Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Medical Benefits.  We hope these decisions are helpful.  Please add your experiences in the comments section.

Medical Benefits

Date of commencement

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

FINDINGS OF FACT

1.      You filed a claim for employee benefits on September 24, 2001.

2.      You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

3.      You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B)

4.      You were diagnosed with multiple skin cancers.

5.      Your cancer diagnoses were made after you began employment with the Department of Energy.

6.      The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.

7.      The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.

8.      The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81.  The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81.  See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E. 

9.      After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation.  Additional calculations of probability of causation were not required to be determined.  See 42 C.F.R. § 82.10(k). 

CONCLUSIONS OF LAW

The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. 

The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face).  Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4^th layer shows cancer still present.”).  You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin). 

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

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

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. 

Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site.  See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims involving two or more primary cancers).  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability.  Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

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

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

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

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

Seattle, WA

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle

EEOICPA Fin. Dec. No. 28766-2003 (Dep’t of Labor, June 20, 2003)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On May 6, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), claiming compensation due to prostate cancer.  Medical documentation submitted in support of your claim shows that you were diagnosed as having prostate cancer on November 13, 2000.  You later submitted a pathology report indicating that you were diagnosed as having bladder cancer on May 9, 2003.

You also completed a Form EE-3, Employment History, in which you indicated that you had worked as a helicopter pilot on Amchitka Island for Anchorage Helicopter Service from June 25, 1971 to December 1, 1971, and from May 1974 to June 1974; and, for Evergreen Helicopters from May 13, 1972 to November 17, 1972.  You also submitted a narrative report of your experiences on Amchitka Island; a commendation letter from the resident manager, of Holmes & Narver, Incorporated, dated November 20, 1971, recognizing your work under hazardous conditions on Amchitka Island on November 6, 1971; and, a copy of a letter outlining the start of the operational period for Project Cannikin, which included attachments describing security procedures and issuance of film badges.  The record also includes a completed Form EE-4 from your friend and work associate, Ian Mercier, in which he averred that you had worked as chief helicopter pilot for Anchorage Helicopter Service and Evergreen Helicopters, under contract to Holmes & Narver, prime contractor to the Atomic Energy Commission on Amchitka Island, Alaska, from June 24, 1971 to June 1, 1974.

In correspondence dated May 16, 2002 and August 29, 2002, representatives of the Department of Energy (DOE) indicated that they had no employment information pertaining to you; however, they were able to verify that you had been issued a film badge at the Amchitka Test Site on August 2, September 3, September 30 and October 29, 1971, and attached an employment affidavit from a work associate, Paul J. Mudra, who indicated that you had worked for Anchorage Helicopter Service from June to December 1971 and that he had had direct contact with you during the Cannikin underground testing on Amchitka Island, Alaska, during several months in the fall of 1971.  The Manager’s Completion Report, Amchitka Island, Alaska, Milrow and Cannikin, recognizes Anchorage Helicopter, as a covered subcontractor for a prime Atomic Energy Commission contractor, Holmes & Narver, Incorporated, on Amchitka Island from June to December 1971, for purposes of providing helicopter service.  See Atomic Energy Commission’s Manager’s Completion Report, Amchitka Island, Alaska, Milrow and Cannikin (January 1973). 

On June 16, 2003, the Seattle district office issued a recommended decision that concluded that you were a covered employee as defined in § 7384l(9)(A) of the Act and an eligible member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA, who was diagnosed as having a specified cancer, specifically bladder cancer, as defined in § 7384l(17) of the Act.  See 42 U.S.C. 7384l(9)(A), (14)(B), (17).  The district office further concluded that you were entitled to compensation in the amount of $150,000 pursuant to § 7384s(a)(1) of the EEOICPA.  See 42 U.S.C. § 7384s(a)(1).  The district office’s recommended decision also concluded that, pursuant to § 7384t of the EEOICPA, you were entitled to medical benefits for bladder cancer retroactive to May 6, 2002.  See 42 U.S.C. § 7384t.

On June 18, 2003, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision. 

CONCLUSIONS OF LAW

In order for an employee to be afforded coverage under the “Special Exposure Cohort,” the employee must be a “covered employee,” which is defined in § 7384l(14)(B) of the EEOICPA, in relevant part as follows:

The employee must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed before January 1, 1974, by DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

See 42 U.S.C. § 7384l(14)(B); 20 C.F.R. § 30.214(a)(2).  Further, in order to be entitled to benefits for specified cancer, § 7384l(17) of the EEOICPA indicates that the covered employee must have any of the following:

A.     A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. § 2210 note).

B.     Bone cancer.

C.     Renal cancers.

D.     Leukemia (other than chronic lymphocytic leukemia) if initial occupational exposure occurred before 21 years of age and onset occurred more than two years after initial occupational exposure.

See 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(dd).

The employment evidence of record demonstrates that you were an employee of Anchorage Helicopters, a covered subcontractor for a prime Atomic Energy Commission contractor, Holmes & Narver, Incorporated, located on Amchitka Island, Alaska, from June to December 1971, and that your employment was consistent with the type and kind of work performed by this subcontractor for the Department of Energy (DOE) at this site.  See Atomic Energy Commission’s Manager’s Completion Report, Amchitka Island, Alaska, Milrow and Cannikin (January 1973).  Consequently, this evidence establishes that you were “employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska.”  See 42 U.S.C. § 7384l(14)(B).

The Act requires that the covered employee must show that they were exposed to ionizing radiation in the performance of duty related to the underground tests on Amchitka.  See 42 U.S.C. § 7384l(14)(B).  In a memorandum to the Director, Division of Energy Employees Occupational Illness Compensation Program, a Certified Health Physicist, Branch of Policies, Regulations and Procedures, concluded that, in his professional opinion, radioactivity from the Long Shot nuclear test was released to the atmosphere a month after the detonation on October 29, 1965.  Therefore, as a result of the releases, employees who worked on Amchitka Island were exposed to ionizing radiation from the nuclear tests beginning a month after the detonation.

The record indicates that you were present on Amchitka Island, Alaska, from at least June to December 1971.  The undersigned acknowledges that such evidence shows that you have met the requirement of being exposed to ionizing radiation in the performance of duty, before January 1, 1974.  See 42 U.S.C. § 7384l(14)(B).

You filed a claim based on bladder cancer.  A pathology report from the Northwest Urology Clinic shows that you were diagnosed as having bladder cancer in May 2003.  Consequently, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer under the EEOICPA.  See 42 U.S.C. § 7384l(17)(A); 20 C.F.R.§ 30.5(dd)(5)(iii)(K). 

You are a covered “Special Exposure Cohort” employee which is defined in § 7384l(14)(B) of the EEOICPA.  See 42 U.S.C. § 7384l(14)(B).  Bladder cancer is a “specified cancer” as that term is defined in § 7384l(17) of the Act and § 30.5(dd)(5)(iii)(K) of the EEOICPA regulations.  See 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(dd)(5)(iii)(K). 

For the foregoing reasons, the undersigned hereby accepts your claim for bladder cancer.  You are entitled to compensation in the amount of $150,000, pursuant to § 7384s of the EEOICPA.  See 42 U.S.C. § 7384s.  Further, you are entitled to medical benefits related to bladder cancer, retroactive to May 6, 2002, the date your claim was filed, pursuant to § 7384t of the Act.  See 42 U.S.C. § 7384t; 20 C.F.R. § 30.400(a).

Your claim for prostate cancer is deferred pending further adjudication.

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

FINDINGS OF FACT

1.      You filed a claim for employee benefits on September 24, 2001.

2.      You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

3.      You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B).

4.      You were diagnosed with multiple skin cancers.

5.      Your cancer diagnoses were made after you began employment with the Department of Energy.

6.      The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.

7.      The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.

8.      The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81.  The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81.  See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E. 

9.      After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation.  Additional calculations of probability of causation were not required to be determined.  See 42 C.F.R. § 82.10(k). 

CONCLUSIONS OF LAW

The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. 

The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face).  Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4^th layer shows cancer still present.”).  You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin). 

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

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

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. 

Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site.  See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims involving two or more primary cancers).  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability.  Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

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

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

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

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

Seattle, WA

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle

EEOICPA Fin. Dec. No. 12177-2002 (Dep’t of Labor, September 17, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On April 1, 2004, you submitted a Form EE-1 (Claim for Employee Benefits under the EEOICPA), to the Portsmouth Resource Center, based on chronic beryllium disease (CBD).  You had previously submitted a claim for beryllium sensitivity on October 16, 2001.  A previous recommended decision granting medical monitoring for beryllium sensitivity effective October 16, 2001, was issued by the Cleveland district office on April 24, 2002, and a prior final decision affirming this recommended decision was issued by FAB on June 11, 2002.

You also had previously submitted a Form EE-3 (Employment History) that indicated that you worked at the Rocky Flats Plant in Golden, Colorado from 1990 to 1992 and the Feed Materials Production Center (FMPC) in Fernald, Ohio from 1992 to the present. Both of these facilities are designated by the Department of Energy (DOE) as Department of Energy facilities from 1951 to present and both throughout the course of their operations had the potential for beryllium exposure at the site, due to beryllium use, residual contamination and decontamination activities.  See The DOE, Office of Worker Advocacy Facility List. 

On November 13, 2001, DOE verified your employment at the FMPC from June 1, 1992 to present.  The DOE had no records to confirm that you were employed directly by the Rocky Flats Plant. 

You submitted medical records, including a lymphocyte transformation test dated August 25, 1995 that showed an abnormal response to beryllium sulfate.  A medical report from Lee S. Newman, M.D., F.C.C.P., at National Jewish Medical Center and Research Center, dated February 24, 2004, described a pulmonary function test which demonstrated a progressive gas exchange abnormality which had worsened since 2002 and a CT scan of the thorax that indicated parenchymal findings consistent with chronic beryllium disease.  There is also a medical consultation from Milton D. Rossman, M.D., at the University of Pennsylvania Medical Center, dated August 1, 2004, who opined that the findings from the CT scan and the pulmonary function tests performed in February 2004 are both consistent with chronic beryllium disease.  Dr. Rossman stated that the specific CT scan findings were that of nodular lesions consistent with granulomas, air trapping and evidence of ground glass abnormalities and that the specific pulmonary function test finding was that of an abnormality of the diffusion capacity. 

On August 31, 2004, the Cleveland district office issued a recommended decision concluding that you are a covered beryllium employee as that term is defined by 42 USC § 7384l(7), you were exposed to beryllium in the performance of duty, pursuant to 42 U.S.C. § 7384n, and are shown to have a covered beryllium illness shown in 42 USC § 7384l(8)(B), as you have chronic beryllium disease per the evidentiary criteria shown in 42 U.S.C. § 7384l(13).  The district office further concluded that as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s(a)(1).  The district office also concluded that pursuant to 42 U.S.C. § 7384s(b), you are also entitled to medical benefits for chronic beryllium disease, effective June 11, 2002, as those benefits are described in 42 U.S.C. § 7384t. 

On September 8, 2004, the Final Adjudication Branch received written notification from you, indicating that you waive any and all rights to file objections to the recommended decision. 

FINDINGS OF FACT

1.      You filed a claim for employee benefits for chronic beryllium disease on April 1, 2004. 

2.      You were employed at the Feed Materials Production Center in Fernald, Ohio, a Department of Energy facility, from June 1, 1992 to at least November 13, 2001. 

3.      You are a covered beryllium employee who worked at Feed Materials Production Center in Fernald, Ohio, during a period when beryllium dust particles or vapor may have been present. 

4.      On February 24, 2004, you were diagnosed with chronic beryllium disease.  The August 25, 1995, results of the beryllium lymphocyte proliferation test in addition to the February 2004 CT scan showing changes consistent with CBD and the February 2004 pulmonary function testing showing pulmonary deficits consistent with CBD, indicate that you have chronic beryllium disease meeting the statutory criteria for a diagnosis on or after January 1, 1993. 

5.      The effective date of medical benefits for the CBD is October 16, 2001, the same date as the effective date of medical benefits for the beryllium sensitivity. 

CONCLUSIONS OF LAW

In order to be afforded coverage as a “covered beryllium employee,” you must show that you were exposed to beryllium while in the performance of duty while employed at a DOE, or under certain circumstances, while present at a DOE facility or a facility owned and operated by a beryllium vendor, during a period when beryllium dust, particles, or vapor may have been present at such a facility.  See 42 U.S.C. §§ 7384l(7); 7384n(a).  Based on your covered employment at the FMPC during a period when beryllium dust, particles or vapor may have been present, you were exposed to beryllium in the performance of duty. 

In addition, there must be medical documentation of the condition in order to be eligible for benefits based on chronic beryllium disease.  The requirements for diagnoses on or after January 1, 1993 are:  the employee must have beryllium sensitivity [based on a positive lymphocyte proliferation test], together with lung pathology consistent with chronic beryllium disease, including–a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; a computerized axial tomography scan (CT) showing changes consistent with chronic beryllium disease; or pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.  See 42 U.S.C. § 7384l(13)(A). 

The record contains the results of your BeLPT test showing an abnormal response to beryllium sulfate, and the findings from the CT scan and pulmonary function test which are consistent with a diagnosis of CBD.  See 42 U.S.C. § 7384l(13)(A). 

You are a “covered beryllium employee” as defined in § 7384l(7) of the Act, who was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA.  See 42 U.S.C. §§ 7384l(7); 7384n(a).  Further, the medical evidence shows the presence of CBD, as provided for in § 7384l(13)(A) of the Act.  See 42 U.S.C. § 7384l(13)(A). 

For the foregoing reasons, the undersigned hereby approves your claim for CBD.  You are entitled to compensation in the amount of $150,000, pursuant to § 7384s(a) of the EEOICPA.  See 42 U.S.C. § 7384s(a). 

The Final Adjudication Branch notes that the district office in their recommended decision concluded that you were entitled to medical benefits for CBD from June 11, 2002, the date of the Final Decision which affirmed your entitlement to medical monitoring for beryllium sensitivity.  The Final Adjudication Branch finds that you are entitled to medical benefits for CBD from October 16, 2001, which is the same medical status effective date for the beryllium sensitivity.  Therefore, you are entitled to reimbursement of medical expenses related to your condition of CBD, retroactive to October 16, 2001.  See 42 U.S.C. § 7384t; 20 C.F.R. § 30.400(a). 

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10001749-2005 (Dep’t of Labor, December 14, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for impairment benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA).  Your claim is approved for compensation in the amount of $62,500.  Adjudication of this claim will not preclude your potential entitlement to additional compensation under the Act for wage-loss and/or increased impairment.    

STATEMENT OF THE CASE

On March 22, 2005, the Final Adjudication Branch issued a Notice of Final Decision During the Interim Administration Period.  Based on your confirmed employment with Union Carbide, Martin Marietta and Lockheed Martin at the Paducah Gaseous Diffusion Plant (PGDP) from October 3, 1955 through June 30, 1999, and a positive determination for asbestosis by a panel accepted by the Secretary of Energy under former Part D, the FAB found you to be a “covered DOE contractor employee” as defined by 42 U.S.C. § 7385s(1).  As such, the FAB awarded you medical benefits for asbestosis in accordance with 42 U.S.C. § 7384t beginning on your May 15, 2002 Department of Energy filing date.  The FAB deferred adjudication for wage-loss and/or impairment.

On September 8, 2005, the district office received your statement of intent to pursue a claim for impairment benefits.  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 the covered condition and the extent of the impairment attributable to your covered condition), your case was referred for review to a Department of Labor Medical Consultant.  The medical consultant used the American Medical Association’s Guides to the Evaluation of Permanent Impairment and opined that you have a class 2 impairment classification with a range of 10-25% impairment (See AMA’s Guides to the Evaluation of Permanent Impairment, 5^th Ed. 2005).  Given your physical findings, current treatment and severely compromised activities of daily living (ADL), the medical consultant calculated your minimum impairment rating attributed to the accepted covered condition, asbestosis, to be 25%.

On November 8, 2005, the Cleveland district office issued a recommended decision finding that you are entitled to $2,500 for each of the twenty five percentage points the medical consultant found to be a result of the accepted covered illness.  As such the district office concluded that you are entitled to compensation in the amount of $62,500. 

On November 23, 2005, the FAB received written notification that you waive any and all objections to the November 8, 2005 recommended decision.  On December 14, 2005, the FAB received your written confirmation that you have not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

After considering the evidence of record and your waiver of objections, the FAB hereby makes the following:

FINDINGS OF FACT

1.         You filed a claim under EEOICPA with the Department of Labor on July 31, 2001.

2.         You filed a claim under EEOICPA with the Department of Energy on May 15, 2002.

3.         A final decision was issued by the Department of Labor under Part E of the Act on March 22, 2005, concluding that you are a covered DOE contractor employee who contracted asbestosis due to work-related exposure to a toxic substance, and awarded you medical benefits for asbestosis commencing on your May 15, 2002 filing date.

4.         Based on the 5^th edition of the AMA’s Guides, your minimum impairment rating due to asbestosis is calculated to be 25%.

5.         You confirmed in writing that you never received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

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

CONCLUSIONS OF LAW

The Final Adjudication Branch hereby finds that you have a permanent impairment that is the result of the accepted covered condition, asbestosis, and that your minimum impairment rating is calculated to be 25%.  The FAB further finds that you are entitled to $2,500 for each percentage point of your minimum impairment rating attributed to the accepted condition.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation for impairment in the amount of $62,500 under 42 U.S.C. § 7382s-2(a)(1)(A) and (B).

In addition, the May 22, 2005 final decision awarded you medical benefits commencing on your May 15, 2002 Department of Energy filing.  This decision should serve as a correction.  Your entitlement to medical benefits is retroactive to the earliest date of filing and that would be the July 31, 2001 Department of Labor filing date.  Accordingly, the Final Adjudication Branch hereby concludes that you are also entitled to medical benefits for asbestosis commencing on July 31, 2001. 

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch

Entitlement to

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

FINDINGS OF FACT

1.      You filed a claim for employee benefits on September 24, 2001.

2.      You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

3.      You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA.  See 42 U.S.C. § 7384l(9)(B).

4.      You were diagnosed with multiple skin cancers.

5.      Your cancer diagnoses were made after you began employment with the Department of Energy.

6.      The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.

7.      The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82.  See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.

8.      The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81.  The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81.  See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E. 

9.      After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation.  Additional calculations of probability of causation were not required to be determined.  See 42 C.F.R. § 82.10(k). 

CONCLUSIONS OF LAW

The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. 

The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face).  Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4^th layer shows cancer still present.”).  You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin). 

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

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

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations.  See 20 C.F.R. § 30.115.  On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. 

Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site.  See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims involving two or more primary cancers).  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability.  Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

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

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

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

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

Seattle, WA

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle

EEOICPA Fin. Dec. No. 22218-2003 (Dep’t of Labor, May 8, 2003)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On April 29, 2003, the District Office issued a recommended decision concluding that you had received an award under § 5 of the Radiation Exposure Compensation Act, and that you are entitled to additional compensation in the amount of $50,000 pursuant to 42 U.S.C. § 7384u(a) for pneumoconiosis, the medical condition for which you received an award under the Radiation Exposure Compensation Act.  The District Office’s recommended decision also concluded that pursuant to 42 U.S.C. § 7384t, you are entitled to medical benefits from January 29, 2002 for the treatment of pneumoconiosis.

On May 7, 2003, the Final Adjudication Branch received your written notification waiving any and all objections to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has thoroughly reviewed the case record and recommended decision and finds that it is in accordance with the facts and the law in this case. It is the decision of the Final Adjudication Branch that your claim is accepted.

DENVER, CO

May 8, 2003

Janet R. Kapsin

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 59062-2004 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On June 2, 2003, the employee filed a claim for compensation under the EEOICPA based on asbestosis and other lung condition.  That claim was recommended for denial by the Seattle district office; however, additional medical documentation was received by the Final Adjudication Branch, who vacated the recommended decision by Remand Order dated September 8, 2003.  The district office performed additional development of the medical evidence and recommended acceptance of the claim and medical benefits for chronic beryllium disease and denial of the claim for asbestosis, which was affirmed by Final Decision of the Final Adjudication Branch on July 6, 2004.  Before payment could be issued, however, the employee passed away on June 12, 2004, and the claim was administratively closed.  On June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004, you filed claims for survivor benefits under the EEOICPA based on chronic beryllium disease (CBD).  A Form EE-3 (Employment History) previously filed by the employee indicated he worked at the Idaho National Environmental and Engineering Laboratory (INEEL) for Keiser Construction from January 1, 1954 to August 30, 1954 and for  Phillips Petroleum, Idaho Nuclear, Aerojet General, and EG&G Idaho from October 1, 1954 to March 1, 1992.  A representative of the Department of Energy (DOE) verified the worker’s employment at INEEL from October 7, 1957 to March 2, 1992.  INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.  See DOE, Office of Worker Advocacy, Facility List. 

Medical evidence of record includes a chest x-ray and a CT scan, both dated October 13, 1992, that indicated the employee had multiple pleural plaques, and a chest x-ray, dated May 1, 2002, that indicated emphysematous changes within his lungs, densely calcified pleural plaques on the left lung, and scarring and associated bullous changes within the right lung base.  In addition, the record includes a history of a clinical course of treatment of the employee for asbestosis and chronic obstructive pulmonary disease (COPD) dating from October 1992 to March 2003.  The employee’s pulmonary function test results, from October 13, 1992, showed an FVC of 3.62 and an FEV1 of 1.57, with an FEV1/FVC ratio of 43% before bronchodilators, and an FVC of 4.6 and FEV1 of 1.59 after bronchodilators.  The employee’s DLCO was markedly diminished at 11.77 or 35% of predicted. 

District Medical Consultant Robert E. Sandblom, M.D., reviewed the employee’s medical records, in a report dated January 5, 2004, and indicated the claimant had chest radiographic (or CT) abnormalities characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder. 

You provided copies of your birth certificates that indicate each of you is the natural child of the employee, and copies of the certificates of marriage of [Claimant 1] and [Claimant 4] documenting your name changes.  The file also contains a copy of the employee’s certificate of death that indicates the employee was widowed when he passed away on June 12, 2004.  

The Seattle district office determined that the employee was a covered beryllium employee as defined in § 7384l(7) of the EEOICPA.  See 42 U.S.C. § 7384l(7).  Further, the Seattle district office determined that the evidence submitted meets the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 7384l(13), a covered occupational illness as defined by § 7384l(8)(B).  See 42 U.S.C. § 7384l(8)(B) and (13).  Also, the district office determined that you are the survivors of the employee, as defined by § 7384s(e)(3), and that you are entitled to compensation in the amount of $37,500.00 each pursuant to §§ 7384s(a)(1) and (e)(1) of the EEOICPA.  See 42 U.S.C. § §7384s(a)(1) and (e)(1).  In addition, the district office concluded that you are entitled to reimbursement of medical expenses for the employee’s chronic beryllium disease, retroactive to the date he filed his claim, June 2, 2003, through June 12, 2004, the date he passed away. 

FINDINGS OF FACT

1. The employee filed a claim for asbestosis and other lung condition, on June 2, 2003.

2. You filed claims for survivor benefits for chronic beryllium disease on June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004. 

3. The employee was employed at INEEL, a covered DOE facility, from October 7, 1957 to March 2, 1992.

4. INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.

5. The employee is a covered beryllium employee who worked at INEEL during a period when beryllium dust, particles or vapor may have been present.

6. The findings in the medical evidence are consistent with a diagnosis of chronic beryllium disease based on the statutory criteria for a  diagnosis before January 1, 1993.

7. The onset of the employee’s chronic beryllium disease on October 13, 1992, occurred after his exposure to beryllium in the performance of duty.

8. The employee passed away on June 12, 2004, and was not survived by a spouse.

9. You are the natural children and survivors of the employee.

CONCLUSIONS OF LAW

On August 20 ([Claimant 4]), August 23 ([Claimant 2 and Claimant 1]), and September 1 ([Claimant 3]), 2004, the Final Adjudication Branch received your written notifications that you waive any and all rights to file objections to the recommended decision.  

In order to be afforded coverage under § 7384n(a) of the EEOICPA as a “covered beryllium employee,” the employee must have worked for a beryllium vendor and sustained occupational exposure to beryllium while:

(1)   employed at a Department of Energy facility; or

(2)   present at Department of Energy facility, or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy;

during a period when beryllium dust, particles, or vapor may have been present at such a facility.  Further, the requisite exposure must be shown to have been “in the performance of duty,” which is presumed, absent substantial evidence to the contrary.  See 42 U.S.C. § 7384n(a); 20 C.F.R. § 30.205(1), (2) and (3). 

In addition, there must be medical documentation of the condition in order to be eligible for survivor’s benefits based on 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 radiograph (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 chronic respiratory disorder.

(V)        Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

See 42 U.S.C. § 7384l(13)(B).  Based on the employee’s covered employment at a DOE facility, he was exposed to beryllium in the performance of duty.  See 42 U.S.C. § 7384n(a). 

The record contains medical evidence to show a diagnosis of CBD.  Medical reports include a chest x-ray and a CT scan that are characteristic of chronic beryllium disease showing that the employee had multiple pleural plaques.  The employee also had an abnormal pulmonary function test, and he was treated for lung disease over a period of years.  A review of the employee’s medical records by District Medical Consultant Robert E. Sandblom, M.D., dated January 5, 2004, indicated the claimant had abnormal chest radiographs characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder.  This evidence satisfies a required three of five criteria for a diagnosis of chronic beryllium disease before January 1, 1993.  See 42 U.S.C. § 7384l(13)(B).  The medical evidence indicates that a diagnosis of chronic beryllium disease existed at least by October 13, 1992.  Consequently, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease before January 1, 1993.

The record includes copies of each of your birth certificates indicating you are each a natural child of the employee, documentation showing the legal change of names of [Claimant 1] and [Claimant 4], and a copy of the employee’s death certificate that indicates he was widowed at the time of his death. 

The employee was a “covered beryllium employee” as defined in § 7384l(7) of the Act, and was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA.  See 42 U.S.C. §§ 7384l(7); 7384n(a).  Further, the medical evidence shows the presence of chronic beryllium disease, as provided for in § 7384l(13)(B) of the Act.  See 42 U.S.C. § 7384l(13)(B). 

For the foregoing reasons, the undersigned hereby accepts your claims for chronic beryllium disease.  You are each entitled to compensation in the amount of $37,500.00 pursuant to § 7384s(e)(A) of the Act.  See 42 U.S.C. § 7384s(e)(A).  Further, you are entitled to reimbursement of medical expenses the employee may have incurred, retroactive to the date of his application on June 2, 2003, for the condition of chronic beryllium disease.  See 42 U.S.C. § 7384t.

Seattle, Washington

James T. Carender

Hearing Representative, Final Adjudication Branch

EEOICPA Fin. Dec. No. 61108-2004 (Dep’t of Labor, November 4, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On December 21, 2001, [Employee], (hereinafter referred to as the employee), filed a claim for benefits under the EEOICPA, Form EE-1, in which he indicated that he suffered from ulcers, thyroid problems, a kidney cyst and prostate cancer.  On July 7, 2004, the employee filed a second claim for benefits, Form EE-1, in which he identified lung cancer with brain metastases as the medical condition being claimed.  On the EE-3 form, the employee indicated that he worked at the Oak Ridge Gaseous Diffusion Plant (K-25) from April, 1957 until an unspecified date and that he worked at Y-12 from September of an unspecified year until September, 1995.[1]  The Department of Energy verified that the employee worked at K-25 from May 27, 1957 until September 1, 1985 and at Y-12 from September 2, 1985 until September 29, 1995.  The DOE also verified that the employee was monitored through the use of a dosimetry badge.

As part of the medical documentation that the employee submitted was a January 25, 2001 pathology report by Dr. Stephen C. Lawhorn, in which he diagnosed adenocarcinoma of the prostate, and a June 25, 2004 pathology report by Dr. Joseph B. Eatherly, in which he diagnosed large cell carcinoma of the left lung.  On July 28, 2004, the district office issued a recommended decision, which concluded that as a member of the Special Exposure Cohort the employee was entitled to compensation and benefits for his specified lung cancer. 

On August 10, 2004, [Claimant 1], and on August 13, 2004, [Claimant 2], [Claimant 3], [Claimant 4] and [Claimant 5] each filed a claim for survivor benefits, Form EE-2.  You each indicated on your EE-2 forms that your late father, the employee, died on August 1, 2004 from lung cancer with brain metastases.  You submitted the following evidence in support of your claims as the employee’s eligible surviving beneficiaries: the employee’s death certificate, which indicated that he was divorced when he died on August 1, 2004; each of your birth certificates; [Claimant 1]‘s, [Claimant 3]‘s, and [Claimant 4]‘s marriage certificates; and [Claimant 5]‘s marriage certificates and divorce decrees.   

On September 8, 2004, the Final Adjudication Branch (FAB) vacated the July 28, 2004 recommended decision and remanded the employee’s claim to the district office for development of your survivor claims.  On September 28, 2004, the district office issued a new recommended decision, which concluded that the employee suffered from lung cancer, that the employee was a member of the Special Exposure Cohort in that he worked at least 250 aggregate days at K-25 in a job that was monitored through the use of a dosimetry badge and that you were the employee’s surviving beneficiaries.  As such, the district office recommended that you each be entitled to $30,000 in survivor’s compensation, in addition to medical benefits for medical bills that were incurred between July 7, 2004 and August 1, 2004 for treatment of the employee’s lung cancer.  The district office also concluded in their recommended decision that the employee’s claimed conditions of ulcers, thyroid problems and a kidney cyst are not covered occupational illnesses under the Act.  On October 5, 2004, [Claimant 1], on October 6, 2004, [Claimant 3], and on October 8, 2004, [Claimant 2], [Claimant 4] and [Claimant 5] each submitted their waivers of objection to the recommended decision. 

With regard to the employee’s established prostate cancer, as this is not a specified cancer the district office submitted an application package to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction on May 10, 2002, in accordance with § 30.115 of the implementing regulations.  20 C.F.R. § 30.115.  The district office indicated in their new recommended decision that they were awaiting the NIOSH final report of dose reconstruction prior to determining whether or not the employee’s prostate cancer was “at least as likely as not” related to his covered employment. 

Therefore, based upon a review of the case file evidence, I make the following:

FINDINGS OF FACT

1.      On December 21, 2001, and again on July 1, 2004, the employee filed a claim for benefits under the EEOICPA, Form EE-1.

2.      The employee’s employment from May 27, 1957 until September 1, 1985 at K-25 and from September 2, 1985 until September 29, 1995 at Y-12 was verified.    

3.      The employee provided medical evidence, which established that he was diagnosed with prostate cancer on January 25, 2001 and with lung cancer on June 25, 2004.

4.      The employee’s claimed conditions of ulcers, a kidney cyst and thyroid problems are not covered occupational illnesses under the Act.

5.      On July 28, 2004, the district office issued a recommended decision, which concluded that the employee was entitled to compensation and medical benefits for lung cancer.

6.      On August 10, 2004, [Claimant 1], and on August 13, 2004, [Claimant 2], [Claimant 3], [Claimant 4] and [Claimant 5] each filed a claim for survivor benefits, Form EE-2. 

7.      On September 8, 2004, the FAB remanded the employee’s claim to the district office for development of your survivor claims.

8.      You established that you are the late employee’s eligible surviving beneficiaries.  

9.      The district office issued a recommended decision on September 28, 2004, which concluded that you each were entitled to $30,000 in survivors’ compensation, in addition to medical benefits for medical bills that were incurred between July 7, 2004 and August 1, 2004 for treatment of the late employee’s lung cancer.

Therefore, based upon a review of the case file evidence, I make the following:

CONCLUSIONS OF LAW

Pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).  The late employee’s claimed conditions of ulcers, a kidney cyst and thyroid problems are not covered occupational illnesses under the Act.

Pursuant to § 7384l(14)(A)(i) of the Act, a member of the Special Exposure Cohort (SEC) is defined as a Department of Energy employee, Department of Energy contractor employee, or atomic weapons employee who was employed for at least 250 aggregate workdays before February 1, 1992 at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, “and, during such employment (i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee’s body to radiation.” 42 U.S.C. § 7384l(14)(A)(i).  The evidence of record established that the employee worked at least 250 days during a covered time period at K-25 and that he worked in a job that was monitored through the use of a dosimetry badge.  Therefore, the undersigned finds that the employee was a member of the SEC, pursuant to § 7384l(14)(A)(i) of the Act. Pursuant to § 30.5(dd)(5)(2) of the implementing regulations, lung cancer is considered a specified cancer provided that its onset occurred at least five years after the employee’s first exposure to radiation.  20 C.F.R. § 30.5(dd)(5)(2).  Additionally, pursuant to § 7384l(9)(A) of the Act, a covered employee with cancer is “an individual with a specified cancer who is a member of the Special Exposure Cohort, if and only if that individual contracted that specified cancer after beginning employment at a Department of Energy facility (in the case of a Department of Energy employee or Department of Energy contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee).” 42 U.S.C. § 7384l(9)(A).  The evidence of record established that as a member of the SEC the employee was diagnosed with lung cancer more than five years after he began his employment at K-25.  Therefore, the undersigned finds that the employee was a covered employee with cancer, pursuant to § 7384l(9)(A) of the Act.   

The undersigned has reviewed the facts and the district office’s September 28, 2004 recommended decision and finds that you each are entitled to $30,000 in survivor’s compensation for the employee’s lung cancer, pursuant to §§ 7384s(a), 7384s(e)(1)(A) of the Act, and that you are entitled to medical benefits for medical bills that were incurred between July 7, 2004 and August 1, 2004 for the treatment of the employee’s left lung cancer, pursuant to § 7384t of the Act.  42 U.S.C. §§ 7384s(a), 7384s(e)(1)(A),7384t.

Washington, DC

Richard Koretz

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, Y-12 in Oak Ridge, TN is a covered DOE facility from 1942 to the present, and the Oak Ridge Gaseous Diffusion Plant (K-25) in Oak Ridge, TN is a covered DOE facility from 1943 to the present. 

EEOICPA Fin. Dec. No. 10000216-2005 (Dep’t of Labor, March 4, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA).  Your claim for medical benefits under Part E of the Act is hereby accepted.

On February 24, 2005, the Jacksonville district office issued a recommended decision finding that you are a covered employee and were employed at a Department of Energy (DOE) facility by a DOE contractor in accordance with 42 U.S.C. § 7385s(1); and that you are entitled to medical benefits in accordance with 42 U.S.C. § 7385s-8 for the condition of lung scarring related to asbestosis.  Consequently, the district office concluded that you are entitled to medical benefits in accordance with 42 U.S.C. § 7385s-4(b).  On March 3, 2005, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. 

The evidence of record establishes that your application meets the statutory criteria for compensability for medical benefits as defined in Part E of the EEOICPA.  In this instance, the evidence confirms that you had covered employment with Union Carbide Corporation and Martin Marietta Energy Systems in Oak Ridge, Tennessee at the Y-12 plant from July 13, 1970 to March 30, 1975; at the K-25 gaseous diffusion plant from March 31, 1975 to July 31, 1982; and at the Y-12 plant from August 1, 1982 to September 15, 1994, and supports a causal connection between your condition and your work-related exposure to a toxic substance at a DOE facility.  Specifically, the evidence of record establishes that a Physicians Panel review under former Part D of the EEOICPA has been completed, and that the Secretary of Energy accepted the Panel’s affirmative determination of your covered illness at a DOE facility.  This evidence establishes your entitlement to medical benefits under Part E of the EEOICPA.

The Final Adjudication Branch hereby finds that [Employee] is a covered employee as defined in 42 U.S.C. § 7385s(1), and contracted lung scarring related to asbestosis due to work-related exposure to a toxic substance at a DOE facility.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to medical benefits effective November 8, 2001 under Part E of the EEOICPA for lung scarring related to asbestosis.  Adjudication of your potential entitlement to additional compensation (based on wage loss and/or impairment) is deferred until after the effective date of the Interim Final Regulations.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 10002490-2005 (Dep’t of Labor, July 8, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended.  42 U.S.C. § 7384 et seq.  For the reasons set forth below, your claim is accepted in part and deferred in part.  Since you submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with the implementing regulations.  20 C.F.R. § 30.312.

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

STATEMENT OF THE CASE

On December 16, 2001, according to the Paducah Resource Center, you filed a Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.  On the Form EE-3, Employment History, you stated you were employed as a senior lab analyst by Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.  The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.  

A previous Final Decision was issued by the Department of Labor on May 29, 2002, denying your claim for compensation because you did not provide medical evidence sufficient to establish a diagnosis of an occupational illness under the Act.  42 U.S.C. § 7384l(15).

You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.  A Physicians Panel review under former Part D of the Act has been completed.  The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility.  This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility.  42 U.S.C. § 7385s-4(b).  On September 28, 2004, the DOE advised you of the Panel’s affirmative determination. 

On January 31, 2005, you were contacted by the Jacksonville district office and requested to provide additional information.  You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

On March 7, 2005, the Jacksonville district office issued a recommended decision concluding that you are entitled to medical benefits for bronchitis and pneumonia beginning December 16, 2001. 

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  These 60 days expired on May 6, 2005.  On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.

OBJECTIONS

In the letter of objection, you stated that you agreed with the positive determination for bronchitis and pneumonia but disagreed with the negative determination for brain tumor.  However, the recommended decision did not address your claim for brain tumor and noted that conditions not accepted by the physicians’ panel will be deferred for additional development.  The information you submitted will be included in your case file for future reference during development and adjudication of any additional entitlement.

FINDINGS OF FACT

1.  On December 16, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.

2.  The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986. 

3.  You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.  A Physicians Panel review under former Part D of the Act has been completed.  The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility.  This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility.  On September 28, 2004, the DOE advised you of the Panel’s affirmative determination.

4.  You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

5.  On March 7, 2005 the Jacksonville district office issued a recommended decision.

6.  On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.  The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on March 7, 2005, and the subsequently submitted objections.  I find that the decision of the Jacksonville district office is supported by the evidence and the law, and cannot be changed.

The Final Adjudication Branch has reviewed the record and the recommended decision of March 7, 2005 and concludes that you were a DOE contractor employee with bronchitis and pneumonia due to exposure to a toxic substance at a DOE facility.  42 U.S.C. §§ 7385s(1), 7385s-4.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to medical benefits for bronchitis and pneumonia effective December 16, 2001.  42 U.S.C. § 7385s-8.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Termination of

EEOICPA Fin. Dec. No. 5781-2002 (Dep’t of Labor, September 12, 2006)

NOTICE OF FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons stated below, your claim for benefits is denied, effective June 4, 2003.

STATEMENT OF THE CASE

On August 2, 2001, you filed a Form EE-1 (Claim for Benefits under EEOICPA) based on beryllium sensitivity.  You provided a copy of a report of Proliferation Studies, dated March 6, 1998, stated that a significant proliferative response to beryllium salts was observed.  The Department of Energy (DOE) verified that you worked at the Beryllium Corporation of America in Reading, PA, from January 13, 1960 to February 28, 1993.  The Beryllium Corporation of America in Reading, PA, is recognized as a covered beryllium vendor from 1947 to 1979.  See DOE, Office of Worker Advocacy, Facility List.

On July 29, 2002, the Cleveland district office received a completed Form EN-15, signed and dated by you on July 24, 2002.  In response to a question on that form, you stated that you had not filed a tort suit against a beryllium vendor in connection with an occupational illness for which you would be eligible to receive compensation under the EEOICPA.  Above your signature, that form notified you that you must immediately report to OWCP (Office of Workers’ Compensation Programs) any third party settlements you receive and any tort suits you file against a beryllium vendor.

On October 29, 2002, the Final Adjudication Branch (FAB) issued a final decision which concluded that, because you are a covered beryllium employee who had been found to have beryllium sensitivity, you were entitled to beryllium sensitivity monitoring beginning on August 2, 2001.

On June 4, 2003, you and approximately 50 other plaintiffs filed a tort suit against the Beryllium Corporation of America and its successors in the Court of Common Pleas of Philadelphia County, PA.  Paragraph 55 of the complaint stated that the plaintiffs “resided and/or worked in close proximity to the plant, commuted to and/or worked within the plant. . . .”  Paragraph 65 stated that “[d]uring each of the plaintiffs’ residence and/or employment. . .they were exposed to unlawful, dangerous and unhealthful emissions of beryllium resulting in serious and permanent injury, or the need for medical monitoring. . . .”  Under Count I (Paragraph 80) of that suit, you alleged that, as a direct and proximate result of the negligence, carelessness, and recklessness, of the defendants, you sustained, “occupational and non-occupational exposure resulting in beryllium sensitivity,” for which you demanded “judgment against the defendants. . .in an amount in excess of Fifty Thousand ($50,000) Dollars.”

The complaint was dismissed by the court on August 5, 2003.  The court ruled that the complaint had improperly joined multiple unrelated plaintiffs and ordered that the plaintiffs be severed.  You filed an amended complaint on September 18, 2003, and second and third amended complaints in April and May 2004.  Each amended complaint alleged damages from your occupational exposure to beryllium.  No evidence has been received to show that this tort suit has been dismissed.

The tort suit was reviewed by the Counsel for Energy Employees Compensation, Division of Federal Employees’ and Energy Workers’ Compensation.  The Counsel reported in a memorandum dated January 4, 2005, that an examination of your complaint revealed that your claims relied, at least in part, on your exposure to beryllium while working at the Reading plant and that your wife’s consortium claim was derivative of your work-related exposure to beryllium.  For that reason, it was determined that at least some aspects of your suit clearly fall within the statutory definition of a covered tort case subject to 42 U.S.C. § 7385d, because it includes claims against beryllium vendors that arise out of the exposure of a covered beryllium employee, while so employed, to beryllium.

The Counsel further noted that 42 U.S.C. § 7385d(c) explicitly bars further receipt of benefits under Part B of the Act by any beneficiary who files a tort suit covered under 42 U.S.C. § 7385d(d) after April 30, 2003, if that date is more than 30 months after the diagnosis of a covered beryllium disease.  Because you filed your suit on June 4, 2003, you could not have dismissed that suit within the time limits specified in 42 U.S.C. § 7385d(c).  For those reasons, the Counsel determined that you no longer had any eligibility for benefits under Part B of the Act, by operation of law, as of June 4, 2003.

The Counsel also noted that a claimant who accepts EEOICPA benefits has legal obligations under the Act.  At the time you accepted benefits, you had signed a Form EN-15 and certified that you knew you must immediately report to OWCP any tort suit you filed against a beryllium vendor.

On March 28, 2006, the Director, Division of Energy Employees Occupational Illness Compensation (DEEOIC), issued an order vacating the final decision of October 29, 2002, and directing the Cleveland district office to issue a new recommended decision terminating entitlement to benefits under EEOICPA effective June 4, 2003.  On April 19, 2006, the district office issued a recommended decision pursuant to the Director’s order.

OBJECTIONS

On June 16, 2006, the Final Adjudication Branch received your statement of objection to the recommended decision.  You presented the following objections:

1. You argue that bases for your claims in your tort suit are environmental in nature.

2. You argue that a Memorandum Opinion of an Associate Solicitor for Employee Benefits in the matter of [Name Deleted] affirmed that a claimant can maintain both a claim under the EEOICPA for occupational exposure to beryllium and a separate tort suit for environmental exposure to beryllium

3. You argue that your complaint is identical to the one filed by [Name Deleted], Docket No. 12401-2002, who brought an exposure claim as a result of the operations of the Reading plant.  You state that your and [Name Deleted] lawsuits are identical and that [Name Deleted] was awarded benefits by the Final Adjudication Branch.

While a claimant may maintain a claim under the EEOICPA based on occupational exposure to beryllium and a separate tort suit based on environmental exposure to beryllium, your tort suit specifically alleges occupational and environmental exposure to beryllium.  A review of [Name Deleted]‘s suit fails to reveal any reference to occupational exposure as the basis of his claim for damages.  For that reason, your tort suit and [Name Deleted]‘s tort suit are not identical.

Because your complaint and demand for damages relies, at least in part, on your exposure to beryllium while working at the Reading plant, and because your wife’s consortium claim is derivative of your work-related exposure to beryllium, your suit is a “covered tort case” under the provisions of 42 U.S.C. § 7385d(d).  As such, 42 U.S.C. § 7385d(c) requires that your suit must be dismissed no later than April 30, 2003; as that date is later than the date that is 30 months from the date you were determined to have been sensitized to beryllium.  (Beryllium sensitivity was first identified on March 6, 1998.  September 6, 2000, is 30 months from that date.)

FINDINGS OF FACT

1. You were awarded medical monitoring for beryllium sensitivity, effective August 2, 2001, by final decision issued on October 29, 2002.

2. You filed a tort suit on June 4, 2003, against a beryllium vendor based on injuries incurred on account of exposure for which you had been found to be entitled to compensation under Part B of the Act in the form of medical monitoring for beryllium sensitivity.

3. The Director, DEEOIC, vacated the final decision of October 29, 2002.

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  In reviewing any objections submitted, the FAB will review the written record, in the manner specified in 20 C.F.R. § 30.313, to include any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case, as well as the written objections and must conclude that no further investigation is warranted.

I find that the tort suit you and your wife filed on June 4, 2003, against a beryllium vendor, is a “covered tort suit” as defined by 42 U.S.C. § 7385d(d).  Because you could not have dismissed that suit by the latest date provided by 42 U.S.C. § 7385d(c)(3), April 30, 2003, I find that you are no longer entitled to medical monitoring for beryllium sensitivity effective June 4, 2003.

Cleveland, OH

Anthony Zona

Hearing Representative

Final Adjudication Branch