evidence that the employee was involved in machining uranium or cleaning out the glove box, or that he or she was exposed in some other way such as a leak in the glove box, no exposure route (inhalation which would potentially be linked to lung cancer) is plausible.
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6. Weighing Medical Evidence. When medical evidence is submitted from more than one source, the CE must evaluate the relative value, or merit, of each piece of medical evidence. This is particularly important in cases where there is a conflict between the medical evidence received from the DMC and the treating physician. A thorough understanding of how to weigh medical evidence will assist the CE in determining when and how further medical development should be undertaken and assigning weight to the medical evidence received.
b. In weighing medical evidence, the CE evaluates the probative ical evidence, value of each piece of the evidence of file and considers the following questions with respect to each report.
(3) Is the physician’s opinion based upon a complete and accurate medical and factual history? For example, a physician opined that his patient’s lung cancer is related to exposure to diesel engine exhaust. This doctor’s opinion has less probative value if the doctor erroneously cites an incorrect date of diagnosis or exposure date.
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8. Preparing Non-SEC Cancer Claim Files for Referral to NIOSH. This preparation includes completion of a NIOSH Referral Summary Document (NRSD). The NRSD (Exhibit 1) is a tabular form containing the medical and employment information accepted by the CE as factual. This form provides NIOSH with the necessary information to proceed with the dose reconstruction process.
b. Smoking History. The employee’s smoking history is required for cases that include primary lung cancer (including primary trachea, bronchus, and lung) or for secondary cancer with an unknown primary cancer that includes lung canceras a possible primary cancer.
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18. Calculation of PoC Using NIOSH-IREP Computer Program. DOL must calculate the PoC for all cancers, except CLL, using NIOSH-IREP. The risk models developed by the National Cancer Institute and the Center for Disease Control for NIOSH-IREP provide the primary basis for developing guidelines for estimating PoC under EEOICPA. They directly address 33 cancers and most types of radiation exposure relevant to claimants covered by EEOICPA.
b. Smoking History and Racial/Ethnic Identification. The risk model for lung cancer takes into account smoking history. The risk model for skin cancer takes into account the race or ethnic identification of the claimant. (However, it does not consider exposure to sunlight, since sunlight is not a toxic substance.) None of the risk models explicitly account for exposure to other occupational, environmental, or dietary carcinogens. For cases with lung (primary or secondary, with unknown primary) or skin cancer, the CE must determine the smoking history or race or ethnic identification of the claimant.
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2. Reca Background.
b. Section 5 of RECA.
(4) Covered Illnesses. Primary lung cancer, renal cancer, other chronic renal diseases including nephritis and kidney tubal tissue injury, and the following nonmalignant respiratory illnesses: pulmonary fibrosis, fibrosis of the lung, cor pulmonale related to pulmonary fibrosis, silicosis and pneumoconiosis.
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d. NIOSH Action Codes.
(1) NI – ‘Sent to NIOSH for Dose Reconstruction’ – While the NI code is used in both ECMS B and ECMS E, the use of the code varies on B only cases versus BE cases:
(b) For B/E cases – When a non-SEC cancer claim is referred to NIOSH, or was originally referred to NIOSH as a Part B claim and a new Part E claim now exists, the CE does not input the ‘NI’ (SENT TO NIOSH) code into ECMS E to show that the claim is pending dose reconstruction at NIOSH. The ‘NI’ code is input into ECMS B only (unless the case is a RECA Section 5 case with claim for cancer other than lung cancer). The CE must concurrently develop for exposure to toxic substances for all Part E claimed conditions (cancerous and non-cancerous conditions). When toxic exposure development is complete for all claimed Part E conditions (cancerous and non-cancerous conditions) and the CE cannot accept causation, the CE creates a memorandum to file stating that the toxic exposure development is complete and then codes ‘NI’ into ECMS E. The status effective date is the date of the memorandum.
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4. General Decision Coding. When a recommended or final decision is issued, the Claims Examiner (CE), Senior Claims Examiner (SrCE), or Hearing Representative (HR) enters the appropriate claim status code(s) into ECMS. The coding must match the wording in the decision. There are three possible outcomes for each claimed element: accept, deny, or defer. Deferring a decision means that a decision is not being made on that element at this time because further development is needed, essentially holding the decision in abeyance.
It is important that decisions do not state that a decision on additional elements is being deferred unless additional elements have actually been claimed. For example, a decision should not state, “A decision regarding impairment and wage loss benefits is being deferred pending further development” if those items have never been claimed. These types of statements in decisions lead the claimant to believe they will be receiving decisions on those items, which they will not, unless claimed. If matching deferral coding is input into ECMS, it will cause reporting problems.
a. Primary Decision Codes. All decisions require at least one ‘primary’ decision code. If the decision addresses Part B benefits only, a primary decision code is entered into ECMS B. If the decision addresses Part E benefits only, a primary decision code is entered into ECMS E only. If the decision addresses Part B and Part E benefits, there is a primary decision code entered into ECMS B and a separate primary decision code in ECMS E. Generally, there is no more than one primary decision code in either ECMS B or ECMS E, per decision. Exceptions will be listed in this chapter. The status effective date for the decision codes is the date of the decision. When selecting a primary decision code, the CE/SrCE/HR must look at what is happening overall on the decision for Part B or Part E, separately. For example, if a decision is accepting lung cancer under Part B and denying it under Part E because the survivor is ineligible, the coding must reflect a primary decision code in ECMS B that only reflects an acceptance (A0/F0), while ECMS E must only reflect a denial (D3/F3). It is not coded as a partial accept/partial deny (A8/F9) in both systems.
Some primary decision codes also have reason codes associated with them that give more detail as to what is being accepted or denied. Primary recommended decision codes and their associated reason codes are discussed in detail in Paragraph 5. Primary final decision codes and their associated reason codes are discussed in detail in Paragraph 7.
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3. Signed Response Regarding Lawsuit, State Workers’ Compensation Claim and Fraud. Before a claim can be accepted under the Act, the claimant must provide a signed response (affidavit) reporting whether a lawsuit had been filed for exposure to the same toxic substance for which EEOICPA benefits are payable, or whether a state workers’ compensation (SWC) claim had been filed for the same medical condition(s), or whether the claimant has ever pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation. This signed response must be obtained regardless of the information contained on the forms EE-1 or EE-2 related to these three questions.
e. By signing the written response, the claimant agrees to notify DEEOIC of any changes in the information provided in regards to the lawsuit/SWC/fraud statement. It is not necessary to request this information again unless there is a new exposure or illness (including consequential) being accepted under EEOICPA. For instance, if the claimant had submitted a written response for lung cancer and is now filing a claim for a consequential condition of bone cancer, a new written response regarding the bone cancer is required before this consequential condition may be accepted under the Act.
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7. Tort Offset, Parts B and/or E. If the lawsuit has not adversely affected the claimant’s eligibility under Part B due to election of remedies, an offset of the potential Part B and/or E award may still be needed. EEOICPA benefits are only offset if the basis for the lawsuit and the payable EEOICPA claim are due to injuries from exposure to the same toxic substance. For example, if the claimant filed a lawsuit for lung cancer based on exposure to asbestos and the Part E claim that is payable is also based on lung cancer due to exposure to asbestos, offset is required. As long as there is one exposure that would be compensable, offset is required even if the lawsuit or EEOICPA claim is based on several other different exposures.
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Summary of Revisions to Final Rule 20 CFR Part 30
Section 30.5(dd)
Rewritten to clarify that as a specified cancer, lung cancer does not have a required latency period.
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Cancers of the pleura are different from lung cancers. NCI noted that the tissues of these two organs are different as well as the etiologies of their malignancies. Accordingly, the pleura and the lung are separate organs and a cancer of the pleura is not lung cancer.
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5. Other information that is relevant to NIOSH dose reconstruction includes race/ethnicity information (for skin cancer) and smoking history (for lung cancer). These cancers may be either primary or secondary cancers (sites to which a malignant cancer has spread). The CE should develop this information only for individuals with skin or lung cancers. The CE should request this information from the claimant early in the process so that it is available when the case is sent to
NIOSH. A sample development letter for skin cancer claimants is shown in Attachment 2. A sample development letter for lung cancer claimants is shown in Attachment 3. For the race/ethnicity information, mark one or more of the five designations shown on the NIOSH Referral Summary (Attachment 1). For the smoking history, indicate the smoking level (at the time of cancer diagnosis) using one of the seven designations shown in the NIOSH Referral Summary (Attachment 1). The smoking categories include: Never Smoked – employee who smoked no more than 100 cigarettes before the date of cancer diagnosis; Former Smoker – employee who quit smoking more than five years before the date of cancer diagnosis; and Current Smoker – employee who smoked cigarettes at the time of the cancer diagnosis or who quit smoking fewer than five years before the date of the cancer diagnosis (the cigarette smoking level should be designated as one of the following: less than 10 per day, 10 – 19 per day, 20 – 39 per day, or 40 or more per day).
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If the claim is for lung cancer or a secondary cancer for which lung cancer is a likely primary cancer, select one of the following (Note: Currently refers to time of cancer diagnosis):
[ ] Never smoked
[ ] Former smoker
[ ] Current smoker (? cig/day)
[ ] <10 cig/day (currently)
[ ] 0-19 cig/day (currently)
[ ] 20-39 cig/day (currently)
[ ] 40+ cig/day (currently)
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JOE CLAIMANT
1234 W. MAIN STREET
WASHINGTON, D.C.
Dear Mr. Claimant:
This letter concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program. We have reviewed the claim and found that the exposed employee was diagnosed with one of the following:
§ Primary Trachea
§ Bronchus
§ Lung
The next step in determining whether you are eligible for benefits is calculating whether the diagnosed cancer is reasonably related to exposure to radioactive materials during the course of covered employment. The calculation of probability of causation is based on many factors, such as the length of exposure and proximity to radiological sources, safety protection worn, the type of cancer diagnosed, etc.
We calculate the probability of causation by using a computer program to determine whether the diagnosed cancer is reasonably related to exposure during covered employment. For a claim involving primary trachea, bronchus, or lung cancer or cancers that have spread to more than one location in the body, the computer program requires that we include information about the employee’s smoking history prior to the diagnosis of cancer. Therefore, we are asking you to complete the attached questionnaire in full and return it to the address that appears at the bottom of the questionnaire. Please return the questionnaire within 30 days to avoid any delay in the claims process.
It is important that you complete the questionnaire in full and return it to us so that we can perform the probability of causation calculation. If we do not receive a fully completed questionnaire, we will be unable to perform a calculation of probability. Without a calculation of probability, we will not be able to determine whether you are entitled to benefits under this program and no award of benefits will be made.
Remember as the claimant, it is ultimately your responsibility to submit the necessary information to establish a claim under the EEOICPA. If you have any questions or concerns, please contact the District Office at XXX-XXX-XXXX or fax 202-693-1465.
Sincerely,
Claims Examiner
Employee:
File Number:
1. Check the box that best describes the smoking history of the employee named above.
Never Smoked – Employee who smoked no more than 100 cigarettes before the date of cancer diagnosis.
Former Smoker– Employee who quit smoking more than five years before the date of cancer diagnosis
Current Cigarette Smoker – Employee who smoked cigarettes at the time of the cancer diagnosis or who quit smoking fewer than five years before the date of the cancer diagnosis
2. If you checked Current Cigarette Smoker above, please check the box below that corresponds with the number of cigarettes smoked per day at the time of the cancer diagnosis:
Less than 10 per day
10 – 19 per day
20 – 39 per day
40+ per day
* Generally 20 Cigarettes Per Pack
Any person who knowingly makes any false statement, misrepresentation, concealment of fact or any other act of fraud to obtain compensation as provided under the EEOICPA or who knowingly accepts compensation to which that person is not entitled is subject to civil or administrative remedies as well as felony criminal prosecution and may, under appropriate criminal provisions, be punished by a fine or imprisonment or both.
I certify that the information provided is accurate and true.
Print Name _______________________________________________
Signature ________________________________________________
Date ____________________________
Return to: [Insert District Office address]
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Sample Recommended Decision
Statement of the Case
On September 30, 2001, Peter James filed a claim for benefits under EEOICPA seeking a $150,000 award of compensation.
The Department of Energy confirmed that Mr. James was a DOE employee at the Y-12 Plant in Oak Ridge, Tennessee from 1970-1990. The Department of Energy confirmed that he was monitored through the use of a dosimetry badge for exposure to radiation.
Mr. James submitted a medical report from Dr. Chou dated November 10, 2000 indicating that he has been receiving treatment for cancers of the kidney and lung. Mr. James also submitted a pathology report dated October 21, 1999, which showed that he has a malignant tumor in his right kidney that was most consistent with primary renal cancer. A second pathology report dated July 6, 2000 showed that he was also diagnosed with primary lung cancer.
A copy of the case file along with a NIOSH Referral Summary was forwarded to NIOSH for dose reconstruction in December 2001. On May 30, 2002, the Office received the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 28, 2002, which provided the estimates of dose to the primary kidney and primary lung sites. NIOSH estimated annual doses totaling 15 rem for the kidney and 20 rem for the lung. Based on these dose estimates, the calculation of probability of causation was completed using NIOSH-IREP, which is an interactive software program. The probability of causation for the two primary cancers was determined to be 55%.
Findings of Fact
Peter James filed a claim for benefits on September 20, 2001.
Mr. James was a covered DOE employee at the Y-12 Plant located in Oak Ridge, Tennessee from 1970 through 1990.
Mr. James was monitored through the use of a dosimetry badge for exposure to radiation during his employment at the Y-12 Plant.
On October 21, 1999, Mr. James was diagnosed with primary renal cancer.
On July 6, 2000, Mr. James was diagnosed with primary lung cancer. These diagnoses were made after Mr. James began his employment with the Department of Energy.
NIOSH reported annual dose estimates for the kidney and lung from the date of initial radiation exposure at Y-12 to the date of cancer diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including Mr. James’ involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 28, 2002. Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at Y-12) was calculated for the two primary cancers. The probability of causation values were determined using the upper 99 percent credibility limit, which helps minimize the possibility of denying claims to employees with cancers likely to have been caused by occupational radiation exposures. It was shown that the Mr. James’ renal and lung cancers were “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Y-12 Plant.
Conclusions of Law
The dose reconstruction estimates were performed in accordance with 7384n(d) of EEOICPA and 42 CFR Part 82 §82.26. The Probability of Causation was completed in accordance with 7384n(c) (3) of EEOICPA and Subpart E of 42 CFR Part 81. Further, the calculation based on two primary cancer sites was completed in accordance with 42 CFR Part 81 §81.25. The claimant is entitled to compensation in the amount of $150,000 pursuant to 7384s of EEOICPA. He is also entitled to medical benefits for primary renal cancer and primary lung cancer.
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12-13 (1) Sarcoma of the lung is a specified cancer. (2) When cancer of the fallopian tubes is considered to be ovarian cancer, which is a specified cancer.
EEOICPA CIRCULAR NO. 12-13 May 11, 2012
SUBJECT: (1) Sarcoma of the lung is a specified cancer.
(2) When cancer of the fallopian tubes is considered to be ovarian cancer, which is a specified cancer. The purpose of this Circular is to provide clarification on two cancers that can be considered as specified cancers under the Special Exposure Cohort (SEC). The Division of Energy Employees Occupational Illness Compensation asked the National Cancer Institute (NCI) to provide guidance on whether the above-referenced cancers can be included as specified cancers. The guidance provided by
NCI is as follows:
(1) Sarcoma of the lung: Sarcoma refers to a diverse group of cancerous tumors found in various locations in the body such as the bones and soft tissue (also called connective tissue). Primary lung sarcomas are classified according to their histological features. Sarcoma of the lung is considered a lung cancer.
(2) Cancer of the fallopian tube: An endometrioid adenocarcinoma of the fallopian tube is considered as an ovarian cancer under the following condition: An endometrioid carcinoma of the fallopian tube from which a transition zone is identified and where the endometrium is negative should be called a primary endometrioid carcinoma of the fallopian tube. High-grade endometrioid carcinoma involving the fallopian tube may also involve the ovary. If both organs are involved, the convention is to call it ovarian cancer.
Lung cancer and ovarian cancer are specified cancers under the SEC. Therefore, the DEEOIC has determined that this information allows for the two cancers as described above to be treated as specified cancers under the SEC.
RACHEL P. LEITON
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Section
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EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004)
NOTICE OF FINAL DECISION
This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on the above designated 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 stated below, your claim for benefits is hereby denied.
STATEMENT OF THE CASE
You filed an EE-2 on March 18, 2002 claiming your spouse, the employee, was diagnosed with cancer and renal disease as a result of his employment at a DOE facility. The Employment History Form you completed indicated he was employed with Emmett Lowry Construction Company at the Texas City Chemical Plant and “other construction companies” at the Texas City Chemical Plant. He worked out of Laborer’s Local #116 from the 1950’s to the 1960’s. You submitted a death certificate showing that he died on May 23, 1997 due to lung cancer and at the time of his death, you were his spouse. A pathology report dated April 2, 1997 established his diagnosis of lung cancer. On April 17, 2002 your EE-2 was faxed to the district office from Congressman Nick Lampson’s office, and it is noted that on that EE-2, you checked “other lung condition” as well as cancer and renal disease.
On June 28, 2002, the U.S. Department of Energy responded to a request for confirmation that the employee worked at Texas City Chemicals, from the 1950’s, 1960’s and 1970’s. They responded by stating that they had no information on the employee. An affidavit was received from Willie Williams stating he worked with the employee at Bellco Industrial Engineering American Oil Company and worked out of Labor Hall #116 for A.A. Pruitt Construction, American Oil Company, PG Bell Southwest Industrial Company, and for Amoco Chemical.
Another affidavit was received from Eligah Smith stating he worked at Amoco Chemical Company in 1957 to 1964 and saw the employee working with other construction workers. An affidavit from Lloyd C. Calhoun stated he worked for Bellco Industrial, American Oil Company out of Union Hall #116 from 1952 to 1954 with the employee and for Emmett Lowry Construction from 1954 to 1958. An affidavit from Henry Williams stated that he worked with the employee at Amoco Chemicals, Bellco Industrial Engineering in 1951 to 1955, and for A.A. Pruitt Construction at Amoco Chemical in the 1950’s to the 1960’s.
Amoco Chemical, akaTexas City Chemicals, Inc. was an Atomic Weapons Employer from 1952 to 1956.
Also received were your spouse’s social security administration records. However none of the employment evidence showed the employee worked directly for Texas City Chemical. You submitted medical evidence that included a pathology report that diagnosed the employee with lung cancer on April 2, 1997. The district office erroneously forwarded your case to NIOSH for dose reconstruction.
On March 15, 2004 and March 22, 2004 the district office notified you by letter that contractors and subcontractors of Atomic Weapons Employers are not entitled to compensation under the EEOICPA and requested that you send evidence that the employee was directly employed with Texas City Chemicals. You were given 30 days to submit such evidence.
On March 22, 2004 and April 7, 2004 the claims examiner contacted you by telephone to discuss the EEOICPA and to explain that contractors and subcontractors at AWE facilities are not covered under the Act.
On April 15, 2004, the Denver district office recommended denial of your claim on the basis that the evidence submitted did not establish [Employee]was employed at a covered facility during a covered period.
Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch pursuant to 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).
On June 15, 2004 you filed an objection to the recommended decision, and stated you disagreed with the recommended decision. You requested an oral hearing.
A hearing was held on September 1, 2004 in Houston, Texas. You attended the hearing and were accompanied by Stephen Holmes, Galveston County Commissioner. At the hearing Mr. Holmes testified that the difference between atomic weapons employers and those that worked for the DOE is not very clear in the fact sheets provided by the Department of Labor. Also, contractors and subcontractor at other sites are covered. The contractors and subcontractors at the AWE facilities handled the same materials that employees of the DOE handled and they did the same type of work.
No exhibits were presented at the hearing. On October 3, 2004, the Final Adjudication Branch received a fax from you. The fax requested that I reconsider the recommendation of your claim. You stated that the EEOICPA Fact Sheet, the Federal Register and the list of Frequently Asked Questions stated that covered workers within Texas City Chemicals (American Oil Company, Borden, Inc. Smith- Douglas, Amoco Chemical Company) 1952-1956 will include contractors or subcontractors. You also stated that the district office sent your claim to NIOSH, your claim was in process before and after the amendment of October 27, 2003, that you were led to believe that EEOICPA had approved your claim.
After considering the case record of the claim, the recommended decision forwarded by the Denver district office, and your testimony at the hearing, the FAB hereby makes the following:
FINDINGS OF FACT
1.You filed a claim for survivor benefits under the EEOICPA on March 18, 2002.
2.You claimed the employee, [Employee], contracted lung canceras a result of his employment at a DOE facility, Texas City Chemicals.
3.You submitted medical evidence of lung cancer, a covered medical condition under the Act.
4.Texas City Chemicals is an Atomic Weapons Employer.
5.The employment evidence submitted does not establish [Employee]worked directly for Texas City Chemicals, rather, it shows he worked for subcontractors to Texas City Chemicals.
6.You submitted a marriage certificate establishing you are the eligible beneficiary of [Employee]. You also submitted a death certificate showing you were his spouse at the time of his death.
Based on the above-noted findings of fact in this claim, the FAB hereby also makes the following:
CONCLUSIONS OF LAW
1. The purpose of the EEOICPA, as stated in 42 U.S.C. § 7384d(b), is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” Section 7384l(3) defines the term “atomic weapons employee” to mean an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling. In order to be afforded coverage as defined by 42 U.S.C. § 7384l(15) of the EEOICPA, a claimant must establish that the claimed employee was a covered employee who had been diagnosed with an “occupational illness” which means “a covered beryllium illness, cancer referred to in section 7384l(9)(B), specified cancer, or chronic silicosis, as the case may be.” The evidence in your case establishes the employee was diagnosed with a covered condition, however, the evidence does not support he was a covered employee employed at a covered facility.
2. Chapter 2-500.6a (June 2002) of the Federal (EEOICPA) Procedure Manual states that subcontractors and contractors of AWE facilities are not covered.
3. 20 C.F.R. Parts 1 and 30, effective February 24, 2003 states that this new final rule will apply to all claims filed on or after this date, and all claims that are pending on February 24, 2003.
4. You have established that you are the eligible surviving beneficiary of the employee pursuant to 42 U.S.C. §7384s.
5. Other lung conditions and renal disease are not covered conditions under § 7384l(15) of the EEOICPA.
6. You not entitled to compensation pursuant to 42 U.S.C. § 7384l of the Energy Employees Occupational Illness Compensation Program Act.
Denver, CO
Janet R. Kapsin
Hearing Representative
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EEOICPA Fin. Dec. No. 55006-2005 (Dep’t of Labor, December 7, 2004)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq.(EEOICPA or the Act). For the reasons set forth below, your claim is accepted in part and deferred in part.
STATEMENT OF THE CASE
On March 3, 2004, you filed a Form EE-1, Claim for Benefits under Part B of the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for lung cancer. On the Form EE-3, Employment History, you stated you were employed at the K-25 gaseous diffusion plant (GDP) in Oak Ridge, Tennessee, for the period of February 24, 1992 to present. The Department of Energy verified this employment as February 24, 1992 and continuing. Although you did not claim that condition, the district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD). On November 3, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for chronic beryllium disease. The district office’s recommended decision also concluded that you are entitled to medical benefits effective March 3, 2004 for chronic beryllium disease. The district office deferred a recommendation on the claimed lung cancer, pending dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH). On November 12, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.
I have reviewed the medical evidence and find that it is sufficient to establish that you have chronic beryllium disease. According to the Act, the term “established chronic beryllium disease” means chronic beryllium disease as 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
(ii) 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. 42 U.S.C. § 7384l(13).
A pathology report dated October 1, 2001, reporting results of a lung biopsy performed on September 28, 2001, revealed focal non-caseating granuloma. Three beryllium lymphocyte proliferation tests (LPT) from mid-2004 were interpreted as being normal. However, Dr. Charles Bruton opined on August 10, 2004 that, even though your LPTs were normal, your open lung biopsy with noncaseating granulomas was consistent with chronic beryllium disease. Based on the post-1993 criteria, the medical evidence supports a finding of chronic beryllium disease.[1]
FINDINGS OF FACT
1. You filed a Form EE-1, Claim for Benefits under Part B of the EEOICPA, on March 3, 2004.
2. The medical evidence is sufficient to establish that you have chronic beryllium disease pursuant to Part B of the Act. 42 U.S.C. § 7384l(13).
3. You were employed at the K-25 GDP for the period of February 24, 1992 and continuing. Beryllium was present at this facility during the time you were employed. Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in Part B of the Act. 42 U.S.C. § 7384l(7).
4. The Jacksonville district office issued the recommended decision on November 3, 2004.
5. On November 12, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.
CONCLUSIONS OF LAW
I find that you are a covered beryllium employee, as that term is defined in Part B of the Act; and that your chronic beryllium disease is a covered condition under Part B of the Act and implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207.
I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective March 3, 2004, for chronic beryllium disease, pursuant to Part B of the Act. 42 U.S.C. §§ 7384s(a), 7384t.
Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
[1] Federal (EEOICPA) Procedure Manual, Chapter 2-700.4b(2) (September 2004) states that in claims that contain a normal or borderline LPT and the lung tissue biopsy confirms the presence of granulomas consistent with CBD, the CE may accept the claim for CBD if the treating physician provides a detailed narrative report detailing the history of the claimant’s LPT results and steroid use.
Page 104
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.
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 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
EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim is approved for impairment benefits in the amount of $195,000.00 based on lung cancer under Part E of EEOICPA, approved for $55,000.00 in wage-loss benefits under Part E, and approved for the consequential illness of coronary artery disease under Part E. You received state workers’ compensation benefits of $126,173.60 for your covered illness of lung cancer, and this will be coordinated with your Part E benefits, leaving your net entitlement to compensation under Part E as $123,826.40.
STATEMENT OF THE CASE
On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA and identified lung cancer as the illness that allegedly resulted from your employment at a Department of Energy (DOE) facility. On February 20, 2004, the FAB issued a final decision concluding that you were entitled to lump-sum monetary and medical benefits for your lung cancer under Part B of EEOICPA. Based on that conclusion, you were awarded $150,000.00 and medical benefits for your lung cancer under Part B. On August 9, 2006, the FAB issued a final decision that also awarded you medical benefits under Part E of EEOICPA for your lung cancer.
On January 8, 2007, the district office received your request for impairment and wage-loss benefits under Part E based on your lung cancer. You elected to have a physician selected by the Department of Labor perform the impairment rating. You also you stated that you first experienced wage-loss beginning in 1997, when you were “officially medically retired from work at Westinghouse Savannah River Plant” and that this wage-loss has continued since then.
The DOE confirmed your employment at the Savannah River Site (SRS) in Aiken, South Carolina from April 23, 1984 to November 1, 1997. You worked for E.I. DuPont and Westinghouse, two DOE contractors, during your employment at the SRS. The medical evidence includes a January 3, 1995 pathology report, signed by Dr. Sharon Daspit, which confirms a diagnosis of squamous cell carcinoma of the left lung. On April 25, 2007, the district office also received your request that your coronary artery disease be accepted as a consequential illness of your lung cancer, as it is related to your radiation treatment for your lung cancer.
To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by your covered illnesses and the extent of the impairment attributable to your covered illnesses), the district office referred your file material to a District Medical Consultant (DMC).
On April 18, 2007, the DMC reviewed the medical evidence of record and determined that pursuant to Table 8-2 of the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, your covered illness of lung cancer resulted in a Class 4 respiratory disorder that translated to a 73% whole person impairment. The DMC also determined that pursuant to Table 3.6a of the Guides, your coronary artery disease resulted in an 18% whole person impairment. Using the combined values chart contained in the Guides, the DMC concluded that you had a 78% whole person impairment due to your covered illnesses of lung cancer and coronary artery disease. The DMC explicitly stated that your cardiac condition is “due to the radiation of the lung cancer, and such is a known complication of chest radiation.”
You submitted your Social Security Administration earnings statement, which shows that you last had recorded wages in 1997. An April 8, 1997 letter from Dr. James R. Mobley states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.
You submitted a copy of your “Compromise Settlement Agreement and Petition for Approval” confirming that you received a settlement of your state workers’ compensation claim totaling $126,713.60 for your lung cancer.
On June 8, 2007, the Jacksonville district office issued a recommended decision finding that your coronary artery disease was a consequential illness related to your lung cancer treatment, that your accepted illnesses of lung cancer and coronary artery disease resulted in a 78% whole body impairment, that you were entitled to $195,000.00 in impairment benefits, and calculating your wage- loss benefits as $55,000, which was capped when the total amount of Part E monetary benefits reached $250,000.00. From this combined maximum amount of $250,000.00, the district office subtracted your $126,173.60 in state workers’ compensation benefits and recommended that you be awarded a net payment of $123,826.40 in monetary benefits under Part E of EEOICPA.
In its recommended decision, the district office stated that you had no earnings reported to Social Security for the years 1998 through 2006; however, it stated that since total Part E compensation was statutorily capped at $250,000.00 and it was recommending that you receive $195,000.00 in impairment benefits, your wage-loss benefits were only calculated for the years 1998 through 2001 (you are entitled to $15,000 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001). This totals $55,000.00 in wage-loss benefits.
On June 15, 2007, the FAB received your waiver of your right to object to the findings of fact and conclusions of law contained in the recommended decision.
On July 13, 2007, the FAB remanded your claim, and stated that the recommended decision did not take into account the full amount of wage-loss benefits to which you are entitled. The FAB stated that, “It is true that total compensation, excluding medical benefits, under Part E may not exceed $250,000; however, it is the final number after coordination of state workers’ compensation benefits that cannot exceed $250,000, not the benefit amount before state workers’ compensation benefits are subtracted.”
On November 21, 2007, the Director of DEEOIC issued a Director’s Order vacating the July 13, 2007 remand order issued by the FAB. The Director’s Order stated that the only way to interpret the regulations at 20 C.F.R. § 30.626(a), which state “the OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness,” is to stop calculating the benefits an employee is entitled to under Part E at $250,000.00, and then coordinate the state workers’ compensation benefits.
Following an independent review of the evidence of record, the undersigned hereby makes the following:
FINDINGS OF FACT
1.On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA. You identified lung cancer as the illness you alleged resulted from your employment at a DOE facility.
2.On February 20, 2004, the FAB issued a final decision determining that you were entitled to lump-sum and medical benefits for your lung cancer under Part B, and awarding you $150,000.00 and medical benefits for your lung cancer under Part B.
3.On August 9, 2006, the FAB issued a final decision awarding you medical benefits under Part E of EEOICPA for your covered illness of lung cancer.
4.Your coronary artery disease is a consequential illness of your lung cancer.
5.On April 18, 2007, the DMC reviewed the medical evidence of record and determined that your covered illness of lung cancer and covered consequential illness of coronary artery disease resulted in a 78% whole person impairment.
6.You last had recorded wages in 1997. Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.
7.You were born on October 5, 1942 and turned 55 years old in 1997. Your normal Social Security retirement age is 65 years.
8.You received $126,173.60 in state workers’ compensation benefits for your lung cancer, based on exposure to ionizing radiation.
Based on these facts, the undersigned hereby makes the following:
CONCLUSIONS OF LAW
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). You have waived your right to file objections to the findings of fact and conclusions of law issued in the May 9, 2007 recommended decision.
Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered illness.” See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a). This “minimum impairment rating” shall be determined in accordance with the Fifth Edition of the Guides. See 42 U.S.C. § 7385s-2(b). The statute provides that for each percentage point of the “minimum impairment rating” that is a result of a “covered illness,” the “covered DOE contractor employee” shall receive $2,500.00. See 42 U.S.C. § 7385s-2(a)
(1). The evidence of record indicates that you are a covered DOE contractor employee with a covered illness of lung cancer and a covered consequential illness of coronary artery disease. You have a “minimum impairment rating” of 78% of your whole body as a result of your covered illnesses of lung cancer and coronary artery disease, based on the Guides. You are therefore entitled to $195,000.00 in impairment benefits (78 x $2,500 = $195,000.00) under Part E of EEOICPA.
In order to be entitled to wage-loss benefits under Part E, you must submit factual evidence of your wage-loss and medical evidence that is of sufficient probative value to establish that the period of wage-loss at issue is causally related to your covered illness. See Federal (EEOICPA) Procedure Manual, Chapter E-800.6b (September 2005). You were born on October 5, 1942 and turned 55 years old in 1997. Your normal Social Security retirement age is 65 years. You last had recorded wages in 1997 and have not had any wages since then. Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.
This is sufficient to show that you had wage-loss related to your covered illnesses of lung cancer and coronary artery disease beginning in 1998.
Accordingly, your claim for wage-loss benefits under Part E of EEOICPA is accepted in the amount of $55,000.00. You are entitled to $15,000.00 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001. This totals $55,000.00 in wage-loss benefits, which together with your $195,000.00 in impairment benefits, totals the statutory maximum of $250,000.00. Therefore, your wage-loss eligibility ends there.
All benefits payable under Part E of EEOICPA must be coordinated with the amount of any state workers’ compensation benefits that were paid to the claimant for the same covered illness or illnesses. See 42 U.S.C. § 7385s-11. Based on the evidence in the file, this results in a reduction of the maximum amount payable to you in impairment and wage-loss benefits, $250,000.00, by $126,173.60, resulting in a net entitlement of $123,826.40.
Therefore, your claim for the consequential illness of coronary artery disease is accepted under Part E. Your claim for impairment and wage-loss benefits under Part E for your lung cancer and coronary artery disease is also accepted, and you are awarded a net amount of $123,826.40.
Washington, DC
Carrie A. Rhoads
Hearing Representative
Final Adjudication Branch
Page 112
EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).
On December 12, 2001, the Seattle District Office issued a recommended decision concluding that the deceased covered employee was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA, and that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA as his survivor. On December 17, 2001, the Final Adjudication Branch received written notification from you waiving any and all objections to the recommended decision.
The undersigned has reviewed the evidence of record and the recommended decision issued by the Seattle district office on December 12, 2001, and finds that:
In a report dated August 20, 1996, Dr. John Mues diagnosed the deceased covered employee with mixed squamous/adenocarcinoma of the lung. The report states the diagnosis was based on the results of a thoracoscopy and nodule removal. Lung cancer is a specified disease as that term is defined in § 7384l(17)(A) of the EEOICPA and 20 CFR § 30.5(dd)(2) of the EEOICPA regulations.
You stated in the employment history that the deceased covered employee worked for S.S. Mullins on Amchitka Island, Alaska from April 21, 1967 to June 17, 1969. Nancy Shaw, General Counsel for the Teamsters Local 959 confirmed the employment by affidavit dated November 1, 2001. The affidavit is acceptable evidence in accordance with § 30.111 (c) of the EEOICPA regulations.
Jeffrey L. Kotch[1], a certified health physicist, has advised it is his professional opinion that radioactivity from the Long Shot underground nuclear test was released to the atmosphere a month after the detonation on October 29, 1965. He further states that as a result of those airborne radioactive releases, SEC members who worked on Amchitka Island, as defined in EEOICPA § 7384l(14)(B), could have been exposed to ionizing radiation from the Long Shot underground nuclear test beginning a month after the detonation, i.e., the exposure period could be from approximately December 1, 1965 through January 1, 1974 (the end date specified in EEOICPA, § 7384l(14)(B)). He supports his opinion with the Department of Energy study, Linking Legacies, DOE/EM-0319, dated January 1997, which reported that radioactive contamination on Amchitka Island occurred as a result of activities related to the preparation for underground nuclear tests and releases from Long Shot and Cannikin.
Tables 4-4 and C-1, on pages 79 and 207, respectively, list Amchitka Island as a DOE Environmental Management site with thousands of cubic meters of contaminated soil resulting from nuclear testing.
The covered employee was a member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA and §§ 30.210(a)(2) and 30.213(a)(2) of the EEOICPA regulations. This is supported by evidence that shows he was working on Amchitka Island for S.S. Mullins during the potential exposure period, December 1, 1965 to January 1, 1974.
The covered employee died February 17, 1999. Metastatic lung cancer was included as a immediate cause of death on the death certificate.
You were married to the covered employee August 18, 1961 and were his wife at the time of his death.
You are the eligible surviving spouse of the covered employee as defined in § 7384s of the EEOICPA, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012, 1371, December 28, 2001.[2]
The undersigned hereby affirms the award of $150,000.00 to you as recommended by the Seattle District Office.
Washington, DC
Thomasyne L. Hill
Hearing Representative
[1] Jeffrey L. Kotch is a certified health physicist employed with the Department of Labor, EEOICP, Branch of Policies, Regulations and Procedures. He provided his professional opinion in a December 6, 2001 memorandum to Peter Turcic, Director of EEOICP.
[2] Title XXXI of the National Defense Authorization Act for Fiscal Year 2002 amended the Energy Employees Occupational Illness Compensation Program Act.
Page 119
EEOICPA Fin. Dec. No. 17556-2003 (Dep’t of Labor, September 27, 2004)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch accepts your claim for the condition of lung cancer under the EEOICPA.
STATEMENT OF THE CASE
On December 13, 2001, you filed a claim, Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employment of your late husband, [Employee] (the employee). You identified an unspecified cancer as the condition being claimed.
Medical evidence submitted with the claim included a December 19, 1989 medical report from St. Mary’s Hospital, showing a diagnosis of poorly differentiated large cell carcinoma of the upper lobe of the right lung. You also submitted a copy of a pathology report which diagnosed lung cancer on December 15, 1989.
You provided a Form EE-3 (Employment History), indicating that your husband was employed with James Bolt, a subcontractor, while at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio from approximately 1976 to 1985. The Department of Energy (DOE) was unable to verify your husband’s employment. Following appropriate development, on December 11, 2002, the Cleveland district office issued a recommended decision to deny the claim based on the lack of established employment at a facility covered under the Act. On February 20, 2003, the Final Adjudication Branch affirmed the findings of the district office’s recommended decision.
On January 13, 2004, you requested that your case be reopened. Along with your request, you submitted additional employment evidence. On April 23, 2004, as a result of the additional employment evidence you submitted, a Director’s Order was issued vacating the February 20, 2003 final decision of the Final Adjudication Branch denying your claim for compensation under the EEOICPA. Your case was then returned to the Cleveland district office for consideration of the new evidence and issuance of a new recommended decision.
The Cleveland district office was able to verify that your husband was employed by James Bolt from about 1978 to 1985 based on an itemized statement of earnings provided by the Social Security Administration (SSA). You also provided several letters and Forms EE-4 (Employment History Affidavit) from Pat Spriggs (your husband’s co-worker), Cassandra Bolt-Meredith (the wife of James Bolt, your husband’s employer), and [Name of Employee’s son-in-law] (your husband’s son-in-law) placing your husband on site at the Portsmouth GDP as a part-time subcontractor employee from 1978 to 1985. In addition, a letter from Bruce E. Peterson, General Manager of Ledoux & Company stating that “Mr. James Bolt was an independent subcontractor for Ledoux & Company performing witnessing services for various clients at the Portsmouth Gaseous Diffusion Nuclear Facility in Portsmouth, Ohio” supports that a contract existed between James Bolt, Ledoux & Company, and the Portsmouth GDP during the 1970’s and 1980’s.
You provided a copy of your marriage certificate, showing you and your husband were married on October 7, 1947. You provided a copy of your husband’s death certificate showing he was married to you at his time of death on February 14, 1990.
On August 23, 2004, the Cleveland district office issued a recommended decision that concluded your husband is a member of the Special Exposure Cohort, as defined by § 7384l(14)(A). The district office further concluded that your husband was diagnosed with lung cancer, which is a specified cancer as defined by § 7384l(17)(A). In addition, the district office concluded that you are the surviving spouse of the employee, as defined by § 7384s, and, as such, you are entitled to compensation in the amount of $150,000.00 pursuant to § 7384s.
On August 30, 2004, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.
FINDINGS OF FACT
1.You filed a claim and presented medical evidence on December 13, 2001, based on your husband’s lung cancer.
2.For the purposes of SEC membership, your husband was employed with James Bolt, a DOE subcontractor, at the Portsmouth GDP in Piketon, Ohio, from at least 1978 to 1985
3.Your husband was employed for a number of work days aggregating at least 250 work days from September 1, 1954, to February 1, 1992, and during such employment worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.
4.On December 15, 1989, your husband was diagnosed with lung cancer.
5.You are the surviving spouse of the employee and were married to him at least one year prior to his death.
CONCLUSIONS OF LAW
In order to be considered a “member of the Special Exposure Cohort,” your husband must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee’s body; or had exposures comparable to a job that is, or, was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).
The evidence of record establishes that your husband worked in covered employment at the Portsmouth GDP from at least 1978 to 1985. Consequently, he met the requirement of working more than an aggregate 250 days at a covered facility. Also, the statute requires proof that the covered employee was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body. You indicated that you were not sure whether your husband wore a dosimetry badge. Under provisions of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), employees who worked at the Portsmouth GDP between September 1, 1954 and February 1, 1992 performed work that was comparable to a job that was monitored through the use of dosimetry badges. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3 (June 2002). Thus, your husband met the dosimetry requirements of the Act.
The EEOICPA provides coverage for a specified cancer as defined in § 4(b)(2) of the Radiation Exposure Compensation Act (RECA) including cancer of the lung. The medical evidence of record indicates that your husband was diagnosed with lung cancer. Therefore, he is a member of the Special Exposure Cohort, who was diagnosed with a specified cancer under the Act. See 42 U.S.C. § 7384l(17)(A).
The employee is deceased and you have provided documentation that you are the surviving spouse of the employee, who was married to the employee at least one year immediately before his death. See 42 U.S.C. § 7384s(e)(3)(A).
For the foregoing reasons, the undersigned hereby accepts and approves your claim based on cancer of the lung. You are entitled to compensation in the amount of $150,000, pursuant to § 7384s of the EEOICPA. See 42 U.S.C. § 7384s(a)(1) and (e)(1)(A).
Cleveland, Ohio
Debra A. Benedict
Acting District Manager
Final Adjudication Branch
Page 123
EEOICPA Fin. Dec. No. 19750-2004 (Dep’t of Labor, November 12, 2004)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This decision of the Final Adjudication Branch (FAB) concerns your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. §7384 et seq. (EEOICPA). For the reasons stated below, your claims for benefits are denied.
STATEMENT OF THE CASE
On January 22, 2002, [Claimant 1] filed a claim (Form EE-2) for survivor benefits under the EEOICPA and identified carcinomatosis and bronchogenic carcinoma as the diagnosed conditions on which his claim was based. On May 20, 2002, [Claimant 2] and [Claimant 3] filed claims for survivor benefits under the EEOICPA and identified carcinomatosis and bronchogenic carcinoma as the diagnosed conditions on which their claims were based. [Claimant 1] submitted an employment history form (EE-3) on which he stated that [Employee] was employed at the International Nickel Company (INCO) from 1951 until the early 1960s. He also stated that [Employee] wore a dosimetry badge while employed. As evidence of employment, the claimants submitted the following:
1. Certificate of Membership in the INCO retirement system dated March 1952 acknowledging that [Employee] had been employed for one year.
2. Personnel Dept.-Absentee Record which shows [Employee] was employed by INCO from May 1953 to January 1967 in the refinery department.
3. Daily Treatment Cards which show [Employee] was hired On March 6, 1952.
4. INCO personnel interoffice memo which states [Employee] last worked on January 7, 1967.
5. INCO Personal Record which shows [Employee] was hired in the refinery department on March 6, 1952, worked in the blacksmith and extrusion departments, and was pensioned effective May 8, 1968.
6. Affidavit from [Co-worker 1] in which he attested that he worked with [Employee] in the refinery and that [Employee] was assigned to pick up contaminated material from the pilot plant, and melt it in the furnace. [Co-worker 1] also attested that [Employee] volunteered to work in the pilot plant during shut downs sweeping and cleaning.
7. Affidavit from [Co-worker 2] in which he attested that he worked with [Employee] in the 1960s. [Co-worker 2] also attested that he and [Employee] went to the pilot plant to load contaminated material and transport it back to the refinery department for melt down.
On March 11, 2002, Department of Energy representative Roger M. Anders advised the district office, via Form EE-5, that the employment history provided contained information that was not accurate. In an attachment, Mr. Anders advised that [Employee] was not employed in the covered portion of the plant. On April 15, 2002, a representative of the Huntington Pilot Plant advised the district office, by telephone, that a refinery employee worked ½ mile from the reduction plant (old plant) which is the covered part of the plant. On August 6, 2002, an INCO representative wrote to the district office and advised that [Employee] did not work in the Reduction Pilot Plant. The district office determined that the preponderance of evidence establishes the employee was employed at the Huntington Pilot Plant for various periods from March 6, 1952 to May 10, 1971.
As medical evidence, the claimants submitted Dr. Donald P. Stacks April 22, 1971 medical report in which he states [Employee] was diagnosed with “bronchogenic carcinoma of the left with mediastinal metastases.” The claimant submitted correspondence from the Cabell Wayne County Medical Examiner in which he states he had received a request for toxicology, pathology or autopsy reports but he could locate no records concerning [Employee]. The claimants also submitted a letter from St. Mary’s Medical Center which states, “No path report found for 1971.”
The claimants submitted a copy of the employee’s marriage certificate which shows he was married to [Spouse’s Maiden Name] on October 8, 1937. The claimants submitted copies of their birth certificates which show their parents as [Employee] and [Spouse]. The claimants submitted a copy of the employee’s death certificate which shows he died on May 10, 1971 due to carcinomatosis and bronchogenic carcinoma and a copy of [Spouse]‘s death certificate which shows she died on October 5, 1995.
On February 12, 2003, the Cleveland district office referred the evidence of record to the National Institute for Occupational Safety and Health (NIOSH) to assist in determining if the employee’s lung cancer was at least as likely as not related to his employment at the Huntington Pilot Plant. On November 29, 2003, December 2, 2003 and December 3, 2003, [Claimant 2], [Claimant 3] and [Claimant 1], respectively, signed a Form OCAS-1 indicating they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they provided to NIOSH. On January 15, 2004, the district office received the Final Report of Dose Reconstruction from NIOSH. The district office used the information provided in that report to determine that there was a 13.85% probability that the employee’s lung cancer was caused by radiation exposures at the Huntington Pilot Plant.
Based upon the evidence of record, the Cleveland district office issued a recommended decision on January 26, 2004, in which it concluded that [Employee] did not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) because he did not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10; and that the Department of Labor (DOL) completed the probability of causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. part 81. The district office recommended denial of the claims based on its conclusions.
On March 16, 2004, [Claimant 3] wrote to the FAB and objected to the recommended decision. [Claimant 3] stated that she did not believe any computer program could measure the amount of radiation to which her father was exposed. [Claimant 3] also stated that the recommended decision indicated her father’s degree of contamination was evaluated on the premise that he only worked at the RPP (Reduction Pilot Plant) at shut down, which was not the case as he also worked at various times during the regular work year as well as during shut down. [Claimant 3] requested a hearing and such was held before the undersigned on June 30, 2004 in Charleston, WV. [Claimant 3]‘s representative, [Claimant 2] and [Claimant 3] provided testimony at the hearing as to where the employee was employed while at the Huntington Pilot Plant. They explained the period the employee worked during the shut down, how the employee was directly assigned to the Pilot Plant and the other type of employment assignments the employee was given. [Claimant 2] testified that he felt the “13% damage” determined by NIOSH was “way out of hand” and that his father’s death was caused by his employment at the plant. [Claimant 2] also testified that it was his position that his father’s early death at age 51 was due to his employment. [Claimant 3’s Representative] also raised an issue that it was the claimants’ belief that the dose reconstruction was based on the fact that the employee only worked at the Pilot Plant intermittently during shutdown. He wanted to clarify that the term shut down meant the period of years the employee was working in and out of the Pilot Plant. The claimants also objected to the fact that the employee’s work at the refinery was not considered as covered employment. The claimants submitted audio taped affidavits from [Co-worker 1] and [Co-worker 2] as evidence. Subsequent to the hearing, the undersigned advised the claimants that in order to accept the testimony contained in the taped affidavits, the tapes would have to be transcribed and signed by the persons providing the testimony. On August 9, 2004, [Claimant 3] wrote to the FAB and advised of several errors in the transcript. She also stated that the claimants objected to the use of the term “causally related to his employment” on page 6, paragraph 6 of the transcript because the employee worked directly in the Pilot Plant throughout his career with INCO. [Claimant 3] reiterated the claimant’s objection that work in the refinery was not included as covered employment and their concern that the term “shut down” was not being applied properly in considering the merits of the claim. On September 28, 2004, [Claimant 3] submitted a signed affidavit from [Co-worker 2]. In his affidavit, [Co-worker 2] attested that the employee volunteered to work shut down (one month in each year when the plant would shut down) at the Pilot Plant but also worked there various other times during the year. [Claimant 3] also submitted a statement from [Claimant 1] in which he advised that [Co-worker 1] died on January 26, 2004, but [Co-worker 1’s Spouse] had advised him verbally that [Co-worker 1] would have signed the affidavit. [Co-worker 1]‘s affidavit reiterates the information he previously provided by affidavit prior to his death.
After considering the written record of the claim, the claimants’ objections and testimony presented at the hearing, the FAB hereby makes the following:
FINDINGS OF FACT
1. [Claimant 1] filed a claim for survivor benefits under the EEOICPA on January 22, 2002.
2. [Claimant 2] and [Claimant 3] filed claims for survivor benefits under the EEOICPA on May 20, 2002.
3. The employee was diagnosed with bronchogenic cancer on April 22, 1971.
4. The employee was employed at the Huntington Pilot Plant, a Department of Energy facility,[1] for various periods between March 6, 1952 and 1967.
5. The employee died on May 10, 1971.
6. The employee’s [Spouse] died on October 5, 1995.
7. [Claimant 1], [Claimant 2] and [Claimant 3] are the surviving children of the employee.
8. On January 14, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record. On January 29, 2004, the Final Adjudication Branch independently analyzed the information in that report and confirmed the 13.85% probability determined by NIOSH.
Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:
CONCLUSIONS OF LAW
To establish eligibility for compensation as a result of cancer, it must first be established that the employee was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by the Department of Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment. 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. The DOE advised that [Employee] was not employed at the covered site at the Huntington Pilot Plant, however, two of [Employee]‘s co-workers submitted affidavits stating that he volunteered to work at the pilot plant each year during “shut down” and was assigned to work at the pilot plant at various other times during his employment. [Claimant 3] advised in a letter, dated March 16, 2004, that the reason the employment records did not show the employee’s assignments to the pilot plant was because of a Union agreement which allowed employees to be detailed or loaned to different departments as long as the employee’s pay and job status remained the same. [Claimant 3] did not submit a copy of the Union agreement with her letter. The EEOICPA regulations, at § 30.111, provide for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility. The sworn statements from the employee’s coworkers attesting that he worked at the Pilot Plant during annual shut downs and various periods between 1952 and 1967 are used to establish his employment at the Pilot Plant. On January 29, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for the employee’s cancer with the software program known as NIOSH-IREP. These calculations showed that there was a 13.85% probability that the employee’s bronchial cancer was caused by his exposure to radiation during the period of his covered employment at the Huntington Pilot Plant.
The claimants’ objections have been reviewed. In regards to the claimants’ objection concerning the exposure received by the employee at the pilot plant, because no radiation monitoring records were found, the employee was assigned the highest reasonably possible radiation dose using worst-case assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data. The dose reconstruction evaluated the employee’s radiation exposure to the bronchi from the potential exposure starting in 1952 until he was diagnosed with cancer in 1971. The primary data source utilized for the dose reconstruction was the document, “Basis for Development of an Exposure Matrix for Huntington Pilot Plant” which presents the evaluation of information regarding the nickel scrap reprocessing work performed by the Huntington Pilot Plant for the Atomic Energy Commission. It was assumed that the employee was exposed chronically to the source, the contaminated nickel during nickel scrap reprocessing. This assumption overestimated the employee’s dose. Even under these assumptions, NIOSH has determined that further research and analysis will not produce a level of radiation dose resulting in a probability of causation of 50% or greater.[2] This approach is based on worst-case assumptions, which is a methodology used by NIOSH per the provisions of 42 C.F.R. § 82.10(k)(2). This is a challenge of the dose reconstruction methodology.
In regards to the claimants’ objection regarding the use of computers to determine the amount of radiation and the percentage of probability determined, scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.
Simply explained, if research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation. The computer program for calculating probability of causation, named the Interactive RadioEpidemiological Program (IREP), allows the Department of Labor (DOL) to apply the National Cancer Institute’s risk models directly to data about exposure for an individual employee. IREP estimates the probability that an employee’s cancer was caused by his individual radiation dose. The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X- rays, alpha radiation, beta radiation, and neutrons during each year. None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens. In particular, IREP allows the user to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the probability of causation (PoC). Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual. As required by EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses. This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.[3] This is a challenge of the probability of causation methodology, which was developed by NIOSH.
Objections challenging the dose reconstruction methodology cannot be addressed by the FAB pursuant to § 30.318(b) of the EEOICPA regulations. 20 C.F.R. § 30.318(b). Pursuant to that section, the methodology used by Health and Human Services (HHS) in arriving at reasonable estimates of the radiation doses received by an employee, established by regulations issued by HHS at 42 C.F.R. part 82, is binding on the FAB.
In regards to the claimants’ objection regarding the exclusion of the refinery as a covered work site, the DOE has advised that the refinery was not a covered portion of the Huntington Pilot Plant; therefore employment at that site is not considered.
allows the user to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the probability of causation (PoC). Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual. As required by EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses. This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.[3] This is a challenge of the probability of causation methodology, which was developed by NIOSH.
Objections challenging the dose reconstruction methodology cannot be addressed by the FAB pursuant to § 30.318(b) of the EEOICPA regulations. 20 C.F.R. § 30.318(b). Pursuant to that section, the methodology used by Health and Human Services (HHS) in arriving at reasonable estimates of the radiation doses received by an employee, established by regulations issued by HHS at 42 C.F.R. part 82, is binding on the FAB.
In regards to the claimants’ objection regarding the exclusion of the refinery as a covered work site, the DOE has advised that the refinery was not a covered portion of the Huntington Pilot Plant; therefore employment at that site is not considered.
The evidence of record does not establish that the employee’s bronchial cancer was “at least as likely as not” (50% or greater) caused by his employment at the Huntington Pilot Plant, within the meaning of § 7384n of the Act. 42 U.S.C. § 7384n. The evidence of record is not sufficient to establish that the employee was a covered cancer employee as defined by § 7384l(9) of the EEOICPA; therefore the claims for benefits under the EEOICPA are denied. 42 U.S.C. § 7384l(9).
Washington, DC
Thomasyne L. Hill
Hearing Representative
Final Adjudication Branch
[1] U.S. Department of Energy. HuntingtonPilot Plant. Time Period: 1951-1963; 1978-1979. Worker Advocacy Facility List. Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved June 28, 2004].
[2] NIOSH report of Dose Reconstruction under the EEOICPA (November 24, 2003).
[3] EEOICP Decision 43095-2004–2004-05-19.
Page155
EEOICPA Fin. Dec. No. 20858-2006 (Dep’t of Labor, June 30, 2006)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claims are accepted in part and denied in part.
STATEMENT OF THE CASE
You each filed a Form EE-2, Claim for Survivor Benefits. A claim was also filed by [Claimant #8], but he died on April 21, 2005 before adjudication was complete. You stated on the Forms EE-2 that you were filing for the lung and throat cancer of your late father, [Employee], hereinafter referred to as “the employee.” The death certificate and affidavits establish that the employee was diagnosed with lung cancer in approximately June 1959. The employee’s death certificate shows lung cancer as the cause of death on June 13, 1961. There is no medical evidence supporting a diagnosis of throat cancer.
On the Form EE-3, Employment History, you stated the employee was employed sometime in the 1940s as a machinist with the Manhattan Project in Oak Ridge, Tennessee. The district office verified that the employee worked for Tennessee Eastman Corporation (TEC) at the Y-12 plant[1] for the period of December 27, 1943 to August 29, 1946.
On July 16, 2002, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. On September 26, 2005, NIOSH returned your case to the district office. Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.
In support of your claims for survivorship, you submitted the death certificate of the employee, and a copy of the death certificate of the employee’s spouse. In addition, you submitted evidence that you are the children of the employee, along with documentation of legal name changes.
On March 20, 2006, the Seattle district office issued a recommended decision, concluding that you are entitled to lump-sum compensation as eligible survivors under Part B of the Act, that [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are eligible survivors under Part E, and [Claimant #2], [Claimant #3], and [Claimant #7] are not eligible survivors under Part E of the Act. The district office also recommended that the claim for throat cancer be denied. On May 27, 2006, the Final Adjudication Branch issued a final decision, denying compensation to [Claimant #2], [Claimant #3], and [Claimant #7] under Part E of the Act.
You each verified that neither you nor the employee filed a lawsuit or a state workers’ compensation claim or received a settlement, award, or benefit for the claimed condition.
The Final Adjudication Branch received written notification that you each waived any and all objections to the recommended decision.
FINDINGS OF FACT
1.You each filed a Form EE-2, Claim for Survivor Benefits.
2.The employee was diagnosed with lung cancer in approximately June 1959.
3.The employee was employed at the Y-12 plant in Oak Ridge, Tennessee, from December 27, 1943 to Au gust 29, 1946.
4.You are each the employee’s child. [Claimant #1]‘s birth date is [Date of Birth]; [Claimant #4]‘s birth date is [Date of Birth]; [Claimant #5]‘s birth date is [Date of Birth]; and [Claimant #6]‘s birth date is [Date of Birth]. The employee’s spouse is no longer living. [Claimant #4] and [Claimant #6] were enrolled in college full-time and continuously from the age of 18 through the date of the employee’s death on June 13, 1961.
5.The employee’s lung cancer caused his death.
6.The employee was 50 years old at the time of his death and died 15 years before his normal retirement age of 65 years.
CONCLUSIONS OF LAW
I have reviewed of the evidence of record and the recommended decision.
On June 5, 2006, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a bulletin establishing supplemental guidance for processing claims for the SEC class at the Y-12 Plant from March 1943 to December 1947.[2] This directive supplements the guidance provided for making a determination that the employee performed work in uranium enrichment operations or other radiological activities for more than 250 days at the Y-12 plant.[3] Attachment 1 of the bulletin lists occupational titles for Y-12 employees involved in Uranium Enrichment Processes.
The employment evidence of record, specifically the report from the Oak Ridge Institute for Science and Education (ORISE) database and Department of Energy (DOE) records, indicates that the employee was classified as a “maintenance mechanic” from December 27, 1943 to April 1, 1944; as a “millwright” from April 2, 1944 to December 8, 1945; as a “vacuum service mechanic” from December 9, 1945 to January 12, 1946; and as a “millwright” from January 13, 1946 to August 29, 1946. However, the employee’s job titles are not on the list.[4]
The DEEOIC notes that the Y-12 facility had building locations where uranium enrichment operations or other processes relating to radiological material were conducted. Employees performing non- uranium enrichment duties that were routinely present within the buildings or areas where uranium enrichment operations occurred are also considered part of the SEC class. Department of Energy (DOE) records include a clinical record for the employee listing each time he went to the employee health unit for treatment while employed by the Tennessee Eastman Corporation. Several treatments list a building number (9204-4). Building 9204-4 is acknowledged to be a Beta building where the calutron was located and uranium enrichment occurred. The Final Adjudication Branch 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 “millwright” at Y-12 could potentially be exposed to the toxic substance of uranium tetrafluoride. The SEM contains a list of processes performed by this labor category, which includes uranium recovery, purification, and recycle operations.
The evidence shows that the employee worked at the Y-12 plant in Oak Ridge, Tennessee from December 27, 1943 to August 29, 1946, and as a millwright from April 2, 1944 to December 8, 1945 and from January 13, 1946 to August 29, 1946, which equals more than 250 days during the SEC class period, and that he was involved in uranium enrichment operations and other radiological activities. Therefore, the employee qualifies as a member of the SEC.
The employee was diagnosed with lung cancer which is a “specified cancer” pursuant to 42 U.S.C. § 7384l(17)(A) and 20 C.F.R. § 30.5(ff)(2). You meet the definition of survivors under Part B of the Act. 42 U.S.C. § 7384s(e)(B). Therefore, you are entitled to compensation of $150,000 for the employee’s lung cancer, to be divided equally. 42 U.S.C. § 7384s(a). The exact payment amounts may vary by one penny, as the total compensation may not exceed $150,000.
The employee was an employee of a DOE contractor at a DOE facility. 42 U.S.C. §§ 7384l(11), 7384l(12). A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2).
[Claimant #1] was 14 at the time of the employee’s death. [Claimant #4] was 19 at the time of the employee’s death and enrolled full-time in school. [Claimant #5] was 11 at the time of the employee’s death. [Claimant #6] was 21 at the time of the employee’s death and enrolled full-time in school.
Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] each meet the definition of a covered child under Part E of the Act. 42 U.S.C. § 7385s-3(d)(2). Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to benefits in the amount of $125,000 for the employee’s death related to lung cancer, to be divided equally. 42 U.S.C. § 7385s- 3(a)(1).
The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of his death through and including the calendar year in which he would have reached normal retirement age. 20 C.F.R. § 30.815 (2005). This equals 14 years of wage-loss. Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to share an additional $25,000 for the employee’s wage-loss, for a total award of $150,000. 42 U.S.C. § 7385s-3(a)(2). I also conclude that there was no medical evidence submitted to establish that the employee was diagnosed with the claimed condition of throat cancer, and the claims for that condition must be denied. 20 C.F.R. §§ 30.211, 30.215.
Jacksonville, Florida
Sidne M. Valdivieso
Hearing Representative
[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at: http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm., the Y-12 plant is a covered DOE facility from 1942 to the present. Tennessee Eastman Corporation (TEC) was a DOE contractor at this facility from 1943 to 1947. (Retrieved June 30, 2006).
[2] EEOICPA Bulletin No. 06-11 (issued June 5, 2006).
[3] EEOICPA Bulletin No. 06-04 (issued November 21, 2005).
[4] EEOICPA Bulletin No. 06-11 (issued June 5, 2006).