Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of “Special Exposure Cohort.”

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Special Exposure Cohort

Designation by HHS

EEOICPA Fin. Dec. No. 787-2005 (Dep’t of Labor, June 29, 2005)

NOTICE OF FINAL DECISION

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) concerning your claim for compensation under 42 U.S.C. § 7384 et seq., the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, (EEOICPA or the Act).  For the reasons stated below, your claim for survivor benefits is accepted.  Adjudication of your claim under § 7385s-3 is deferred pending further development.

STATEMENT OF THE CASE

You filed a claim for compensation as the surviving spouse of [Employee], (the employee), under § 7384s(e) of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) on August 3, 2001.  On Form EE-3 (Employment History for Claim under EEOICPA) you stated that he had been employed as a chemical operator by Mallinckrodt Chemical at the Mallinckrodt Destrehan Street Plant located in St. Louis, Missouri from 1945 until an unknown date.  The Department of Energy (DOE) has identified the Mallinckrodt Destrehan Street Plant as a DOE facility from 1942 through 1962.  On November 5, 2001, the DOE confirmed and verified the employee’s dates of employment at the Mallinckrodt Destrehan Street Plant from 1951 through 1966.  You stated that as a result of his exposure to radiation at the Mallinckrodt Destrehan Street Plant he developed brain cancer first diagnosed in 1983.  The employee died on September 12, 1983.  You submitted a death certificate for the employee and a record of your marriage to the employee.

Medical evidence was submitted in support of the claim.  This evidence included the employee’s death certificate that indicated the immediate cause of death on March 9, 1989 was pulmonary embolus and listed other significant conditions as brain tumor.  The evidence also included a pathology report describing a specimen of the employee’s brain tumor obtained on or about August 26, 1983 that provided a diagnosis of grade II astrocytoma, right frontal lobe (brain cancer).  The diagnosis was confirmed by a consultation report of Dr. Walter E. Stevens, MD completed on August 30, 1983.

The district office evaluated the employment and medical evidence and determined that the claim required referral to the National Institute for Occupational Safety and Health (NIOSH) to perform a dose reconstruction for the primary brain cancer.  A copy of the case file and the NIOSH Referral Summary Document were forwarded to NIOSH on November 20, 2001.

The term “covered employee with cancer” may include 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).  An employee who is a member of the Special Exposure Cohort and has a specified cancer does not require a specific finding of “the cancer is at least 50% as likely as not” related to the employment.

EEOICPA authorizes the addition of a class of employees to the Special Exposure Cohort (SEC) if the Secretary of HHS finds:

(1)  it is not feasible to estimate with sufficient accuracy the radiation dose that the class received; and (2)  there is a reasonable likelihood that such radiation dose may have endangered the health of members of the class.

On April 11, 2005, The Secretary of HHS designated as members of the SEC all employees who worked in the Uranium Division at the Mallinckrodt Destrehan Street facility between 1942-1948 based upon his finding that it was not feasible to estimate the radiation dose that the class received.  This designation became effective May 12, 2005.

NIOSH identified your claim as qualifying for inclusion in the SEC.  Therefore, NIOSH discontinued dose reconstruction under EEOICPA and the case file was returned to the district office on May 23, 2005.

On May 26, 2005, the Denver district office issued a recommended decision indicating the employee was a member of the Special Exposure Cohort.  The employee was diagnosed with a specified cancer.  As his surviving spouse you are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s(e)(1)(A).

On June 3, 2005, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

After reviewing the evidence in your claim, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

1.      The employee died on September 12, 1983.  You filed a claim for compensation, as the eligible surviving spouse of the employee, on August 3, 2001.

2.      The Department of Energy (DOE) verified the employment dates for the employee at the Mallinckrodt Destrehan Street Plant from January 1, 1943 until December 31, 1966. 

3.      The employee was diagnosed with grade II astrocytoma, right frontal lobe (brain cancer) on or about August 26, 1983.  The initial diagnosis was made after he began employment at the Mallinckrodt Destrehan Street Plant.

4.      The employee had employment aggregating to at least 250 work days between 1942 and 1948 in the Uranium Division at the Mallinckrodt Destrehan Street Plant and is eligible for inclusion in the Special Exposure Cohort as he was diagnosed with a specified cancer.

Based on the above noted findings of fact in this claim, the Final Adjudication Branch also makes the following:

CONCLUSIONS OF LAW

1.      The employee qualified as a member of the Special Exposure Cohort (SEC) as he was a DOE employee meeting the requirements pursuant to 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act.

2.      The employee had a specified cancer pursuant to § 7384l(17).

3.       The evidence establishes that the employee was a covered employee pursuant to 42 U.S.C. § 7384l(1).

4.      You have established that you are the current eligible survivor of the employee pursuant to 42 U.S.C. § 7384s.

5.      You are entitled to compensation in the amount of $150,000 as outlined under 42 U.S.C. § 7384s(e)(1)(A) of the Act.

6.      Pulmonary embolus is not a covered condition under the Act as defined in § 7384l(15).

The undersigned has thoroughly reviewed the case record and finds that it is in accordance with the facts and the law in this case.  The evidence of record establishes that that the employee meets the criteria of a covered employee with cancer as a qualified member of the Special Exposure Cohort with a specified cancer.  It is the decision of the Final Adjudication Branch that your claim for survivor benefits is accepted.

Denver, Colorado

June 29, 2005

Joyce L. Terry

District Manager

EEOICPA Fin. Dec. No. 18528-2006 (Dep’t of Labor, February 8, 2008)

NOTICE OF FINAL DECISION 

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

STATEMENT OF THE CASE

On January 3, 2002, you filed a claim for survivor benefits under EEOICPA as a surviving parent of [Employee].  You claimed the employee was employed by Dow Chemical, Rockwell International and EG&G at the Rocky Flats Plant[1] from 1964 to 1966, and from June 1, 1981 to 1993.  The Department of Energy verified the employee was employed at the Rocky Flats Plant from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

You claimed the employee was diagnosed with ovarian cancer.  The pathology report of the tissue obtained on December 28, 1995 described a diagnosis of moderately differentiated endometrioid-type adenocarcinoma of the left ovary.

The employee’s death certificate showed she was born on March 31, 1946; died on January 25, 2001 at the age of 54; and was widowed.  The death certificate also listed [Employee’s Spouse] as her spouse; [Employee’s Father] as her father; and [Claimant] as her mother.  The death certificate for [Employee’s Spouse] showed he died on February 15, 2000, and was married to [Employee] (maiden name given).  The employee’s birth and hospital certificates showed [Employee] was born on March 31, 1946; to [Employee’s Father]and [Claimant].  [Employee’s Father]‘s death certificate showed he died on November 27, 1993.

On December 2, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of her employment at the Rocky Flats Plant.  On February 17, 2006, a final decision was issued under Part B of EEOICPA denying your claim for survivor benefits based on a probability of causation of 26.93%, which showed that the employee’s cancer did not meet the 50% “at least likely as not” mandated level for compensability.

On August 6, 2007, the Secretary of the Department of Health and Human Services (HHS) designated the following classes of employees for addition to the Special Exposure Cohort (SEC):  Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.  The SEC designations for these classes became effective on September 5, 2007.

A review of the evidence of record indicates that the employee had a period of employment aggregating 250 days during the SEC period (January 1, 1959 through December 31, 1966); was monitored for neutron exposures, as her name appears on the Neutron Dose Report (NDR)[2]; and was diagnosed with ovarian cancer, a specified cancer, more than five years after her first exposure to radiation at the Rocky Flats Plant.  Based on the SEC determinations for certain employees at the Rocky Flats Plant, a Director’s Order was issued on December 28, 2007 that vacated the prior decision issued under Part B.

On December 28, 2007, the district office issued a recommended decision to accept your claim for survivor benefits under Part B of EEOICPA and referred the case to the FAB for an independent assessment of the evidence and a final decision on your claim. 

On January 11, 2008, the FAB received your signed statement certifying that neither you nor the employee filed any lawsuits, tort suits, or state workers’ compensation claims; or received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

After considering the recommended decision and all evidence in the case, the FAB hereby makes the following:

FINDINGS OF FACT

1. On January 3, 2002, you filed a claim for survivor benefits as the surviving parent of [Employee]. 

2. You are the surviving parent of [Employee], as supported by birth and death certificates.

3. The employee was employed at the Rocky Flats Plant, a covered DOE facility, from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

4. Effective September 5, 2007, employees at the Rocky Flats Plant that worked from April 1, 1952 through December 31, 1958, and/or January 1, 1959, through December 31, 1966, and were monitored or should have been monitored for neutron exposure, were added to the SEC.

5. The employee has a period of employment at the Rocky Flats Plant aggregating 250 days during the SEC period, September 17, 1964 through July 25, 1966.

6. The employee was monitored for neutron dose exposure during the period September 17, 1964 to July 25, 1966, as confirmed by the NDR.

7. The employee was diagnosed with ovarian cancer (a specified cancer) on December 28, 1995. This diagnosis occurred more than five years after her first exposure to radiation at the Rocky Flats Plant.

8. The evidence of record contains your signed statement certifying that neither you nor the employee filed a lawsuit, tort suits, or state workers’ compensation claims; received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

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

CONCLUSIONS OF LAW

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, the FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a).  On January 11, 2008, the FAB received your written notification waiving any and all objections to the recommended decision.

Part B of EEOICPA provides benefits for an employee diagnosed with a specified cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility.  Such employee is considered “a covered employee with cancer.” 

On August 6, 2007, the Secretary of HHS designated the following classes of employees for addition to the SEC:  Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.  The SEC designations for these classes became effective September 5, 2007. 

The employee is a member of the SEC as designated above and defined by 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act, and has been diagnosed with ovarian cancer, a specified cancer.  The FAB concludes that the employee is a “covered employee with cancer” pursuant to the requirements of 42 U.S.C. § 7384l(9)(A).

You have established that you are the employee’s eligible survivor, pursuant to 42 U.S.C. § 7384s(e)(3)(C) of the Act.  Therefore, you are entitled to compensation in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1) and (e)(1)(C).

Accordingly, your claim for survivor benefits for the employee’s ovarian cancer is approved for compensation under Part B of the Act.

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 25854-2006 (Dep’t of Labor, January 14, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for survivor benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim is hereby accepted.

STATEMENT OF THE CASE

On March 25, 2002, [Claimant] filed a claim for survivor benefits under EEOICPA as the surviving spouse of [Employee].  She reported that the employee was employed as a metallurgical operator/scheduler and general clerk at the Rocky Flats Plant[1] from February 1963 to February 1972.  The Department of Energy (DOE) verified that the employee was employed at the Rocky Flats Plant from February 25, 1963 to February 3, 1972.  Additional records received from DOE documented that the employee by employed by Dow Chemical, a DOE contractor, during his employment at Rocky Flats. 

In support of her claim, [Claimant] alleged that the employee was diagnosed with metastatic kidney cancer.  A pathology report of the tissue obtained on January 17, 1972 described a diagnosis of clear cell adenocarcinoma of the left kidney.  An autopsy report dated February 22, 1972 also provided a diagnosis of adenocarcinoma of the left kidney with metastatic carcinoma to the right adrenal gland, both lungs, pancreatic lymph nodes, and right paravertebral lymph nodes.

The employee’s death certificate reported that he was born on February 22, 1925, that he died on February 2, 1972 at the age of 46, that he was married to [Claimant’s maiden name], and the cause of death was cardiorespiratory arrest due to massive gastrointestinal bleeding and metastatic adenocarcinoma of the left kidney.  [Claimant]‘s marriage certificate showed that [Employee] and [Claimant’s maiden name] married on October 1, 1939.

On September 10, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of his employment at the Rocky Flats Plant.  On October 2, 2006, FAB issued a final decision denying the claim under Part B of EEOICPA for survivor benefits on the ground that the probability of causation was only 30.40%, based on NIOSH’s dose reconstruction. 

On August 6, 2007, the Secretary of Health and Human Services (HHS) designated the following classes for addition to the Special Exposure Cohort (SEC):  employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.  The SEC designations for these classes became effective September 5, 2007.

A review of the evidence of record indicates that the employee had a period of employment aggregating at least 250 days during the SEC periods of April 1, 1952 through December 31, 1958, and January 1, 1959 through December 31, 1966, and his name appears on the report of the Neutron Dosimetry Reconstruction Project Report (NDRP).[2]  The employee was diagnosed with kidney cancer, a “specified” cancer, more than five years after his first exposure to radiation at the Rocky Flats Plant.

Based on the new designation of two classes of employees at the Rocky Flats Plant as members of the SEC, a Director’s Order was issued on December 4, 2007 that vacated the prior decision on this claim under Part B.  On December 12, 2007, the district office issued a recommended decision to accept the claim for survivor benefits under Parts B and E of EEOICPA for kidney cancer and referred the case to FAB for the issuance of a final decision. 

On December 13, 2007, FAB received [Claimant]‘s signed statement certifying that neither she nor the employee had filed any tort suits or state workers’ compensation claims, that they had not received any awards or benefits related to kidney cancer, that they had not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and the employee, at the time of his death, had no minor children or children incapable of self support, who were not [Claimant]‘s natural or adopted children.

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

FINDINGS OF FACT

1. On March 25, 2002, [Claimant] filed a claim for survivor benefits under EEOICPA. 

2. [Claimant] is the employee’s surviving spouse as supported by death and marriage certificates.

3. The employee worked for Dow Chemical, a DOE contractor, at the Rocky Flats Plant, a DOE facility, from February 25, 1963 to February 3, 1972, which is more than 250 days, and the employee’s name appears on the report of the NDRP. 

4. The employee was diagnosed with kidney cancer on January 17, 1972, which was at least five years after he first began employment at a DOE facility.

5. Based on the employee’s reported date of birth of February 22, 1925, his normal retirement age (for purposes of the Social Security Act) would have been 65.

6. Neither [Claimant] nor the employee filed a tort suit or a state workers’ compensation claim, received any awards or benefits related to kidney cancer, have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and the employee, at the time of death, had no minor children or children incapable of self support, who were not [Claimant]‘s natural or adopted children.

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

CONCLUSIONS OF LAW

A claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R  § 30.310(a) (2008).  If an objection is not raised during the 60-day period, FAB may issue a final decision accepting the district office’s recommended decision.  20 C.F.R. § 30.316(a).  On December 20, 2007, FAB received written notification from [Claimant] waiving any and all objections to the recommended decision.

As found above, the employee worked at the Rocky Flats Plant for a period of at least 250 work days, during the SEC periods of April 1, 1952 through December 31, 1958, and January 1, 1959 through December 31, 1966.  Part B of EEOICPA provides benefits for an employee diagnosed with a “specified” cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility.  Such employee is considered “a covered employee with cancer.” 

FAB concludes that the employee is a member of the SEC, and because he was diagnosed with kidney cancer, a “specified” cancer.  Therefore, FAB also concludes that the employee is a “covered employee with cancer” under Part B since he satisfies the requirements of 42 U.S.C. § 7384l(9)(A).

Under 42 U.S.C. § 7385s-4(a), it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s death.  As used in Part E, the term “covered illness” means an illness or death resulting from exposure to a toxic substance.

Pursuant to 20 C.F.R. § 30.800, years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a DOE facility may be compensable under Part E.  In this case, the evidence of record supports that employee experienced wage-loss for the years 1972 through 1990 (when he would have attained his normal Social Security retirement age); thus, additional compensation in the amount of $25,000.00 is payable in addition to the basic survivor award under Part E of $125,000.00.

[Claimant] has established that she is the surviving spouse of the employee as defined by Parts B and E of EEOICPA.  Accordingly, she is entitled to compensation under Part B in the amount of $150,000.00, as outlined in 42 U.S.C. § 7384s(a)(1).  She is also entitled to compensation under Part E in the amount of $150,000.00 pursuant to 42 U.S.C. §7385s-3(a)(2).

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 41882-2007 (Dep’t of Labor, December 21, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claim filed by [Claimant #1] is accepted under Part B and Part E of EEOICPA.  The claim filed by [Claimant #2] under Part E is denied.

STATEMENT OF THE CASE

On April 5, 2002, [Claimant #2] filed a Form EE-2 claiming for survivor benefits under EEOICPA as a surviving child of [Employee].  On February 19, 2003, [Claimant #1] filed also filed a Form EE-2 as the surviving spouse of the employee.  They both identified lung cancer as the diagnosed condition of the employee. [Claimant #2] submitted an employment history, Form EE-3, completed on October 25, 2001 by [Individual with same surname as Employee], which indicated that the employee worked for Atomics International, in the Santa Susana Hills, from 1958 to 1964, and for Gulf General Atomics in San Diego, California and Idaho Falls, Idaho, from 1964 to an unknown date.

The Department of Energy (DOE) verified that the employee worked for Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964.   General Atomics confirmed that the employee worked for General Atomics from October 19, 1964 to September 8, 1972, and that during this period the employee did some work at Gulf in Idaho Falls, Idaho.  The Idaho National Engineering & Environmental Laboratory (INEEL), in Idaho Falls, Idaho, confirmed that INEEL had dosimetry data for the employee, and that he might have worked for General Atomics during 1965, 1966 and 1967. 

The General Atomics human resources department provided documentation establishing that the employee was monitored for radiation on 9 separate occasions while working at the General Atomics facility in La Jolla, California, in the LINAC complex and the HTGR-Critical Facility, between January 20, 1967 and November 18, 1969.

As medical evidence, [Claimant #1 and Claimant #2] submitted numerous medical records, including the following:

1.      A medical report dated April 21, 1977 from B.M. Kim, M.D., which provides an assessment of primary bronchial carcinoma.

2.       A copy of a radiation oncology consultation, dated May 9, 1977, from Charles Campbell, M.D., which provides a diagnosis of bronchogenic, large cell, undifferentiated adenocarcinoma. 

In support of her claim, [Claimant #2] provided a copy of her birth certificate, indicating that she was born on March 26, 1958, and that [Employee] was her father.  She provided a copy of the employee’s death certificate, indicating that he died on August 28, 1977 at age 43, due to respiratory failure secondary to bronchogenic carcinoma, and that he was married to [Claimant #1’s maiden name] at the time of death.  [Claimant #1] submitted a copy of her marriage certificate that memorialized her marriage to [Employee] on July 1, 1972.  [Claimant #2] and [Claimant #1] provided copies of marriage certificates that document their surname changes.

On December 17, 2002, FAB issued a final decision denying the claim of [Claimant #2] under Part B of EEOICPA, as the evidence of record did not establish that the widow of the employee at the time of his death was no longer alive.

In a February 16, 2007 report to Congress, the Secretary of Health and Human Services (HHS) designated the following class of employees for addition to the Special Exposure Cohort (SEC):

Atomic Weapons Employer (AWE) employees who were monitored or should have been monitored for exposure to ionizing radiation while working at the General Atomics facility in La Jolla, California, at the following locations:  Science Laboratories A,B, and C (Building 2); Experimental Building (Building 9); Maintenance (Building 10); Service Building (Building 11); Buildings 21 and 22: Hot Cell Facility (Building 23); Waste Yard (Buildings 25 and 26); Experimental Area (Building 27 and 27-1); LINAC Complex (Building 30); HTGR-TCF (Building 31); Fusion Building (Building 33); Fusion Doublet III (Building 34); SV-A (Building 37); SV-B (Building 39); and SV-D (no building number) for a number of work days aggregating at least 250 work days from January 1, 1960 through December 31, 1969, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.

The SEC designation for this class became effective on March 18, 2007.

On July 30, 2007, the district office sent a letter to [Claimant #2] advising her of the criteria to establish that she is a “covered” child under Part E of EEOICPA and asked her to provide evidence establishing her eligibility as a covered child.  The record reflects that on September 24, 2007, [Claimant #2] advised the district office via a telephone call that she did not meet the eligibility requirements under Part E. 

On September 26, 2007, the Seattle district office issued a  recommended decision concluding that [Claimant #2] is not an eligible survivor of the employee under Part E; that the employee is a member of the SEC; that he developed lung cancer, a “specified” cancer, after beginning his employment at General Atomics; that the occupational exposure was at least as likely as not a significant factor in aggravating, contributing to, or causing the employees’ death; that [Claimant #1] is the surviving spouse of [Employee]; and that [Claimant #1] is entitled to survivor benefits under Part B of EEOICPA in the amount of $150,000.00, and under Part E in the amount of $175,000.00, for a total of $325,000.00.

The record contains [Claimant #1]‘s correspondence of October 3, 2007, advising that she never filed for, or received, any settlements or awards for the claimed condition of lung cancer, from either a civil lawsuit or a state workers’ compensation claim.  She also advised that the employee did not have any children who were not her natural or adopted children at the time of the employees’ death. 

The FAB has received separate correspondence from [Claimant #1 and Claimant #2] waiving any objections to the findings of fact or conclusions of law in the recommended decision.

Based upon a review of the evidence in the record, I make the following:

FINDINGS OF FACT

1. [Claimant #1 and Claimant #2] filed claims for benefits under EEIOCPA as the survivors of [Employee]. 

2. [Employee] worked for Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964. 

3. [Employee] was employed by General Atomics, an Atomic Weapons Employer, at their La Jolla, California facility, from October 19, 1964 to September 8, 1972.

4. During the period from January 1, 1960 through December 31, 1969, the employee worked an aggregate of at least 250 work days in buildings specified for the General Atomics SEC, where the employee was monitored or should have been monitored for exposure to ionizing radiation.

5. [Employee] was first diagnosed with lung cancer in April 1977.

6. [Claimant #1] is the surviving spouse of the employee, who died on August 28, 1977 (at the age of 43) due to respiratory failure secondary to bronchogenic carcinoma.

7. [Claimant #2] is a biological child of [Employee], and was 19 years old at the time of her father’s death.

8. There is no evidence that [Claimant #2] was a full-time student or incapable of self-support at the time of her father’s death.

Based upon a review of the aforementioned facts, FAB hereby also makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the implementing regulations provides that if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objection to all or part of the recommended decision, the FAB reviewer may issue a decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a) (2007).  Both claimants have submitted their written waivers.

The term “covered” child means a child of the employee who, at the time of the employee’s death, was:  under the age of 18 years; or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years; or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

The record establishes that [Claimant #2] was 19 years old at the time of her father’s death.  There is no evidence showing that she was a full-time student or incapable of self-support at the time of her father’s death.  Therefore, FAB concludes that [Claimant #2]‘s claim under Part E of EEOICPA must be denied because she does not meet the definition of a “covered” child set out in 42 U.S.C. § 7385s-3(d)(2). 

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

The record establishes that during the period from January 1, 1960 through December 31, 1969, the employee worked an aggregate of at least 250 work days in buildings specified for the General Atomics SEC.  The record also establishes that the employee was diagnosed with lung cancer in 1977, which is more than 2 years after beginning his employment at the General Atomics’ La Jolla, California facility.  Lung cancer is a “specified” cancer as defined by 20 C.F.R. § 30.5(ff)(2) (2007).  The employee was, therefore, a “covered employee with cancer.”  42 U.S.C. § 7384l(9). 

The record also establishes that [Claimant #1] is the surviving spouse of the employee.  As the employee’s surviving spouse, she is entitled to compensation benefits under Part B of the Act in the amount of $150,000.00, pursuant to 42 U.S.C. §§ 7384s(a) and (e)(A).

Section 7385s-4(a) of EEOICPA states that a determination under Part B that a DOE contractor employee is entitled to compensation under that part for an occupational illness shall serve as a determination under Part E that the employee contracted that illness through exposure at a DOE facility. 

In this case, FAB is basing the award of compensation to [Claimant #1] under Part B on [Employee]‘s employment at an Atomic Weapons Employer, which qualifies him as a member of the SEC.  [Employee] also had documented employment with Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964.  On September 19, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) determined that in a surviving spouse’s claim that is accepted under Part B based on the employee’s status as both an atomic weapons employee and a member of the SEC, if the employee also had any verified employment by a DOE contractor at a DOE facility, then the provisions of 42 U.S.C. § 7385s-4(a) would apply such that the spouse would be entitled to a determination under Part E that the employee’s illness was contracted through exposure to a toxic substance at the DOE facility.  Accordingly, [Claimant #1] is entitled to compensation pursuant to 42 U.S.C. §7385s-3(a)(3), since the employee would have been entitled to compensation under Part B, and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.

Therefore, the evidence of record, in conjunction with the September 19, 2007 determination by DEEOIC, establishes that the employee was diagnosed with a “covered illness,” lung cancer, as that term is defined by 42 U.S.C. § 7385s(2), and that the employee contracted that “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The FAB concludes that the evidence of record is also sufficient to establish that the employee’s lung cancer was a significant factor in aggravating, contributing to, or causing his death.  The death certificate, signed by a physician, lists the cause of death as being due to or as a consequence of bronchogenic carcinoma (lung cancer), which is the accepted condition under Part B of EEOICPA.  The record also indicates that there was an aggregate of not less than 20 years between the employee’s death and his normal retirement age (for purposes of the Social Security Act).

Accordingly, [Claimant #1] is entitled to compensation under Part E in the amount of $175,000.00 as a covered spouse, pursuant to 42 U.S.C. §7385s-3(a)(3), for a total lump-sum award in the amount of $325,000.00. 

Washington, D.C.

Susan Price 

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 47148-2006 (Dep’t of Labor, May 16, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, FAB accepts the claim under Part B of EEOICPA in the amount of $150,000.00 and under Part E in the amount of $125,000.00.  Adjudication of the claim for survivor benefits for the conditions of diabetes and hypertension under Part E will not be undertaken, as maximum survivor benefits are being awarded. 

STATEMENT OF THE CASE

On July 15, 2003, [Claimant] filed a Form EE-2 claiming for survivor benefits under EEOICPA with the Department of Labor as the surviving spouse of [Employee].  She based her claim on the employee’s metastatic renal cell carcinoma.  On December 28, 2006, [Claimant] filed a second Form EE-2 for the conditions of renal cell carcinoma, diabetes, and hypertension. 

[Claimant] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Lawrence Livermore National Laboratory (LLNL) as a designer from June 19, 1956 to March 2, 2000.  The district office used the Oak Ridge Institute for Science and Education (ORISE) database to verify that [Employee] worked at LLNL from June 19, 1956 to March 2, 2000.  The Department of Energy (DOE) verified that [Employee] was employed by the University of California Radiation Laboratory (UCRL) at LLNL beginning on June 19, 1956, and that he had dosimetry badges issued in association with his work with UCRL/LLNL at the Nevada Test Site (NTS) on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973.  Employment records obtained from DOE indicate that [Employee] was employed as a draftsman and designer at LLNL.

The record includes a copy of a marriage certificate showing [Claimant] and the employee were married on May 18, 1963, and a copy of [Employee]‘s death certificate showing [Claimant] was married to the employee at the time of his death on March 2, 2000.  The death certificate identifies the immediate cause of death as respiratory failure and metastatic renal cell carcinoma, with diabetes mellitus, hypertension and hyperlipidemia listed as conditions that contributed to his death.  The medical evidence of record includes a November 16, 1999 pathology report in which Dr. Lena Scherba diagnosed metastatic renal cell carcinoma with metastases to the left pleura. 

On March 15, 2006, FAB issued a final decision under Part B to deny [Claimant]‘s claim for benefits, concluding that the employee’s renal cell carcinoma was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at LLNL.  On March 20, 2007, the Seattle district office issued a recommended decision to deny [Claimant]‘s claim for benefits under Part E of the Act.  The district office concluded that she did not provide sufficient evidence to show that toxic exposure at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to or causing the employee’s metastatic renal cell carcinoma. 

On March 29, 2007, the National Institute for Occupational Safety and Health (NIOSH) issued OCAS-PEP-012, entitled “Program Evaluation Plan:  Evaluation of Highly Insoluble Plutonium Compounds.”  The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites, and specifically concluded that the existence of highly insoluble plutonium at LLNL should be considered for Type Super S plutonium in the dose reconstruction.  This change went into effect on February 6, 2007 and affected those cases with a dose reconstruction performed prior to that date that resulted in a less than 50% Probability of Causation (PoC) with verified employment at LLNL.

On June 18, 2007, FAB remanded [Claimant]‘s Part E claim for survivor benefits and instructed the district office to refer the case to NIOSH for rework of the dose reconstruction pursuant to EEOICPA Bulletin No. 07-19 (issued May 16, 2007), which determined that the existence of the highly insoluble plutonium at LLNL should be considered for Type Super S plutonium in the dose reconstruction.

On June 26, 2007, the Seattle district office returned the claim to NIOSH for a rework of the dose reconstruction.  On October 23, 2007, the district office received the NIOSH Report of Dose Reconstruction dated September 19, 2007.  Using the information provided in this report, the district office utilized the Interactive Radio Epidemiological Program (IREP) to determine the PoC of the employee’s renal cell carcinoma and reported in its recommended decision that there was a 26.76% probability that the employee’s metastatic renal cell carcinoma was caused by exposure to radiation at LLNL.

On November 9, 2007, a Director’s Order was issued vacating the final decision dated March 15, 2006, and reopening [Claimant]‘s claim under Part B of EEOICPA.  The Director’s Order directed the district office to reopen her claim under Part B based on EEOICPA Bulletin No. 07-27 (issued August 7, 2007) to reflect the revised dose reconstruction methodology to the calculation of the PoC and provided procedures for processing claims with a final decision to deny that may be affected by NIOSH’s OCAS-PEP-012.    

On February 7, 2008, the Seattle district office recommended denial of [Claimant]‘s claim for survivor benefits under Part B and Part E, finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the LLNL.  The district office concluded that the employee did not qualify as a “covered employee with cancer” under Part B; that the dose reconstruction estimates and the PoC calculations were properly performed, and that [Claimant] was not entitled to survivor benefits under Part B.  Further, the district office concluded that under Part E, the totality of the evidence did not provide sufficient evidence to show that exposure to a toxic substance at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to or causing the claimed conditions of renal cell carcinoma, diabetes or hypertension.

In a letter received by FAB on May 15, 2008, [Claimant] indicated that neither she nor [Employee] had filed a lawsuit or received a settlement based on the claimed conditions.  She also indicated that they had never filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to the claimed illnesses, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  Further, she indicated that [Employee] had no minor children or children incapable of self-support, who were not her natural or adopted children, at the time of his death.  

On March 3, 2008, the Secretary of Health and Human Services (HHS) designated the following class of employees for addition to the Special Exposure Cohort (SEC) in a report to Congress: Employees of DOE, its predecessor agencies and DOE contractors or subcontractors who were monitored for radiation exposure while working at LLNL from January 1, 1950 through December 31, 1973 for a number of work days aggregating at least 250 work days or in combination with work days within the parameters established for one or more other classes of employees in the SEC.  This addition to the SEC became effective April 2, 2008.

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

FINDINGS OF FACT

1.      On July 15, 2003 and December 28, 2006, [Claimant] filed a claim for benefits under EEOICPA.

2.      [Claimant] is the surviving spouse of the employee and was married to him for at least one year immediately prior to his death.

3.      The employee worked at LLNL for an aggregate of at least 250 work days from June 19, 1956 to March 2, 2000, and was issued visitor dosimetry badges at the NTS on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973.  The employee was monitored for radiation exposure, and qualifies as a member of the SEC.

4.      The employee was diagnosed with metastatic renal cell carcinoma, which is a “specified” cancer, on November 16, 1999, after starting work at a DOE facility.   

5.      The evidence of record supports a causal connection between the employee’s death due to metastatic renal cell carcinoma and his exposure to radiation and/or a toxic substance at a DOE facility.

6.      [Claimant] has not filed or received any money (settlement, compensation, benefits, etc.) from a tort action or from a state workers’ compensation program based on the claimed condition. She has never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any federal or state workers’ compensation law.  The employee had no minor children or children incapable of self-support, who were not [Claimant]‘s natural or adopted children, at the time of his death.

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

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the district office on February 7, 2008.  [Claimant] has not filed any objections to the recommended decision, and the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).    

As noted above, on April 2, 2008 a new addition to the SEC became effective.  The evidence of record indicates that the employee worked in covered employment at LLNL from June 19, 1956 to March 2, 2000, that he was issued visitor dosimetry badges at the NTS on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973, and that he was monitored for radiation exposure during his employment.  The medical evidence shows that [Employee] was diagnosed with metastatic renal cell carcinoma on November 16, 1999, more than 5 years after his initial exposure to radiation. 

FAB may reverse a recommended decision to deny a claim if the portion of the claim denied by the district office is in posture for acceptance.  The evidence is sufficient to establish that the employee is a member of the class added to the SEC who was diagnosed with metastatic renal cell carcinoma, a “specified” cancer, more than five years after initial exposure, and is therefore a “covered employee with cancer” under section 7384l(9)(A) of EEOICPA.  Further, [Claimant] is the surviving spouse of the employee, as defined by § 7384s(e)(1)(A), and is entitled to compensation in the amount of $150,000.00 under Part B.

Under § 7385s-4(a) of EEOICPA, if an employee has engaged in covered employment at a DOE facility and was determined under Part B to have contracted an “occupational” illness, the employee is presumed to have contracted a covered illness through exposure at that facility.  Further, if the employee would have been entitled to compensation under Part E and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee, an eligible survivor would be entitled to survivor benefits under Part E..  See 42 U.S.C. § 7385s-3(1)(A) and (B).

The evidence of record establishes that the employee was a “covered DOE contractor employee” who was diagnosed with a “covered” illness, and therefore he would be eligible for benefits under Part E.  Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  [Claimant] is the employee’s “covered” spouse as defined by § 7385s-3(d)(1) and is therefore entitled to additional compensation in the amount of $125,000.00 under Part E.      

Accordingly, FAB reverses the recommended decision and accepts the claim for survivor benefits under Part B of $150,000.00, and also under Part E for an additional $125,000.00.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 50784-2007 (Dep’t of Labor, November 22, 2006)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the FAB accepts and approves your claim for compensation in the amount of $150,000.00 under Part B and $125,000.00 under Part E, as well as medical benefits under Part B and E.

STATEMENT OF THE CASE

On October 28, 2002, [Employee] filed a Form EE-1 (Claim for Benefits under the EEOICPA) with the Department of Labor (DOL), based on the condition of hepatocellular carcinoma (liver cancer).  He submitted medical evidence, including a pathology report dated July 22, 2002, indicating a diagnosis of well-differentiated hepatocellular carcinoma. 

[Employee] also submitted a Form EE-3 indicating that he worked at the Nevada Test Site (NTS) for EG&G from June 1956 to an unspecified date in 1965, and at the Pacific Proving Grounds (PPG) from April 1958 to July 1958.  A representative of the Department of Energy (DOE) verified that the employee worked at the NTS for EG&G from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962; and at the PPG from May 1, 1958 to June 30, 1962; and at the NTS with EG&G from March 21, 1963 to May 1, 1963; from November 13, 1963 to November 26, 1963; from February 10, 1964 to February 10, 1964; May 5, 1964 to May 5, 1964; from August 11, 1964 to August 11, 1964; from November 3, 1964 to November 3, 1964; from January 21, 1965 to May 11, 1965; from July 21, 1965 to July 21, 1965; and from October 12, 1965 to October 12, 1965.  [Employee] died on May 31, 2003, and his claim was administratively closed.

On October 21, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) as the surviving spouse of the employee, based on the condition of liver cancer.  The record includes a copy of your marriage certificate showing you and the employee were married on September 27, 1996, and a copy of your spouse’s death certificate showing you were married to the employee at the time of his death on May 31, 2003.  The death certificate identifies the immediate cause of death as renal failure, liver failure and hepatocellular carcinoma. 

On November 10, 2003, the Seattle district office referred the case to the National Institute for Occupational Safety and Health to determine whether the employee’s lung cancer was “at least as likely as not” related to his covered employment.  However, the case was returned on July 26, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS), of certain NTS employees as an addition to the Special Exposure Cohort (SEC).

On October 26, 2006, the Seattle district office issued a recommended decision to accept your claim based on the condition of liver cancer.  The district office concluded that under Part B, the employee is a member of the SEC, and he was diagnosed with liver cancer which is a specified cancer under the Act.  The district office further concluded that a determination that a DOE contractor employee is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  The district office also concluded that you are the surviving spouse of the employee, and you are entitled to compensation in the amount of $150,000.00 under Part B, and $125,000.00 under Part E, for a total amount of $275,000.00.  Further, the district office concluded that you are entitled to reimbursement of [Employee]‘s medical expenses under Part B and E, from October 28, 2002 (the date he filed his claim) until his date of death. 

The evidence of record also includes a letter you signed on October 20, 2006, in which you indicated that neither you nor your spouse have filed a lawsuit or received a settlement based on the claimed exposure to radiation.  You also indicated that you and your spouse have never filed for or received any payments, awards or benefits from a state workers’ compensation claim for the claimed illness, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  Further, you indicated that your spouse had no minor children or children incapable of self-support who were not your natural or adopted children at the time of his death.  

On October 30, 2006, the FAB received written notification from you indicating that you waived all rights to file objections to the findings of fact and conclusions of law in the recommended decision.  After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

1.         On October 28, 2002, [Employee] filed a claim for benefits under EEOICPA.   [Employee] died on May 31, 2003, and his claim was administratively closed.

2.         On October 21, 2003, you filed a claim for survivor benefits under EEOICPA.

3.         You are the surviving spouse of the employee.

4.         The employee worked at the NTS, a covered DOE facility, for an aggregate of 250 work days, from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962; and at the PPG from May 1, 1958 to June 30, 1962; and at the NTS with EG&G from March 21, 1963 to May 1, 1963; from November 13, 1963 to November 26, 1963; from February 10, 1964 to February 10, 1964; from May 5, 1964 to May 5, 1964; from August 11, 1964 to August 11, 1964; from November 3, 1964 to November 3, 1964; from January 21, 1965 to May 11, 1965; from July 21, 1965 to July 21, 1965; and from October 12, 1965 to October 12, 1965.   This employment qualifies [Employee] as a member of the SEC.

5.         The employee was diagnosed with hepatocellular carcinoma (liver cancer), which is a specified cancer, on July 22, 2002, after starting work at a DOE facility.   

6.         The evidence of record supports a causal connection between the employee’s death due to renal failure, liver failure and hepatocellular carcinoma and his exposure to radiation at a DOE facility. 

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  You waived your right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on your claim for compensation benefits under EEOICPA.   

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the NTS from January 27, 1951 through December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.  This addition to the SEC became effective July 26, 2006. 

The employment evidence is sufficient to establish that the employee was employed at the NTS for an aggregate of at least 250 work days of covered SEC employment, as he worked from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962. 

The employee was a member of the NTS addition to the SEC pursuant to § 7384l(14) of the Act, who was diagnosed with liver cancer, which is a specified cancer under § 7384l(17)(A) of the Act, and is therefore a “covered employee with cancer” under § 7384l(9)(A) of the Act.  See 42 U.S.C. §§ 7384l(14), 7384l(17)(A) and 7384l(9)(A).  Further, you are the surviving spouse of the employee under § 7384s(e)(1)(A) and you are entitled to compensation in the amount of $150,000.00.  42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a)(2).

The determination that a DOE contractor employee is entitled to compensation under Part B is treated for purposes of Part E that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a). 

The evidence of record establishes that the employee was a “covered DOE contractor employee” as defined by § 7385s(1) in accordance with § 7385s-4(a); and the employee was diagnosed with a “covered illness,” liver cancer, as defined by § 7385s(2).  Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  You are the employee’s covered spouse as defined by § 7385s-3(d)(1) and you are entitled to compensation in the amount of $125,000.00 pursuant to § 7385s-3(a)(1).  See 42 U.S.C. §§ 7385s(1), 7385s(2), 7385s-4(a), 7385s-3(d)(1) and 7385s-3(a)(1).      

Accordingly, you are entitled to compensation in the total amount of $275,000.00.

In addition, you are entitled to medical benefits related to the employee’s cancer under Parts B and E of EEOICPA, retroactive to the employee’s application date of October 28, 2002, and up to May 31, 2003, the date the employee died.  See 42 U.S.C. §§ 7384s(b) and 7385s-8.

Seattle, Washington

Kelly Lindief, Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 72816-2007 (Dep’t of Labor, April 7, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the recommended decision to deny the claims is reversed and both claims for survivor benefits under Part B of EEOICPA are accepted. 

STATEMENT OF THE CASE

On October 11, 2005, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA as the children of [Employee], hereinafter referred to as the employee.  [Claimant #1 and Claimant #2] identified gall bladder and skin cancers and gastrointestinal hemorrhage as the claimed conditions for the employee.  On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not covered children as defined under Part E of EEOICPA.  Therefore, their claims for survivor benefits under Part E were denied.

[Claimant #1] stated on the Form EE-3 that the employee was employed as a carpenter at the Nevada Test Site[1] from 1940 to 1961.  The Department of Energy (DOE) verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953, and from April 30, 1957 to July 19, 1957 at the Nevada Test Site. 

[Claimant #1 and Claimant #2] submitted a death certificate, which indicated the employee died on February 5, 1987, that the cause of death was gastrointestinal hemorrhage, and that he was widowed at the time of his death.  A death certificate for [Employee’s Child], father’s name was [Employee], was submitted.  [Claimant #1] submitted a birth certificate, which indicated the employee was her father.  A birth certificate for [Claimant #2] indicated the employee was his father.  An Order for Name Change dated May 16, 1979 indicated that [Claimant #2]‘s name was changed to [Claimant #2].

A March 10, 1987 autopsy report, from Drs. Stephen Ovanessoff and Roy I. Davis, indicated a final autopsy diagnosis of hepatocellular carcinoma with direct invasion of the gallbladder.

To determine the probability of whether the employee sustained his cancer in the performance of duty, the district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  The dose reconstruction was based on the periods of employment at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957.  On July 3, 2007 and August 12, 2007, respectively, [Claimant #1 and Claimant #2] signed Form OCAS-1 indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information that they provided to NIOSH.

The district office received the final NIOSH Report of Dose Reconstruction dated August 24, 2007.  The district office used the information provided in this report to determine that there was a 15.57% probability that the employee’s liver cancer was caused by radiation exposure at the Nevada Test Site.

On August 31, 2007, the Seattle district office issued a recommended decision finding that the employee’s cancer was not “at least as likely as not” caused by employment at the Nevada Test Site.  Therefore, the district office concluded that [Claimant #1 and Claimant #2] were not entitled to compensation under Part B of EEOICPA.

OBJECTIONS

On October 10, 2007, FAB received [Claimant #2]‘s October 10, 2007 objection to the recommended decision and request for an oral hearing.  On January 8, 2008, a hearing was held to hear the objections of [Claimant #1 and Claimant #2].  However, the equipment to record the hearing malfunctioned and another hearing was held by telephone on February 20, 2008. 

During the January 8, 2008 hearing, [Claimant #2] submitted a four-page letter in support of his objections.  This letter was read at both the January 8, 2008 and February 20, 2008 hearings.  One of his objections was regarding the finding that [Claimant #1 and Claimant #2] were not “covered” children as that term is defined under Part E of EEOICPA.  With reference to this objection, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E.  Therefore, their claims for survivor benefits under Part E were denied.  After FAB has issued a final decision pursuant to 20 C.F.R. § 30.316, only the Director for Division of Energy Employees Occupational Illness Compensation may reopen a claim and return it to FAB for issuance of new decision.  20 C.F.R. § 30.320.  There is no intervening Director’s Order regarding [Claimant #1 and Claimant #2]‘s claims for survivor benefits under Part E of EEOICPA.  Therefore, no new final decision will be issued on their claims for benefits under Part E.

During the February 20, 2008 hearing, [Claimant #1] indicated that the employee lived on site during his employment at the Nevada Test Site.  In support of this statement, she indicated that the employee “made a custom or habit of staying at a camp site near his work place if the distance was too far to travel.”  In addition, she indicated that the employee had an old truck and that it was always breaking down.

Effective July 26, 2006, the Secretary of Health and Human Services designated certain employees of the Nevada Test Site in Mercury, Nevada as members of the Special Exposure Cohort (SEC), who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, based on work performed for the period from January 27, 1951 to December 31, 1962.

As noted above, DOE verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957 at the Nevada Test Site.  However, in a review of records from DOE a Personnel Action Slip from Reynolds Electrical and Engineering was found that indicated a date of hire of April 3, 1957.  A July 19, 1957 Radiation Exposure memo indicated that the employee was exposed to radiation from April 3, 1957 to June 30, 1957.  Based upon the foregoing information, the correct periods of employment are March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.  In addition, the following documents were submitted by DOE:

1. A March 12, 1953 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
2. A May 3, 1957 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
3. A June 17, 1957 accident report indicated a mailing address in Mercury, Nevada.

Pursuant to EEOICPA Bulletin No. 06-16 (issued September 12, 2006), if the employee was present (either worked or lived) on site at the Nevada Test Site for a 24-hour period in a day, the claims examiner is to credit the employee with the equivalent of three (8-hour) work days.  If there is evidence that the employee was present on site at the Nevada Test Site for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement for the SEC.  In addition, the Nevada Test Site includes the town of Mercury, which is located in the southwest corner of the site.  

The preponderance of evidence of record establishes that the employee lived and worked at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.  These periods represent a total of 101 work days.  Crediting the employee with three days of exposure for each day worked, the employee would have had 303 days of exposure during the periods from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.

There were other objections to the denial of survivor benefits under Part B of EEOICPA; however, they are not being addressed because the evidence of record is sufficient to accept [Claimant #1 and Claimant #2]‘s claims for survivor benefits under Part B of EEOICPA.

On their claims for survivor benefits, [Claimant #1 and Claimant #2] indicated that neither they nor the employee had filed any lawsuits or received any settlements or awards for the employee’s claimed condition.  In addition, [Claimant #1 and Claimant #2] indicated that there are no other living children of the employee.

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

FINDINGS OF FACT

1. [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA.

2. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E of EEOICPA. 

3. The employee was employed and lived at the Nevada Test Site for at least 250 workdays, by Reynolds Electrical and Engineering, from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957. 

4. The employee was first diagnosed liver cancer on February 5, 1987.

5.  The employee was widowed on his February 5, 1987 date of death.

6. [Claimant #1 and Claimant #2] are the surviving children of the employee.

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

CONCLUSIONS OF LAW

Section 30.316(b) of the EEOICPA regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.”  20 C.F.R. § 30.316(b).  The undersigned has reviewed the record, including [Claimant #1 and Claimant #2]‘s objections, and concludes that no further investigation is warranted.

On July 12, 2006, the Secretary of Health and Human Services designated the following class of employees as an addition to the SEC:  “Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site in Mercury, Nevada from January 27, 1951 to December 31, 1962 and who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.”  This designation became effective July 26, 2006.  See 71 Fed. Reg. 44298 (August 4, 2006).

The evidence of record supports that the employee worked for a DOE contractor and lived at the Nevada Test Site in excess of 250 workdays from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957, which is during the relevant period of the SEC class.  This employment qualifies him for inclusion within the SEC.  As a member of the SEC who was diagnosed with liver cancer, which is a “specified cancer” pursuant to 20 C.F.R. § 30.5(ff) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), he meets the definition of a “covered employee with cancer.”  42 U.S.C. § 7384l(9).  [Claimant #1 and Claimant #2] are the employee’s only eligible surviving beneficiaries, as defined at 42 U.S.C. § 7384s(e)(1)(B).  As an eligible survivor of a “covered employee with cancer, I conclude that their claims for survivor benefits should be accepted and that [Claimant #1 and Claimant #2] are each entitled to $75,000.00 for a total of $150,000.00 in compensation benefits under Part B of EEOICPA.  

Washington, DC          

Tom Daugherty

Hearing Representative

Final Adjudication Branch

[1] The Nevada Test Site is a DOE facility from 1951 to present according to the DOE Facility List (http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/findfacility.cfm).

EEOICPA Fin. Dec. No. 75271-2007 (Dep’t of Labor, August 29, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the claimants’ claims for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, FAB accepts and approves the claims for compensation under Part B of EEOICPA.  

STATEMENT OF THE CASE

On January 26, 2006, the claimants each filed a Form EE-2 claiming for survivor benefits under EEOICPA as surviving children of [Employee], based on the condition of chondrosarcoma (bone cancer).   They submitted a copy of [Employee]‘s death certificate, which indicates his marital status was “divorced” at the time of his death on January 29, 2002 due to chondrosarcoma with lung metastases.  They also provided copies of their birth certificates showing that they are children of [Employee].  [Claimant #1] also provided copies of her marriage certificates documenting her changes of name.

[Claimant #1 and Claimant #2] submitted medical evidence including a pathology report showing [Employee] had a diagnosis of metastatic high grade chondrosarcoma on December 19, 2001. 

A representative of the Department of Energy (DOE) verified that [Employee] was employed by the U.S. Geological Survey (USGS) at the Grand Junction Field Office from August 8, 1951 to March 8, 1978, and stated that he was issued dosimetry badges associated with USGS at the Nevada Test Site on 66 separate occasions between November 5, 1958 and July 11, 1966.  Additionally, other official government records including security clearances, applications for federal employment, and personnel actions were submitted, indicating that [Employee] was employed by USGS and resided in Mercury, Nevada from September 25, 1958 to June 11, 1962.   Mercury, Nevada was a town that was within the perimeter of the Nevada Test Site and housed those who worked at the site.

On May 18, 2007, the Seattle district office issued a recommended decision to accept [Claimant #1 and Claimant #2]‘s claims based on the employee’s condition of chondrosarcoma.  The district office concluded that the employee was a member of the Special Exposure Cohort (SEC), and was diagnosed with chondrosarcoma (bone cancer), which is a “specified” cancer under EEOICPA.  The district office therefore concluded that [Claimant #1 and Claimant #2] were entitled to compensation in equal shares in the total amount of $150,000.00 under Part B. 

The evidence of record includes letters received by FAB on May 23 and June 1, 2007, signed by [Claimant #2 and Claimant #1, respectively, whereby they both indicated that they have never filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim, or state workers’ compensation program, based on the employee’s condition.  Further, they confirmed that they have never pled guilty to or been convicted of fraud in connection with an application for, or receipt of, federal or state workers’ compensation.   

On May 26 and June 6, 2007, FAB received written notification from [Claimant #2 and Claimant #1], respectively, indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision. 

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

FINDINGS OF FACT

1.      On January 26, 2006, [Claimant #1 and Claimant #2] filed claims for survivor benefits under EEOICPA.

2.      [Claimant #1 and Claimant #2] provided sufficient documentation establishing that they are the eligible surviving children of [Employee].

3.      A representative of DOE verified that [Employee] was issued dosimetry badges for his employment at the Nevada Test Site, a covered DOE facility, in association with USGS, a DOE contractor, from November 5, 1958 to July 11, 1966. 

4.      [Employee] was diagnosed with chondrosarcoma (bone cancer), which is a “specified” cancer under EEOICPA, on December 19, 2001, after beginning employment at a DOE facility.   

5.      The evidence of record supports a causal connection between the employee’s cancer and his exposure to radiation and/or a toxic substance at a DOE facility while employed in covered employment under EEOICPA. 

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  [Claimant #1 and Claimant #2] waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims for survivor benefits under EEOICPA.   

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC:  DOE employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site between January 27, 1951 and December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.  This addition to the SEC became effective July 26, 2006.

The employment evidence in this case is sufficient to establish that the employee was present at the Nevada Test Site for an aggregate of at least 250 work days, from September 1958 through at least November 2, 1962, and qualifies him as a member of the SEC.  However, for this employment to be considered covered employment, it must also be determined that the employee was employed at a DOE facility by DOE, a DOE contractor, subcontractor or vendor.  In this regard, the case was referred to the Branch of Policies, Regulations and Procedures (BPRP) for review and determination.

In its written determination dated August 6, 2007, BPRP indicated that a civilian employee of a state or federal government agency can be considered a “DOE contractor employee” if the government agency employing that individual is:  (1) found to have entered into a contract with DOE for the accomplishment of services it was not statutorily obligated to perform; and (2) DOE compensated that agency for that activity. See EEOICPA Bulletin No. 03-26 (issued June 3, 2003).   BPRP evaluated the evidence of record including the following pertinent documents:

• An October 5, 1956 letter from the Acting Director for USGS to the Director of Finance of the AEC’s Albuquerque Operations Office, which states:

In accordance with an agreement between our respective agencies, an advance of funds $56,400 is requested to finance the 1957 fiscal year program to be performed by the Geological Survey for the Division of Military Application (DMA).[1]

• AEC Staff Paper 944/33.  This September 1957 document shows clearly that it was the AEC’s DMA that had oversight over the USGS geological work at the NTS.

• A document dated March 23, 1959, from the United States Department of the Interior Geological Survey summarizing a letter to the AEC Albuquerque Operations Office.  The summary states in part:

Advised that your draft rewrite of Memorandum of Understanding No. AT(29-2)-474, has been reviewed and is acceptable to the GS except for following changes in Article IV, Budgeting & Finance.  Also request that the amount available for NTS work in fiscal year 1959 be increased from $750,000 to 837,000 and that available for the GNOME program be increased from $85,000 to $91,000.

• A June 26, 1959 letter from the Director of USGS to [Employee], complimenting him on his efforts at the NTS and forwarding to him a letter from the AEC’s Albuquerque Operations Office in which the AEC provides general compliments to USGS for their work at NTS during 1958.

• A technical report entitled, “A Summary Interpretation of Geologic, Hydrologic, and Geophysical Data for Yucca Valley, Nevada Test Site, Nye County, NV,” detailing the work and outcome of  the work performed by USGS at the Nevada Test Site.  The report states that the work was undertaken at the behest of the AEC and also states, “Compilation of data, preparation of illustration, and writing of the report were completed during the period of December 26, 1958 to January 10, 1959.  Some of the general conclusions must be considered as tentative until more data are available.”

• Correspondence from 1957 between USGS and the AEC Raw Materials Division (not the Division of Military Application).  These letters show that USGS provided assistance to the AEC in prospecting for uranium on the Colorado Plateau and other locations. 

These documents clearly show that there was an agreement for payment, by which USGS performed work for the AEC at the Nevada Test Site.

BPRP then turned to the final issue to be addressed, which was whether the work performed by  USGS at the Nevada Test Site was work that USGS was not statutorily obligated to perform.  A review of the USGS website[2] showed that since being founded in 1879, its statutory obligations have changed.  Primarily, its function has been topographical mapping and gathering information pertaining to soil and water resources.  Also, with advances in science, USGS has similarly evolved to meet these changes.  The USGS website makes it clear that in the post-war era, USGS was grappling to keep up its scientific pace and that it did so, in part, with money from the Defense Department, the AEC, and from the states.  Further, BPRP noted that since the formation of USGS, legislation has changed its statutory obligations over the years, whereby seven legal changes to the USGS statutory obligations pertain in some way to DOE or its predecessor agencies.  These changes include:  geothermal energy; gathering information on energy and mineral potential; geological mapping of potential nuclear reactor sites and geothermal mapping; working with the Energy Research and Development Administration, a DOE predecessor, on coal hydrology; consulting with DOE on locating a suitable geological repository for the storage of high-level radioactive waste and a retrievable storage option; monitoring the domestic uranium industry; and to cooperate with DOE and other federal agencies on “continental scientific drilling”.   

Today, USGS describes itself in the following manner:

As the Nation’s largest water, earth, and biological science and civilian mapping agency, the U.S. Geological Survey (USGS) collects, monitors, analyzes, and provides scientific understanding about natural resource conditions, issues, and problems.  The diversity of our scientific expertise enables us to carry out large-scale, multi-disciplinary investigations and provide impartial scientific information to resource managers, planners, and other customers.

As described, while providing geological support to DOE may be part of what USGS is statutorily obligated to perform in 2007, the totality of the evidence suggests this was not always true.  Therefore, BPRP concluded that the Memorandum of Understanding between USGS and the AEC constituted a contract by which USGS provided services to the AEC that USGS was not statutorily obligated to perform through at least 1961, the last year of which their analysis pertained.

In considering the above analysis and determination, FAB concludes that [Employee] is a member of the SEC and was diagnosed with chondrosarcoma, which is a “specified” cancer (bone), and is, therefore, a “covered employee with cancer.”  See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A).  [Claimant #1 and Claimant #2] are the eligible survivors of [Employee] as defined under EEOICPA, and are entitled to equal shares of the total compensation amount of $150,000.00.  See 42 U.S.C. §§ 7384s(e) and 7384s(a)(1).

Accordingly, [Claimant #1 and Claimant #2] are each entitled to compensation in the amount of $75,000.00.

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 55286-2006 (Dep’t of Labor, August 22, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the FAB accepts the claims of [Claimant #1], [Claimant #2], and [Claimant #3] for compensation under Part B of EEOICPA in the amount of $150,000.00 ($50,000.00 payable to each) for the employee’s occupational illness of prostate cancer metastasized to the bone.

STATEMENT OF THE CASE

On September 20, 2002, [Employee’s spouse] filed a Form EE-2 with the Division of Energy Employees Occupational Illness Compensation (DEEOIC) and a Form DOE F 350.3 with the Department of Energy (DOE), seeking benefits as the surviving spouse of [Employee].  [Employee’s spouse] identified the claimed conditions of prostate cancer and bone cancer.  On May 8, 2003, [Employee’s spouse] died and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

[Claimant #1] (on March 10, 2004), [Claimant #2] (on April 5, 2004), and [Claimant #3] (on April 5, 2004) each submitted a Form EE-2 with DEEOIC as the surviving children of [Employee].  They claimed [Employee] developed prostate cancer and bone cancer as a result of his employment at the Hanford site.  

[Employee’s spouse] had submitted a Form EE-3 in which she alleged that [Employee] was employed at the Hanford site as a truck driver with E.I. DuPont Nemours & Company (Du Pont) from December 1943 to December 1944, with General Electric Company (GE) as a millwright from July 6, 1954 to January 3, 1965, and as a millwright with Battelle-Northwest (Battelle) at the Pacific Northwest National Laboratory (PNNL) from January 4, 1965 to July 8, 1983.  A representative of DOE verified that [Employee] was employed at the Hanford site, a DOE facility, by DuPont, a DOE contractor, from December 14, 1943 to December, 1944, and by GE, another DOE contractor, as a millwright from July 6, 1954 to December 31, 1964, and with Battelle at PNNL, a second DOE facility, from January 4, 1965 to July 29, 1983.  The Oak Ridge Institute for Science and Education (ORISE) database contained information verifying that [Employee] was employed at the Hanford site starting on July 6, 1954.  DOE records establish that [Employee] had worked in Area 200 West during his employment at the Hanford site.

The medical evidence of record includes a pathology report, dated October 3, 1988, in which Dr. Thomas D. Mahony diagnosed prostate cancer.  The medical evidence of record also includes a whole body bone scan conducted on September 27, 1988, which noted the metastases of the prostate cancer to the bone of the skull, ribs, thoracic vertebra, pelvis and right femur.

The evidence of record includes a copy of the employee’s death certificate, which indicates that [Employee] was married at the time of his death on October 4, 1991 to [Employee’s spouse].  You also submitted a copy of [Employee’s spouse]‘s death certificate.  [Employee]‘s death certificate lists the cause of his death on October 4, 1991 as arrhythmia due to myocardial infarction, coronary heart disease, and cancer of the prostate metastases.  In support of your claims, you each submitted a copy of your birth certificate showing that you are the biological children of [Employee] and that [Claimant #1] was born on May 26, 1957, [Claimant #2] was born on October 4, 1941, and that [Claimant #3] was born on March 3, 1950.  At the time of the employee’s death on October 4, 1991, [Claimant #1] was 34 years old, [Claimant #2] was 50 years old, and [Claimant #3] was 41years old.  [Claimant #1] produced sufficient evidence to show the change in her surname.  

To determine the probability that [Employee]‘s prostate cancer was sustained in the performance of duty, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  In a prior final decision dated May 8, 2006, the FAB denied the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] because there was only a 24.78% probability that the employee’s prostate cancer was caused by radiation exposure at the Hanford site.  The FAB concluded that [Employee] did not qualify as a covered employee with cancer under Part B, that the dose reconstruction estimates and the probability of causation calculations were performed according to EEOICPA and its regulations, and that [Claimant #1], [Claimant #2], and [Claimant #3] were not entitled to survivor benefits under Part B of EEOICPA.   

On March 29, 2007, NIOSH issued OCAS-PEP-012 Rev-00, entitled “Program Evaluation Plan:  Evaluation of Highly Insoluble Plutonium Compounds.”  It was NIOSH’s determination that the existence of the highly insoluble plutonium compound at the Hanford site should be considered Type Super S plutonium in dose reconstructions for employees at that site.  The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites.  The change went into effect on February 6, 2007.  See EEOICPA Bulletin No. 07-19 (issued May 16, 2007).

On April 2, 2008, a Director’s Order was issued vacating the FAB’s May 8, 2006 final decision and reopening the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] for further development.  The Director’s Order instructed the Seattle district office to forward the case to NIOSH for rework of the employee’s dose reconstruction pursuant to EEOICPA Bulletin No. 07-27 (issued August 8, 2007). 

On April 7, 2008, your claims were returned to NIOSH for rework of the employee’s radiation dose reconstruction; however the dose reconstruction was not completed following the addition of a particular class of Hanford employees to the Special Exposure Cohort (SEC).

On May 30, 2008, the Secretary of Health and Human Services (HHS) designated a class of employees at the Hanford site for inclusion in the SEC.  This designation went into effect on June 29, 2008.  The class consists of all employees of DOE, its predecessor agencies, and DOE contractors or subcontractors who worked from:  (1)  September 1, 1946 though December 31, 1961 in the 300 area; or (2) January 1, 1949 through December 31, 1968 in the 200 areas (East and West) at the Hanford Nuclear Reservation in Richland, Washington for a number of work days aggregating at least 250 work days occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC. 

On July 18, 2008, the Seattle district office recommended acceptance of your claims for survivor benefits under Part B, concluding that the employee is a member of the above-noted addition to the SEC, since he was employed at Hanford for an aggregate of 250 days or more during the SEC period and was diagnosed with prostate cancer that metastasized to the bone.  Secondary (metastatic) bone cancer is a “specified” cancer under EEOICPA.  The district office concluded that [Claimant #1], [Claimant #2], and [Claimant #3] are the surviving children of the employee and entitled to survivor benefits under Part B of the Act, in the amount of $150,000.00, to be divided equally among them in the amount of $50,000.00 each.  

On July 21, 2008, the FAB received written notification from [Claimant #2] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third-party claim or state workers’ compensation claim in relation to [Employee]‘s cancer.  [Claimant #2] stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, he averred that other than [Claimant #1] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee].  On July 21, 2008, the FAB also received [Claimant #2]‘s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

On July 22, 2008, the FAB received written notification from [Claimant #1] indicating that neither she, nor anyone in her family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]‘s cancer.  [Claimant #1] further stated that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, she averred that other than [Claimant #2] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee].  On July 22, 2008, the FAB also received [Claimant #1]‘s written notification indicating that she waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

On July 24, 2008, the FAB received written notification from [Claimant #3] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]‘s cancer.  [Claimant #3] further stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, he indicated that other than [Claimant #2] and [Claimant #1], there were no other individuals who might qualify as a survivor of [Employee].  On July 24, 2008, the FAB also received [Claimant #3]‘s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

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

FINDINGS OF FACT

1.      On September 20, 2002, [Employee’s spouse] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee].  [Employee’s spouse] died on May 8, 2003, and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

2.      [Claimant #1], [Claimant #2] and [Claimant #3] each submitted claims for survivor benefits under EEOICPA, as the surviving children of [Employee].

3.      [Claimant #1], [Claimant #2] and [Claimant #3] are the biological children of [Employee].   [Claimant #1], [Claimant #2] and [Claimant #3] are the only children and eligible survivors of the employee.

4.      The employee worked at the Hanford site, with DuPont from December 14, 1943 to December 31, 1944, with GE from July 6, 1954 to December 31, 1964, and at PNNL with Battelle from January 4, 1965 to July 29, 1983.  The employee was monitored for radiation exposures and worked in Area 200 West during his employment at the Hanford site.  This employment met or exceeded 250 aggregate work days, and qualifies [Employee] as a member of the SEC.  

5.      The employee was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis, and right femur, which is a “specified” cancer, on September 27, 1988, after starting work at a DOE facility. 

6.      [Claimant #1], [Claimant #2] and [Claimant #3] each stated that they, or anyone in their family, had never filed for or received any settlement or award from a lawsuit, tort suit, or third-party claim in relation to the illnesses claimed.  [Claimant #1], [Claimant #2] and [Claimant #3] have never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, nor have they or anyone in their family ever filed for or received any payments, awards, or benefits for a state workers’ compensation claim in relation to [Employee]‘s cancer. 

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  [Claimant #1], [Claimant #2] and [Claimant #3] waived their right to file objections to the findings of fact and conclusions of law contained in the July 18, 2008 recommended decision issued on their claims for benefits under EEOICPA.   

In order to be afforded coverage under Part B of EEOICPA, you must establish that [Employee] has been diagnosed with an occupational illness incurred as a result of his exposure to silica, beryllium, and/or radiation.  Further, the illness must have been incurred while he was in the performance of duty for DOE or certain of its contractors.  The evidence of record indicates that the employee worked in covered employment at Hanford from December 14, 1943 to December 31, 1944, and from July 6, 1954 to December 31, 1964, and at PNNL from January 4, 1965 to July 29, 1983 in Area 200 West.  The period of employment from July 6, 1954 to December 31, 1961 exceeds the 250-day requirement as set forth in the SEC designation.  The medical evidence submitted in support of the claim shows that [Employee] was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis and right femur, which is a “specified” cancer, on September 27, 1988, which was more than 5 years after his initial exposure to radiation. 

Accordingly, the employee is a member of the SEC and is a “covered employee with cancer” under § 7384l(9)(A) of EEOICPA.  See EEOICPA Bulletin No. 08-33 (issued June 30, 2008).  Further, [Claimant #1], [Claimant #2] and [Claimant #3] are the surviving children of the employee as defined by § 7384s(e)(1)(B) and are entitled to compensation in the amount of $150,000.00, to be divided equally.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 59466-2007 (Dep’t of Labor, December 15, 2006)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On July 12, 2004, you filed a claim for survivor benefits under EEOICPA, Form EE-2, and DOE F 350.3, as the surviving beneficiary of [Employee] (hereinafter referred to as the employee).  The condition you claimed the employee developed as a result of his employment at a DOE facility was lung cancer.  On Form EE-3 (Employment History), you indicated that the employee was employed from June 1, 1950 to May 31, 1986 at the Ames Laboratory, in Ames, Iowa.  You stated he worked in production maintenance.  The Department of Energy verified the employee was employed by Ames Laboratory[1] from May 15, 1951 to July 31, 1986.

In support of your claim as the eligible surviving beneficiary you submitted the employee’s death certificate that showed he died as a result of lung cancer on July 23, 1998 at the age of 76. [Employee’s wife] was noted as the surviving spouse. You submitted a marriage certificate showing [Employee’s wife] married [Employee] on August 10, 1943.  You also submitted a medical report dated November 4, 1996 that provided a diagnosis of lung cancer with metastases to the nodes, liver and adrenal.

The district office evaluated the medical evidence and determined that the claim required referral to the National Institute for Occupational Safety and Health (NIOSH) to perform a dose reconstruction.  On November 12, 2004, the district office forwarded a copy of the case file and referral summary to NIOSH to perform a dose reconstruction.

On August 8, 2006, the Secretary of HHS designated the following class for addition to the Special Exposure Cohort (SEC) in a report to Congress:

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Ames Laboratory in one or more of the following facilities/locations:  Chemistry Annex 1(also known as “the old women’s gymnasium” and “Little Ankeny”), Chemistry Annex 2, Chemistry Building (also known as “Gilman Hall”), Research Building, or the Metallurgical Building (also known as “Harley Wilhelm Hall”) from January 1, 1942 through December 31, 1954 for a number of work days aggregating at least 250 work days, or in combination with work days within the parameters (excluding aggregate work day requirements) established for one or more classes of employees in the SEC, and who were monitored or should have been monitored. 

On November 11, 2006, the Denver district office issued a recommended decision finding that the employee is a member of the SEC, that he was diagnosed with a specified cancer (lung cancer), and you are the only eligible survivor of the employee entitled to compensation in the amount of $150,000.00 under Part B of the Act.  Additionally the decision found you are entitled to an additional $125,000.00 in compensation benefits under Part E.  The case was transferred to the FAB on the same day.

After considering all evidence in the case, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for survivor benefits under EEOICPA.

2. The employee had covered employment at the Ames Laboratory from May 15, 1951 to July 31, 1986.

3. The employee was diagnosed with lung cancer, a specified cancer under the SEC provisions of the Act. 

4. The employee worked at the Ames Laboratory for more the 250 days and his cancer was diagnosed more than 5 years after his first employment exposure. 

5. The file also contains your signed statement that neither you nor the employee filed for or received any state workers’ compensation benefits or filed any lawsuits for the claimed illness or exposure to radiation.  The employee did not have any minor children or children incapable of self-support who were not recognized as your natural or adopted children at the time of his death.

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

CONCLUSIONS OF LAW

Pursuant to 20 C.F.R. § 30.316(a) of the EEOICPA regulations, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in 20 C.F.R. § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.”  20 C.F.R. § 30.316(a).  On November 22, 2006, the FAB received written notification you waiving any and all objections to the recommended decision.

On August 8, 2006, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Ames Laboratory in one or more of the following facilities/locations:  Chemistry Annex 1(also known as “the old women’s gymnasium” and “Little Ankeny”), Chemistry Annex 2, Chemistry Building (also known as “Gilman Hall”), Research Building, or the Metallurgical Building (also known as “Harley Wilhelm Hall”) from January 1, 1942 through December 31, 1954 for a number of work days aggregating at least 250 work days, or in combination with work days within the parameters (excluding aggregate work day requirements) established for one or more classes of employees in the SEC, and who were monitored or should have been monitored. 

The employee is a member of the SEC as defined by 42 U.S.C. §§ 7384l(14)(C) and 7384q  and was diagnosed with a specified cancer, lung cancer.  The employee is a “covered employee with cancer” as defined in 42 U.S.C. § 7384l(9)(A).

The FAB hereby finds the employee was a covered DOE contractor employee with a covered illness who contracted that illness through exposure at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).

You have established that you are the eligible survivor of the employee as defined by 42 U.S.C. § 7384s(e)(1)(A) and are entitled to $150,000.00.  You are also entitled to $125,000.00 under § 7385s-3(a)(1).  You are entitled to $275,000.00 in total compensation.

The evidence in the record establishes that the employee met the criteria of a covered employee with cancer.  You have established that you are the eligible survivor of the employee.  It is the decision of the FAB to accept your claim.

Denver, Colorado

Sandra Vicens-Pecenka, Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 71273-2006 (Dep’t of Labor, July 14, 2006)

NOTICE OF FINAL DECISION FOLLOWING A DIRECTOR’S ORDER

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  Your claim is approved under Part B in the amount of $150,000.00 and under Parts B and E for medical benefits. 

STATEMENT OF THE CASE

On August 18, 2005, you filed a claim (Form EE-1) for benefits under EEOICPA with the Paducah resource center.  On the EE-1, you identified cancer of the parotid gland as the diagnosed condition for which you sought compensation.  A pathology report, dated January 7, 1993, and a consultation report, dated January 18, 1993 confirm your diagnosis of adenocarcinoma of the salivary gland, left parotid.   

On the Employment History (Form EE-3), you stated that you worked at the Mallinckrodt Destrehan Street Plant (MCW)[1] from April 15, 1950 through December 1, 1989.  During your occupational history interview, you stated that you worked at MCW’s Destrehan Street Facility in the Uranium Division from 1953 through 1954 and in the Chemical Division from 1950 through 1953 then again from 1954 through 1989. 

Mallinckrodt was unable to locate your employment file, but verified your dates of employment from April 15, 1951 through November 30, 1989.  In particular, MCW verified your employment as a Section Supervisor in the Technical Banch of Mallinckrodt’s Uranium Division at the Weldon Spring Plant[2] from April 15, 1951 until 1966 and then in areas unrelated to uranium activites until your retirement from the company. 

The Oak Ridge Institue for Science and Education (ORISE) verified your employment at MCW from March 5, 1953 through February 11, 1954.  Employment and dosimetry records provided by the Department of Energy (DOE) show your employment at MCW’s Destrehan Street Facility from March 5, 1953 through February 17, 1954. 

The district office accepted your dates of employment with MCW, from April 15, 1951 through November 30, 1989, to establish that you worked at least 250 work days in the Uranium Division of Mallinckrodt’s Destrehan Street facility.  As such, and based on your diagnosis of a specified cancer, on January 3, 2006 the Denver district office issued a recommended decision to accept your claim pursuant to 42 U.S.C. §§ 7384s(a), 7384t and 7385s-8.  On January 17, 2006, the FAB received written notification that you waive any and all objections to the January 3, 2006 recommended decision. 

On February 16, 2006, the FAB issued a remand order concluding that the evidence of record establishes your employment with Mallinckrodt from April 15, 1951 through November 30, 1989 and that during the period from March 5, 1953 through February 17, 1954 you worked in the Uranium Division of MCW’s Destrehan Street Facility which is less than the 250 work days required to establish membership in the Special Exposure Cohort (SEC).  As such, the FAB remanded your claim to the district office for further employment development to ascertain whether the duration of your employment with MCW occurred in the Uranium Division of MCW’s Destrehan Street Facility or occurred at the Weldon Spring Plant, as verified by Mallinckrodt. 

On June 29, 2006, the Director of DEEOIC issued a Director’s Order vacating the February 6, 2006 remand order.  The Director’s Order concluded that the AEC did not enter into a contract with MCW to operate the Weldon Spring Plant until June of 1957; therefore, any reference to uranium work performed by Mallinckrodt prior to June 1957 would have occurred at the Destrehan site.  Accordingly, the Director’s Order further concluded that you were employed in Mallinckrodt’s Uranium Division for the period of at least 1951 through 1957.  As such, your case file was returned to the FAB with instructions to issue a new final decision.

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 the EEOICPA on August 15, 2005. 

2.         You worked for a covered contractor, Mallinckrodt, at a covered facility, the Destrehan Street Plant, during a covered period, from April 15, 1951 through November 30, 1989.

3.         You are a member of the SEC for having worked for at least 250 days in the Uranium Division of Mallinckrodt’s Destrehan Street Plant from 1951 through 1957.  

4.         You were diagnosed with a specified cancer, adenocarcinoma of the salivary gland on January 7, 1993.       

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

CONCLUSIONS OF LAW

By the authority granted under 42 U.S.C. § 7384l(14)(C) effective November 13, 2005, employees of the DOE or DOE contractors or subcontractors employed by the Uranium Division of Mallinckrodt Chemical Works, Destrehan Street Facility, were added to the SEC providing that the employee worked between 1949 and 1957 and was employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.  EEOICPA Bulletin No. 06-05 (issued December 27, 2005).  Based on your confirmed employment in the Uranium Division at the Mallinckrodt Chemical Works, Destrehan Street Facility during the specified period, the evidence is sufficient to establish that you are a member of the SEC

To facilitate a claim for cancer under Part B, the Act explains that a “covered employee with cancer” is, among other things, “An individual with a specified cancer who is a member of the SEC, if and only if that individual contracted that specified cancer after beginning employment at a DOE facility. . . .”  42 U.S.C. § 7384l(9)(A).  Primary cancer of the salivary gland is identified as a specified cancer pursuant to 20 C.F.R. § 30.5(ff)(5)(iii)(J) of the implementing regulations providing that the onset was at least 5 years after first exposure.  The medical evidence shows that you were diagnosed with adenocarcinoma of the salivary gland over five years after your first exposure to radiation at Mallinckrodt’s Destrehan Street Facility Uranium Division.  As such, the evidence of record establishes you are a “covered employee with cancer” as defined above entitled to compensation payable under Part B.

To facilitate a claim under Part E, the Act defines a “covered DOE contractor employee” as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility.  42 U.S.C. § 7385s(1).  In order to establish that the employee contracted an illness through toxic exposure, § 7385s-4 provides that “A determination under part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a DOE facility.”  42 U.S.C. § 7385s-4(a).  Based on your employment with a covered contractor and the acceptance of your claim for adenocarcinoma of the salivary gland under Part B of the EEOICPA in this decision, it is further determined that you contracted cancer of the salivary gland due to exposure to a toxic substance at a DOE facility.  As such, you meet the statutory definition of a “covered DOE contractor employee,” as defined above and are entitled to compensation payable under Part E.

Accordingly, your claim for compensation under EEOICPA in the amount of $150,000.00 under 42 U.S.C. § 7384s and medical benefits under 42 U.S.C. §§ 7384t and 7385s-8 is hereby approved.

Washington, DC

Vawndalyn B. Feagins, Hearing Representative

Final Adjudication Branch

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

NOTICE OF FINAL DECISION

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

Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her  additional compensation in the amount of $125,000.00.

STATEMENT OF THE CASE

On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease.  The record includes a copy of [Employee]‘s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease.

[Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980.  DOE verified [Employee]‘s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

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

On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2.  Each claimed benefits as the surviving child of [Employee].

[Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname.  [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname.  The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].

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

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

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

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

Pharynx cancer is a specified cancer for SEC claims.  With regard to epiglottis cancer, the National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx.  20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA.  The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus.  The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer.

On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E.  The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer.  The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally.  Further, the district office concluded that a determination that a DOE contractor employee and qualified member of the SEC is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility, and since [Claimant #5]  was under the age of 18 at the time of [Employee]‘s death, she is the only eligible survivor under Part E and is entitled to compensation in the amount of $125,000.00.

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims. 

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

On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC.  The new SEC class became effective on July 22, 2007. 

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

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

The statute provides that if a determination has been made that a DOE contractor employee is entitled to compensation for an occupational illness under Part B, such determination shall be treated, for purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a).  Consequently, [Employee]‘s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility.  The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]‘s death.  As the employee would have been entitled to compensation for his covered illness under Part E; and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1).  [Claimant #5] was 17 years of age at the time of [Employee]‘s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00.  See 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(d).

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

Membership not found

EEOICPA Fin. Dec. No. 87969-2008 (Dep’t of Labor, November 19, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

On June 22, 2007, [Claimant] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee].  [Claimant] identified kidney cancer and a “lung condition” as the conditions resulting from the employee’s work at a Department of Energy (DOE) facility.  On the claim form, [Claimant] indicated that the employee had worked at a location with a class of employees in the Special Exposure Cohort (SEC). 

[Claimant] submitted an Employment History (Form EE-3) stating that the employee was employed by the Department of the Army and/or the Atomic Energy Commission (AEC) at the Iowa Ordnance Plant (IOP) in Burlington, Iowa (also known as the Iowa Army Ammunition Plant (IAAP)) from 1936 to 1976.  [Claimant] indicated that the employee worked on Line 1 and on other lines and facilities on site as a Laborer in 1936, a Security Guard from 1936-1939, a Quality Control Supervisor from 1944-1952, and a Quality Control Supervisor from 1952-1976.  The portion of the IAAP considered a DOE facility includes the buildings and property/grounds of the IAAP identified as “Line 1.”  Line 1 of the IAAP encompasses a cluster of several buildings that were utilized for AEC activities.  On July 26, 2007, DOE indicated that the employee worked for the Department of Defense (DOD) at the IAAP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961.  DOE indicated that it could find no evidence that the employee worked for the AEC at the AEC part of the plant.

[Claimant] submitted a marriage certificate confirming that she married the employee on January 25, 1935.  [Claimant] also submitted the employee’s death certificate, signed by Dr. Sherman Williams, which indicated that the employee died on May 21, 1996 at the age of 84.  The death certificate listed the cause of death as congestive heart failure due to pneumonia, and listed [Claimant] as the employee’s surviving spouse.  [Claimant] also submitted medical information in support of her claim.  A July 2, 1992 pathology report by Dr. J.G. Lyday noted that the employee was diagnosed with renal cell adenocarcinoma on June 29, 1992. 

The evidence of record includes information from the U. S. Department of Labor’s Site Exposure Matrices (SEM) database.  The SEM database provides information regarding occupational categories, process operations, building and area locations, toxic substances, incidents, and the locations at the facility where the occupational categories performed their job duties, the locations of the toxic substances, and the locations of various incidents of exposure.  The SEM database includes the occupational category of security guard.  The SEM database identifies Buildings AX-1, and AX-2, both on Line 1, as locations where a security guard would work.  SEM identifies Line 1, Building 1-62 as a location where a fireman would work, and identifies Line 1 Building 1-70 and Building 1-99 as locations where a Foreman for Explosives Storage would work.  This was independently verified by the undersigned on October 20, 2008.  A needs assessment from the Burlington AEC Plant Former Worker Program also confirms that these labor categories were associated with Line 1.

The evidence of record also includes a Department of the Army document dated October 1, 1963, entitled “Permit to other Federal Government Department or Agency to Use Property on Iowa Army Ammunition Plant, Iowa.”  The permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IOP for a ten-year period, subject to conditions, including that the AEC pay the Army’s cost for “producing and supplying any utilities and other services furnished” for the AEC’s use.

On November 30, 2007, the Cleveland district office issued a decision recommending denial of [Claimant]‘s claim under both Parts B and E of EEOICPA because the evidence did not show that the employee was a “DOE contractor employee” as defined at 42 U.S.C. § 7384l(11).    

OBJECTIONS

On January 7, 2008, FAB received [Claimant]‘s objections to the November 30, 2007 recommended decision.  Along with her letter, [Claimant] submitted new factual evidence.  [Claimant]‘s letter also explained that since her authorized representative had not been copied on the district office’s correspondence, the evidence had not been submitted earlier.  On June 14, 2008, [Claimant] submitted the following relevant evidence to FAB with her objection letter in support of her claim:  an April 19, 1974 letter from Lieutenant Colonel C. Frederick Kleis of the Department of the Army to the employee expressing appreciation for his service at the IAAP; an April 19, 1974 certificate of retirement, signed by Lieutenant Colonel Kleis, recognizing the employee’s retirement from the federal service; a June 1, 1942 certificate from the IOP that recognized the employee’s completion of training as a Plant Guard; a December 19, 1967 certificate issued to the employee (as an employee at the IAAP) by the AMC Ammunition School, Savanna Army Depot upon his completion of a Quality Assurance Course; a Department of the Army Certificate of Service presented to the employee on May 29, 1963 for 20 years of federal service; a copy of Day & Zimmerman, Inc., IOP, Retired Employees Reunion badge dated May 17, 1986; and a Form DA-2496, dated April 1, 1974, that provided the employee’s AMC career record maintained at the Tobyhanna Army Depot.  The form indicated that the employee was employed by the Department of Army at the IAAP in Burlington, Iowa beginning June 29, 1943.

In summary, [Claimant] stated the following objections:

Objection 1:  [Claimant] objected that the Findings of Fact numbered 4, 5, 6 and 7 in the November 30, 2007 recommended decision were incorrect.  Finding of Fact No. 4 stated that “DOE verified [Employee] worked at the DOD part of the IOP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961.”  Finding of Fact No. 5 stated that “[t]he district office did not receive sufficient employment evidence to establish that the employee worked on Line 1 at the IOP during the SEC period.”  Finding of Fact No. 6 stated that “[t]he district office has not received evidence establishing entitlement to compensation on the basis of qualifying employment and a specified cancer for purposes of the SEC.”  Finding of Fact No. 7 stated that the district office advised [Claimant] of the deficiencies in her claim and provided her the opportunity to correct them.”

[Claimant] requested an oral hearing to express her objections to the recommended decision and to review the records of the employee’s work history.  A hearing on her objections to the recommended decision was held before a FAB Hearing Representative on March 11, 2008 in Burlington, Iowa, with [Claimant], [Claimant]‘s son and authorized representative, another of [Claimant]‘s sons, and her daughter-in-law in attendance.  At the hearing, [Claimant]‘s son and authorized representative testified that the employee’s computation date for his employment at the IOP was 1943 but that he actually started working at the IOP in 1942 as a guard, and that the employee retired from the IOP in 1974.  [Claimant]‘s son also testified that [Claimant] was employed at the hospital as head nurse, that [Claimant] rode to work with the employee, and that [Claimant] knew that there was a time that the employee worked on Line 1.  He stated that the documents indicate that the employee worked at the plant for 10,800 days and noted that the SEC requirement is 250 days.  He stated that the employee’s pay increase records, which he submitted after the hearing, prove the employee’s length of employment.  He explained that the DOE evidence indicating that the employee worked at the IOP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961 was erroneous and reflected his own employment at the plant.  He explained that the mix-up by DOE occurred due to the fact that he and the employee have the same name.  [Claimant]‘s son testified that he obtained and reviewed the employee’s employment records at the plant from 1942 through 1974.  He submitted an email dated February 25, 2008, marked as Exhibit 1, from Marek Mikulski of the Burlington AEC Plant Former Workers Program, which confirms that DOE incorrectly verified the employee’s employment at the Plant, by providing the employment dates of the employee’s son, who also worked at the plant.  

[Claimant]‘s son testified that the employee worked at the fire department at the plant, and thus had access to Line 1.  He testified that he lunched with the employee at Line 1.  He stated that [Claimant] drove the employee to work every day and dropped him off at the guard gate at Line 1.  He stated that the records submitted, including the employee’s job descriptions, have numerous references to the employee having access to all lines at the IOP.  [Claimant]‘s son also read information from several affidavits into the record, noting that the actual affidavits would be submitted immediately after the hearing.  He identified a photograph, submitted with the objection letter, of the employee wearing a badge that stated “all areas.”

At the hearing, [Claimant] presented the following documents as evidence:  a Department of the Army job description for an “Ammunition Loading Inspector, Leader,” dated April 20, 1960; a Department of the Army job description for an “Ammunition Loading Inspector, Lead Foreman,” dated February 15, 1965; a Department of the Army job description for an “Ammunition Loading Inspector, Lead Foreman,” dated July 19, 1955; a Department of the Army Certificate of Training for “One Year Firefighter-Guard Training” given at the IOP dated May 29, 1950; a Department of Army Form 873, Certificate of Clearance dated May 29, 1957 from IOP; a Department of the Army Notification of Personnel Action dated October 30, 1950, which reflects the promotion of [Employee] from Guard (Crew Chief) to Guard (Captain); an affidavit by a friend of the employee who attested that the employee worked all over the IOP as a guard-quality control; an affidavit by a work associate of the employee who attested that he worked at the IOP on Line 1 as a guard and quality control from 1960 to April 1974, and that she and the employee had lunch and worked together on Line 1; an affidavit of a work associate of the employee who attested that she worked for the employee in the Quality Assurance Department on all lines; an affidavit by [Claimant]‘s son and authorized representative, who identified himself as a work associate and son of the employee.  In this affidavit, [Claimant]‘s son and authorized representative attested that the employee worked in Quality Assurance and as a Guard at the IAAP as a federal employee.  He stated that he knew this because he was employed to cut grass on Line 1 and that he had lunch with the employee there.  He stated that the employee had clearance to be on Line 1 because he was not required to be accompanied by a guard.  [Claimant] also submitted an affidavit by [Claimant]‘s other son, who attested that his father worked at the AEC at IOP from December 1942 to April 1974 as a Guard and Quality Control supervisor; and her own affidavit, in which she attested that the employee worked at the IOP on Line 1.  [Claimant] also attested that the employee was a Guard and Quality Control Supervisor working throughout the plant with access to all Lines. [Claimant] further stated that she rode to work with the employee and often let him off at Line 1 while she continued on to her job at the hospital.

A copy of the hearing transcript was sent to [Claimant] on March 24, 2008, who provided additional comments on the hearing transcript.  On April 11, 2008, FAB received [Claimant]‘s son and authorized representative’s letter expressing his disappointment in the hearing because [Claimant] was not provided an opportunity to discover evidence from the Department of Labor indicating that the employee did not work on Line 1 for at least 250 days.  [Claimant]‘s son also provided a copy of Congressman Dave Loebsack’s March 19, 2008 inquiry to the Department of Labor regarding the status of [Claimant]‘s claim.  The letter also referred to the FAB Hearing Representative’s March 25, 2008 call confirming that kidney cancer is a “specified cancer.”  He stated his concern that the exhibits submitted at the hearing were not reproduced in the hearing transcript, and emphasized that the exhibits were more probative than the hearing testimony.  He provided a summary of the content of the six affidavits and personnel records submitted at the hearing and expressed concern whether the documentation would be reviewed and considered.

Response:  The additional documents [Claimant] submitted with her objections and at the hearing establish that the employment dates provided for the employee by DOE were incorrect and, in fact, reflected the employment dates of the employee’s son, who also worked at the plant.  Based on the new evidence [Claimant] submitted, a new finding has been made below that the employee was employed by the Department of the Army at the IAAP in Burlington, Iowa from June 29, 1943 to April 1, 1974. 

The documents [Claimant] submitted with her objections include a copy of a June 1, 1942 certificate from the Iowa Ordnance Plant recognizing the employee’s completion of training as a Plant Guard.  At the hearing, [Claimant] submitted a June 20, 1959 Federal Government/Civil Service Experience and Qualification Statement (SG-55) for the employee, which indicated that he was employed at the IAAP from February 11, 1952 to at least June 20, 1959 as an ammunition loading inspector in the Inspection Division; from August 6, 1950 to February 10, 1952 as a Captain in the Guard Department; and from June 29, 1947 to May 27, 1949 as an Ammunition & Equipment Storage Foreman in the Transportation & Storage Division.  [Claimant] submitted, with her objection, a June 20, 1959 Government employment application with a handwritten resume, signed by the employee.  The application states he was employed at the IOP from June 29, 1947 to May 27, 1949 as an Ammo & Equipment Storage Foreman in the Transportation and Storage Division.  A May 27, 1948 Application for Federal Employment, signed by the employee, states he was employed at the IOP as a Munitions Handler Foreman beginning June 1947; a Material Receiver and Checker from January 1947 to June 1947; a Guard from May 1946 to January 1947; and a Guard from December 1942 to May 1944 (shell and bomb loading).  An October 30, 1950 Department of the Army Notification of Personnel Action reflects the promotion of the employee from Guard (Crew Chief) to Guard (Captain).

[Claimant] provided additional documentation, including EE-4 affidavits, work records for the employee, and testimony at the hearing indicating that the employee was employed by the Department of the Army at the IAAP from June 29, 1943 to April 1, 1974 and that the employee worked on Line 1 for at least 250 days during March 1949 through 1974.  The evidence reflects that the employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.  All of the evidence [Claimant] submitted with her objections and at the hearing has been reviewed and considered by FAB

Objection 2:  [Claimant] stated that the claim adjudication process was frustrating and difficult.  She expressed her dissatisfaction with the way some of the claims examiners handled her claim.

Response:  It is regrettable that [Claimant] experienced some difficulty during the processing of her claim.  The Division of Energy Employees Occupational Illness Compensation (DEEOIC) customer service policy affirms DEEOIC’s commitment to serving its customers with excellence.  It is DEEOIC’s responsibility to work with its customers to improve the practical value of the information, services, products, and distribution mechanisms it provides and the importance of interacting proactively with customers, identifying their needs, and integrating these needs into DEEOIC program planning and implementation.  The highest level of customer service is expected in all dealings with individuals conducting business with DEEOIC.  As representatives of DEEOIC, all staff members are expected to be courteous, professional, flexible, honest and helpful.

After considering the written record of the claim, [Claimant]‘s letters of objection, along with the testimony and objections presented at the hearing, FAB hereby makes the following:

FINDINGS OF FACT

1. [Claimant] filed a claim for survivor benefits under EEOICPA on June 12, 2007. 

2. The employee was employed by the Department of the Army at the IOP from June 29, 1943 to April 1, 1974. The employee worked for at least 250 work days on Line 1 during the period March 1949 through 1974.

3. The employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.

4. The employee died on May 21, 1996 as a consequence of congestive heart failure due to pneumonia.  [Claimant] is the surviving spouse of the employee.

5. An October 1, 1963 permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IOP for a ten year period, subject to conditions, including that the AEC pay the Army’s cost in “producing and supplying any utilities and other services furnished” for the AEC’s use.  The permit did not obligate the Army to provide any specific services to the AEC, and does not in itself constitute a contract for the provision of services between the Army and the AEC by which the AEC paid the U.S. Army to provide services on Line 1.

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

CONCLUSIONS OF LAW

The undersigned has carefully reviewed the testimony, the evidence of record, and the November 30, 2007 recommended decision issued by the Cleveland district office.  Based on [Claimant]‘s objections, testimony at the hearing, and the evidence of record, [Claimant]‘s survivor claim for benefits under Parts B and E for the employee’s kidney cancer and “lung condition” is denied.

Part B of EEOICPA provides benefits to eligible current or former employees of DOE, and certain of its vendors, contractors and subcontractors, and to survivors of such individuals.  To be eligible, an employee must have sustained cancer, chronic silicosis, beryllium sensitivity or chronic beryllium disease while in the performance of duty at a covered DOE facility, atomic weapons employer facility, or a beryllium vendor facility during a specified period of time.

With respect to claims for cancer arising out of work-related exposure to radiation under Part B, the SEC was established by Congress to allow the adjudication of certain claims without the completion of a radiation dose reconstruction.  See 42 C.F.R. § 83.5 (2007).  The Department of  Labor (DOL) can move directly to a decision on cases involving a “specified cancer” contracted by a member of the SEC because the statute provides a presumption that specified cancers contracted by a member were caused by the worker’s exposure to radiation at a covered facility.  A “specified cancer” is any cancer described in the list appearing at 20 C.F.R. § 30.5(ff) (2007).

On June 19, 2005, employees of DOE or DOE contractors or subcontractors employed at the IOP/IAAP (Line 1) during the period March 1949 through 1974 who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees in the SEC were added to the SEC.  70 Fed. Reg. 37409 (June 29, 2005).

In order for an employee to be afforded coverage under EEOICPA, the employee must be a “covered employee.”  42 U.S.C. § 7384l(11)(B).  The evidence of record demonstrates that the employee was employed by the Department of the Army at the IAAP from June 29, 1943 to April 1, 1974, and that he worked for at least 250 work days on Line 1 during the period March 1949 through 1974.  He was diagnosed with kidney cancer on June 29, 1992, and kidney cancer is a specified cancer.  However, the evidence is insufficient to show that the Department of the Army was a DOE contractor or subcontractor.  Consequently, the employee does not qualify as a “covered employee with cancer,” under EEOICPA.  See 42 U.S.C. § 7384l(9)(A).

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility.  See 42 U.S.C. § 7385s(2); 20 C.F.R. § 30.5(p).

The term “Department of Energy contractor employee” means any of the following

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

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

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

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

42 U.S.C. § 7384l(11). 

On June 3, 2003, DEEOIC issued EEOICPA Bulletin No. 03-26, which provides guidance to its staff with respect to the adjudication of EEOICPA claims filed by current or former employees of state or federal government agencies seeking coverage as a “DOE contractor employee.”  The policy and procedures outlined in this Bulletin only apply to state and federal agencies that have/had a contract or an agreement with DOE.  The Bulletin states that a civilian employee of a state or federal government agency can be considered a “DOE contractor employee” if the government agency employing that individual is:  (1) found to have entered into a contract with DOE for the accomplishment of one or more services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity.  Thus, a civilian employee of DOD who meets the criteria required to be considered a DOE contractor employee is not excluded from EEOICPA coverage solely because they were employed by DOD.

The evidence of record includes an October 1, 1963  Department of the Army document entitled “Permit to other Federal Government Department or Agency to Use Property on Iowa Army Ammunition Plant, Iowa.”  The permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IAAP for a ten-year period, subject to conditions, including that the AEC pay the Army’s cost in “producing and supplying any utilities and other services furnished” for the AEC’s use.  Because the condition did not obligate the Army to provide any specific services to the AEC, it is insufficient to establish that a contract for the provision of services between the Army and the AEC existed by which the AEC paid the U.S. Army to provide services on Line 1 that the Army was not otherwise statutorily obligated to perform.

Section 30.110(c) of the regulations provides that any claim that does not meet all of the criteria for at least one of the categories including a “covered employee” (as defined in § 30.5(p)) as set forth in the regulations must be denied.  See 20 C.F.R. §§ 30.5(p), 30.110(b) and (c). 

The evidence of record does not show that the employee was employed by a DOE contractor or subcontractor as required by 42 U.S.C. § 7384l(11).  Accordingly, [Claimant]‘s claim under EEOICPA is denied.

Washington, D.C.

Susan von Struensee

Hearing Representative

Final Adjudication Branch

Specific employment requirements

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

 

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

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

     STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A DOE employee or a DOE contractor employee, who was present for a number of workdays aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for test or experiments related to an atomic weapon. 

See 42 U.S.C. § 7384r(c) and (d); 20 C.F.R. § 30.220(a).  Consequently, even if the evidence showed DOE employment (which it does not since [Employee] worked for the DOD), he was present only three days on Amchitka, which is not sufficient for the 250 days required under the Act as a covered employee with silicosis.

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

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

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

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002);

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On December 12, 2001, the Seattle District Office issued a recommended decision concluding that the deceased covered employee was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA, and that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA as his survivor.  On December 17, 2001, the Final Adjudication Branch received written notification from you waiving any and all objections to the recommended decision.

The undersigned has reviewed the evidence of record and the recommended decision issued by the Seattle district office on December 12, 2001, and finds that:

In a report dated August 20, 1996, Dr. John Mues diagnosed the deceased covered employee with mixed squamous/adenocarcinoma of the lung.  The report states the diagnosis was based on the results of a thoracoscopy and nodule removal. Lung cancer is a specified disease as that term is defined in § 7384l(17)(A) of the EEOICPA and 20 CFR § 30.5(dd)(2) of the EEOICPA regulations.

You stated in the employment history that the deceased covered employee worked for S.S. Mullins on Amchitka Island, Alaska from April 21, 1967 to June 17, 1969.  Nancy Shaw, General Counsel for the Teamsters Local 959 confirmed the employment by affidavit dated November 1, 2001.  The affidavit is acceptable evidence in accordance with § 30.111 (c) of the EEOICPA regulations.

Jeffrey L. Kotch[1], a certified health physicist, has advised it is his professional opinion that radioactivity from the Long Shot underground nuclear test was released to the atmosphere a month after the detonation on October 29, 1965. He further states that as a result of those airborne radioactive releases, SEC members who worked on Amchitka Island, as defined in EEOICPA § 7384l(14)(B), could have been exposed to ionizing radiation from the Long Shot underground nuclear test beginning a month after the detonation, i.e., the exposure period could be from approximately December 1, 1965 through January 1, 1974 (the end date specified in EEOICPA, § 7384l(14)(B)).  He supports his opinion with the Department of Energy study, Linking Legacies, DOE/EM-0319, dated January 1997, which reported that radioactive contamination on Amchitka Island occurred as a result of activities related to the preparation for underground nuclear tests and releases from Long Shot and Cannikin.  Tables 4-4 and C-1, on pages 79 and 207, respectively, list Amchitka Island as a DOE Environmental Management site with thousands of cubic meters of contaminated soil resulting from nuclear testing.

The covered employee was a member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA and §§ 30.210(a)(2) and 30.213(a)(2) of the EEOICPA regulations.  This is supported by evidence that shows hewas working on Amchitka Island for S.S. Mullins during the potential exposure period, December 1, 1965 to January 1, 1974.

The covered employee died February 17, 1999.  Metastatic lung cancer was included as a immediate cause of death on the death certificate.

You were married to the covered employee August 18, 1961 and were his wife at the time of his death.  You are the eligible surviving spouse of the covered employee as defined in § 7384s of the EEOICPA, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012, 1371, December 28, 2001.[2]

The undersigned hereby affirms the award of $150,000.00 to you as recommended by the Seattle District Office.

Washington, DC

Thomasyne L. Hill

Hearing Representative

[1] Jeffrey L. Kotch is a certified health physicist employed with the Department of Labor, EEOICP, Branch of Policies, Regulations and Procedures.  He provided his professional opinion in a December 6, 2001 memorandum to Peter Turcic, Director of EEOICP.

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. 2960-2002 (Dep’t of Labor, December 12, 2001)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On November 20, 2001, the district office issued a recommended decision finding that [Employee] was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA; that he was diagnosed with lung cancer, a specified cancer as listed in § 7384l(17) of EEOICPA and 20 C.F.R. § 30.5(dd)(2); and concluding that you, as the survivor of [Employee], are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA.

In order to be afforded coverage under EEOICPA as an SEC member, the claimant must show that the covered employee: (1) was an SEC member under § 7384l(14); and (2) was diagnosed with a specified cancer as defined in § 7384l(17).  To qualify as a member of the SEC under § 7384l(14) the following requirements must be satisfied:

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

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

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

The Department of Energy has verified [Employee]‘s employment as a Department of Energy contractor employee of more than 250 workdays prior to February 1, 1992 at the Oak Ridge, TN complex (at Y-12, K-25 (the GDP), and the Oak Ridge National Laboratory).  However, contrary to the district office’s recommended decision, there is no evidence in the case file which confirms its finding that [Employee] was monitored for exposure to radiation through the use of dosimetry badges.  Rather, the appropriate portion of the EE-3 (Employment History) concerning dosimetry badges was left blank.

According to the Department of Energy sponsored report entitled Recycled Uranium Mass Balance Project Oak Ridge Gaseous Diffusion Plant Site Report (BJC/OR-584), released in June 2000, “worker radiation monitoring was in place since the site’s earliest days of operation.  Film badges or film rings (for potential hand exposures) were requested by supervisors for those employees routinely assigned to work in areas where penetrating radiation was likely to be encountered.”  Because the Department of Energy verified [Employee]‘s employment as intermittently from 1969 through 1984, I find that [Employee]‘s employment at the Oak Ridge GDP satisfies the requirements of EEOICPA § 7384l(14)(A).

On December 6, 2001, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.  The undersigned has reviewed the facts and finds that [Employee] was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA; that [Employee]‘s lung cancer is a specified cancer under § 7384l(17) of EEOICPA and 20 C.F.R. § 30.5(dd)(2); and that you are the eligible surviving beneficiary of [Employee] as defined under § 7384s of the EEOICPA and the implementing regulations.  The undersigned hereby affirms the award of $150,000.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

42 U.S.C. § 7384l(14)(A).

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

FINDINGS OF FACT

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

Jacksonville, FL

J. Mark Nolan

Hearing Representative

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

In support of your claim for survivor benefits you submitted a copy of your birth certificate showing the employee as your mother and indicating that you were born on [Claimant’s date of birth].  You also submitted a copy of the employee’s death certificate showing that she was born on [Employee’s date of birth], that she died on May 10, 1959, and that she was married to [Employee’s spouse] at the time of her death.  The death certificate showed the employee died as a result of her carcinoma of the breast with metastasis.  Also submitted was a copy of [Employee’s spouse’s] death certificate.  The above evidence indicates that you were eleven (11) years old at the time of the employee’s death.

The district office verified that the employee worked for Tennessee Eastman Corporation at the Y-12 plant in Oak Ridge, Tennessee, from October 28, 1944 to October 30, 1945.  The Oak Ridge Institute for Science and Education (ORISE) database and plant records confirmed that she worked at theY-12 plant as a laboratory assistant and analyst.

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment, or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

On February 1, 2006, the Jacksonville district office issued a recommended decision, concluding that you are entitled to compensation of $325,000 under Parts B and E of the Act.

The Final Adjudication Branch (FAB) received your written confirmation dated February 3, 2006, that neither you nor the employee had received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.  You also indicated that at the time of the employee’s death you were the employee’s only child.  On April 3, 2006, the FAB received your written confirmation that you waived your right to object to any of the findings of fact and/or conclusions of law contained in the recommended decision.

FINDINGS OF FACT

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

2. You were the employee’s child and under the age of 18 years old at the time of her death.  Her spouse at the time of her death is no longer living.

3. The employee was diagnosed with breast cancer on June 8, 1953, which metastasized to the bone.  The bone metastasis was diagnosed as early as November 5, 1957.

4. The employee was employed by Tennessee Eastman Corporation at the Y-12 plant as a laboratory assistant and analyst from October 28, 1944 to October 30, 1945.

5. The employee’s breast cancer with metastasis to the bone caused her death.

CONCLUSIONS OF LAW

On June 5, 2006, the DEEOIC issued EEOICPA Bulletin No. 06-11, which provided supplemental guidance for processing claims for the SEC class for the Y-12 plant.  That bulletin establishes that the primary function of the Y-12 plant during 1943 to 1947 was to perform uranium enrichment using a calutron.  Attachment 4 of the bulletin lists occupational titles for the Y-12 plant employees involved in “Other Radiological Activities.”[1] The employee’s job titles of laboratory assistant and analyst are not on the list as a likely employee title; however, the job title of laboratory technician was listed.  An employee change form dated October 30, 1945, shows that her department was “Beta Production Analysis.”  The beta building was 9204, and calutron production was performed there.  While there is no evidence that the employee worked in that building, her work most likely involved research/analysis for the beta building, which lends support to a finding that she was involved in “other radiological activities.”  Therefore, it is reasonable to conclude that the job titles of laboratory assistant and analyst should be considered as job titles involved in “other radiological activities.”  The evidence shows that the employee worked with Tennessee Eastman Corporation at the Y-12 plant in other radiological activities from October 28, 1944 to October 30, 1945.  This period of employment was during the time frame the Y-12 plant was designated as a SEC facility.[2]

The employee worked in uranium enrichment activities or other radiological activities at Y-12 for more than 250 work days.  Therefore, the employee qualifies as a member of the SEC.  As a member of the SEC who was diagnosed with breast cancer and secondary bone cancer, which are “specified cancers” pursuant to 42 U.S.C. § 7384l(17)(A) and (B) and 20 C.F.R. § 30.5(ff)(3) and (5)(iii)(B) and constitute “occupational” illnesses under 42 U.S.C. § 7384l(15), the employee or the employee’s survivor(s) qualify for benefits as a “covered employee with cancer.”  42 U.S.C. § 7384l(9).  You meet the definition of a survivor under Part B of the Act.  42 U.S.C. § 7384s(e)(3)(B).  Therefore, you are entitled to $150,000 for the employee’s breast cancer and secondary bone cancer.  42 U.S.C. §§ 7384s(a).

The employee was an employee of a Department of Energy (DOE) contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2).  You meet the definition of survivor under Part E of the Act.  42 U.S.C. § 7385s-3(d)(2).  Therefore, you are also entitled to benefits in the amount of $125,000 for the employee’s death due to breast cancer.  42 U.S.C. § 7385s-3.

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of her death through and including the calendar year in which she would have reached normal retirement age.  20 C.F.R. § 30.815 (2005).  This equals 21 years of wage-loss.  Therefore, you are entitled to wage-loss compensation in the amount of $50,000.  42 U.S.C. § 7385s-3(a)(3).

Jacksonville, FL

Mark Stewart

Hearing Representative

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

EEOICPA Fin. Dec. No. 17556-2003 (Dep’t of Labor, September 27, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On December 13, 2001, you filed a claim, Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employment of your late husband, [Employee] (the employee).  You identified an unspecified cancer as the condition being claimed. 

Medical evidence submitted with the claim included a December 19, 1989 medical report from St. Mary’s Hospital, showing a diagnosis of poorly differentiated large cell carcinoma of the upper lobe of the right lung.  You also submitted a copy of a pathology report which diagnosed lung cancer on December 15, 1989. 

You provided a Form EE-3 (Employment History), indicating that your husband was employed with James Bolt, a subcontractor, while at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio from approximately 1976 to 1985.  The Department of Energy (DOE) was unable to verify your husband’s employment.  Following appropriate development, on December 11, 2002, the Cleveland district office issued a recommended decision to deny the claim based on the lack of established employment at a facility covered under the Act.  On February 20, 2003, the Final Adjudication Branch affirmed the findings of the district office’s recommended decision.

On January 13, 2004, you requested that your case be reopened.  Along with your request, you submitted additional employment evidence.  On April 23, 2004, as a result of the additional employment evidence you submitted, a Director’s Order was issued vacating the February 20, 2003 final decision of the Final Adjudication Branch denying your claim for compensation under the EEOICPA.  Your case was then returned to the Cleveland district office for consideration of the new evidence and issuance of a new recommended decision.

The Cleveland district office was able to verify that your husband was employed by James Bolt from about 1978 to 1985 based on an itemized statement of earnings provided by the Social Security Administration (SSA).  You also provided several letters and Forms EE-4 (Employment History Affidavit) from Pat Spriggs (your husband’s co-worker), Cassandra Bolt-Meredith (the wife of James Bolt, your husband’s employer), and [Name of Employee’s son-in-law] (your husband’s son-in-law) placing your husband on site at the Portsmouth GDP as a part-time subcontractor employee from 1978 to 1985.  In addition, a letter from Bruce E. Peterson, General Manager of Ledoux & Company stating that “Mr. James Bolt was an independent subcontractor for Ledoux & Company performing witnessing services for various clients at the Portsmouth Gaseous Diffusion Nuclear Facility in Portsmouth, Ohio” supports that a contract existed between James Bolt, Ledoux & Company, and the Portsmouth GDP during the 1970’s and 1980’s.

You provided a copy of your marriage certificate, showing you and your husband were married on October 7, 1947.  You provided a copy of your husband’s death certificate showing he was married to you at his time of death on February 14, 1990.

On August 23, 2004, the Cleveland district office issued a recommended decision that concluded your husband is a member of the Special Exposure Cohort, as defined by § 7384l(14)(A).  The district office further concluded that your husband was diagnosed with lung cancer, which is a specified cancer as defined by § 7384l(17)(A).  In addition, the district office concluded that you are the surviving spouse of the employee, as defined by § 7384s, and, as such, you are entitled to compensation in the amount of $150,000.00 pursuant to § 7384s. 

On August 30, 2004, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT 

1. You filed a claim and presented medical evidence on December 13, 2001, based on your husband’s lung cancer.

2. For the purposes of SEC membership, your husband was employed with James Bolt, a DOE subcontractor, at the Portsmouth GDP in Piketon, Ohio, from at least 1978 to 1985

3. Your husband was employed for a number of work days aggregating at least 250 work days from September 1, 1954, to February 1, 1992, and during such employment worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

4. On December 15, 1989, your husband was diagnosed with lung cancer. 

5. You are the surviving spouse of the employee and were married to him at least one year prior to his death.

CONCLUSIONS OF LAW

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

The evidence of record establishes that your husband worked in covered employment at the Portsmouth GDP from at least 1978 to 1985.  Consequently, he met the requirement of working more than an aggregate 250 days at a covered facility.  Also, the statute requires proof that the covered employee was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body.  You indicated that you were not sure whether your husband wore a dosimetry badge.  Under provisions of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), employees who worked at the Portsmouth GDP between September 1, 1954 and February 1, 1992 performed work that was comparable to a job that was monitored through the use of dosimetry badges.  See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3 (June 2002).  Thus, your husband met the dosimetry requirements of the Act.

The EEOICPA provides coverage for a specified cancer as defined in § 4(b)(2) of the Radiation Exposure Compensation Act (RECA) including cancer of the lung.  The medical evidence of record indicates that your husband was diagnosed with lung cancer.  Therefore, he is a member of the Special Exposure Cohort, who was diagnosed with a specified cancer under the Act.  See 42 U.S.C. § 7384l(17)(A).

The employee is deceased and you have provided documentation that you are the surviving spouse of the employee, who was married to the employee at least one year immediately before his death.  See 42 U.S.C. § 7384s(e)(3)(A). 

For the foregoing reasons, the undersigned hereby accepts and approves your claim based on cancer of the lung.  You are entitled to compensation in the amount of $150,000, pursuant to § 7384s of the EEOICPA.  See 42 U.S.C. § 7384s(a)(1) and (e)(1)(A). 

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

You also provided a Form EE-3 (Employment History) in which you state that you worked for Dynamic Industrial (Dycon) at the Portsmouth Gaseous Diffusion Plant (GDP), in Piketon, OH, as a pipefitter from January 1983 to November 1984 and from January 1985 to June 1985.  You also report that you worked for the Marley Cooling Tower Co. at the Portsmouth GDP during March 1985.  You also state that you wore a dosimetry badge while so employed.

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

The Final Adjudication Branch notes that you claimed benefits based on rectal cancer/colon cancer.  The medical evidence of record interchangeably refers to adenocarcinoma of the rectum and the colon.  Regardless of the term used, the evidence reveals only a single tumor located in the rectum.  For that reason, your claim is considered to be based on a single occurrence of cancer in your rectum.

Rectal cancer is considered to be colon cancer, which is a specified cancer under the Act, and the medical evidence of record establishes a diagnosis of rectal cancer.  Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer.  See 42 U.S.C. §§ 7384l(14)(A) and (17).

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

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 18528-2006 (Dep’t of Labor, February 8, 2008)

NOTICE OF FINAL DECISION 

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

STATEMENT OF THE CASE

On January 3, 2002, you filed a claim for survivor benefits under EEOICPA as a surviving parent of [Employee].  You claimed the employee was employed by Dow Chemical, Rockwell International and EG&G at the Rocky Flats Plant[1] from 1964 to 1966, and from June 1, 1981 to 1993.  The Department of Energy verified the employee was employed at the Rocky Flats Plant from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

You claimed the employee was diagnosed with ovarian cancer.  The pathology report of the tissue obtained on December 28, 1995 described a diagnosis of moderately differentiated endometrioid-type adenocarcinoma of the left ovary.

The employee’s death certificate showed she was born on March 31, 1946; died on January 25, 2001 at the age of 54; and was widowed.  The death certificate also listed [Employee’s Spouse] as her spouse; [Employee’s Father] as her father; and [Claimant] as her mother.  The death certificate for [Employee’s Spouse] showed he died on February 15, 2000, and was married to [Employee] (maiden name given).  The employee’s birth and hospital certificates showed [Employee] was born on March 31, 1946; to [Employee’s Father]and [Claimant].  [Employee’s Father]‘s death certificate showed he died on November 27, 1993.

On December 2, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of her employment at the Rocky Flats Plant.  On February 17, 2006, a final decision was issued under Part B of EEOICPA denying your claim for survivor benefits based on a probability of causation of 26.93%, which showed that the employee’s cancer did not meet the 50% “at least likely as not” mandated level for compensability.

On August 6, 2007, the Secretary of the Department of Health and Human Services (HHS) designated the following classes of employees for addition to the Special Exposure Cohort (SEC):  Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.  The SEC designations for these classes became effective on September 5, 2007.

A review of the evidence of record indicates that the employee had a period of employment aggregating 250 days during the SEC period (January 1, 1959 through December 31, 1966); was monitored for neutron exposures, as her name appears on the Neutron Dose Report (NDR)[2]; and was diagnosed with ovarian cancer, a specified cancer, more than five years after her first exposure to radiation at the Rocky Flats Plant.  Based on the SEC determinations for certain employees at the Rocky Flats Plant, a Director’s Order was issued on December 28, 2007 that vacated the prior decision issued under Part B.

On December 28, 2007, the district office issued a recommended decision to accept your claim for survivor benefits under Part B of EEOICPA and referred the case to the FAB for an independent assessment of the evidence and a final decision on your claim. 

On January 11, 2008, the FAB received your signed statement certifying that neither you nor the employee filed any lawsuits, tort suits, or state workers’ compensation claims; or received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

After considering the recommended decision and all evidence in the case, the FAB hereby makes the following:

FINDINGS OF FACT

1. On January 3, 2002, you filed a claim for survivor benefits as the surviving parent of [Employee]. 

2. You are the surviving parent of [Employee], as supported by birth and death certificates.

3. The employee was employed at the Rocky Flats Plant, a covered DOE facility, from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

4. Effective September 5, 2007, employees at the Rocky Flats Plant that worked from April 1, 1952 through December 31, 1958, and/or January 1, 1959, through December 31, 1966, and were monitored or should have been monitored for neutron exposure, were added to the SEC.

5. The employee has a period of employment at the Rocky Flats Plant aggregating 250 days during the SEC period, September 17, 1964 through July 25, 1966.

6. The employee was monitored for neutron dose exposure during the period September 17, 1964 to July 25, 1966, as confirmed by the NDR.

7. The employee was diagnosed with ovarian cancer (a specified cancer) on December 28, 1995. This diagnosis occurred more than five years after her first exposure to radiation at the Rocky Flats Plant.

8. The evidence of record contains your signed statement certifying that neither you nor the employee filed a lawsuit, tort suits, or state workers’ compensation claims; received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

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

CONCLUSIONS OF LAW

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, the FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a).  On January 11, 2008, the FAB received your written notification waiving any and all objections to the recommended decision.

Part B of EEOICPA provides benefits for an employee diagnosed with a specified cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility.  Such employee is considered “a covered employee with cancer.” 

On August 6, 2007, the Secretary of HHS designated the following classes of employees for addition to the SEC:  Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.  The SEC designations for these classes became effective September 5, 2007. 

The employee is a member of the SEC as designated above and defined by 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act, and has been diagnosed with ovarian cancer, a specified cancer.  The FAB concludes that the employee is a “covered employee with cancer” pursuant to the requirements of 42 U.S.C. § 7384l(9)(A).

You have established that you are the employee’s eligible survivor, pursuant to 42 U.S.C. § 7384s(e)(3)(C) of the Act.  Therefore, you are entitled to compensation in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1) and (e)(1)(C).

Accordingly, your claim for survivor benefits for the employee’s ovarian cancer is approved for compensation under Part B of the Act.

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 25854-2006 (Dep’t of Labor, January 14, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for survivor benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim is hereby accepted.

STATEMENT OF THE CASE

On March 25, 2002, [Claimant] filed a claim for survivor benefits under EEOICPA as the surviving spouse of [Employee].  She reported that the employee was employed as a metallurgical operator/scheduler and general clerk at the Rocky Flats Plant[1] from February 1963 to February 1972.  The Department of Energy (DOE) verified that the employee was employed at the Rocky Flats Plant from February 25, 1963 to February 3, 1972.  Additional records received from DOE documented that the employee by employed by Dow Chemical, a DOE contractor, during his employment at Rocky Flats. 

In support of her claim, [Claimant] alleged that the employee was diagnosed with metastatic kidney cancer.  A pathology report of the tissue obtained on January 17, 1972 described a diagnosis of clear cell adenocarcinoma of the left kidney.  An autopsy report dated February 22, 1972 also provided a diagnosis of adenocarcinoma of the left kidney with metastatic carcinoma to the right adrenal gland, both lungs, pancreatic lymph nodes, and right paravertebral lymph nodes.

The employee’s death certificate reported that he was born on February 22, 1925, that he died on February 2, 1972 at the age of 46, that he was married to [Claimant’s maiden name], and the cause of death was cardiorespiratory arrest due to massive gastrointestinal bleeding and metastatic adenocarcinoma of the left kidney.  [Claimant]‘s marriage certificate showed that [Employee] and [Claimant’s maiden name] married on October 1, 1939.

On September 10, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of his employment at the Rocky Flats Plant.  On October 2, 2006, FAB issued a final decision denying the claim under Part B of EEOICPA for survivor benefits on the ground that the probability of causation was only 30.40%, based on NIOSH’s dose reconstruction. 

On August 6, 2007, the Secretary of Health and Human Services (HHS) designated the following classes for addition to the Special Exposure Cohort (SEC):  employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.  The SEC designations for these classes became effective September 5, 2007

A review of the evidence of record indicates that the employee had a period of employment aggregating at least 250 days during the SEC periods of April 1, 1952 through December 31, 1958, and January 1, 1959 through December 31, 1966, and his name appears on the report of the Neutron Dosimetry Reconstruction Project Report (NDRP).[2]  The employee was diagnosed with kidney cancer, a “specified” cancer, more than five years after his first exposure to radiation at the Rocky Flats Plant.

Based on the new designation of two classes of employees at the Rocky Flats Plant as members of the SEC, a Director’s Order was issued on December 4, 2007 that vacated the prior decision on this claim under Part B.  On December 12, 2007, the district office issued a recommended decision to accept the claim for survivor benefits under Parts B and E of EEOICPA for kidney cancer and referred the case to FAB for the issuance of a final decision. 

On December 13, 2007, FAB received [Claimant]‘s signed statement certifying that neither she nor the employee had filed any tort suits or state workers’ compensation claims, that they had not received any awards or benefits related to kidney cancer, that they had not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and the employee, at the time of his death, had no minor children or children incapable of self support, who were not [Claimant]‘s natural or adopted children.

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

FINDINGS OF FACT

1. On March 25, 2002, [Claimant] filed a claim for survivor benefits under EEOICPA. 

2. [Claimant] is the employee’s surviving spouse as supported by death and marriage certificates.

3. The employee worked for Dow Chemical, a DOE contractor, at the Rocky Flats Plant, a DOE facility, from February 25, 1963 to February 3, 1972, which is more than 250 days, and the employee’s name appears on the report of the NDRP. 

4. The employee was diagnosed with kidney cancer on January 17, 1972, which was at least five years after he first began employment at a DOE facility.

5. Based on the employee’s reported date of birth of February 22, 1925, his normal retirement age (for purposes of the Social Security Act) would have been 65.

6. Neither [Claimant] nor the employee filed a tort suit or a state workers’ compensation claim, received any awards or benefits related to kidney cancer, have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and the employee, at the time of death, had no minor children or children incapable of self support, who were not [Claimant]‘s natural or adopted children.

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

CONCLUSIONS OF LAW

A claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R  § 30.310(a) (2008).  If an objection is not raised during the 60-day period, FAB may issue a final decision accepting the district office’s recommended decision.  20 C.F.R. § 30.316(a).  On December 20, 2007, FAB received written notification from [Claimant] waiving any and all objections to the recommended decision.

As found above, the employee worked at the Rocky Flats Plant for a period of at least 250 work days, during the SEC periods of April 1, 1952 through December 31, 1958, and January 1, 1959 through December 31, 1966.  Part B of EEOICPA provides benefits for an employee diagnosed with a “specified” cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility.  Such employee is considered “a covered employee with cancer.” 

FAB concludes that the employee is a member of the SEC, and because he was diagnosed with kidney cancer, a “specified” cancer.  Therefore, FAB also concludes that the employee is a “covered employee with cancer” under Part B since he satisfies the requirements of 42 U.S.C. § 7384l(9)(A).

Under 42 U.S.C. § 7385s-4(a), it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s death.  As used in Part E, the term “covered illness” means an illness or death resulting from exposure to a toxic substance.

Pursuant to 20 C.F.R. § 30.800, years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a DOE facility may be compensable under Part E.  In this case, the evidence of record supports that employee experienced wage-loss for the years 1972 through 1990 (when he would have attained his normal Social Security retirement age); thus, additional compensation in the amount of $25,000.00 is payable in addition to the basic survivor award under Part E of $125,000.00.

[Claimant] has established that she is the surviving spouse of the employee as defined by Parts B and E of EEOICPA.  Accordingly, she is entitled to compensation under Part B in the amount of $150,000.00, as outlined in 42 U.S.C. § 7384s(a)(1).  She is also entitled to compensation under Part E in the amount of $150,000.00 pursuant to 42 U.S.C. §7385s-3(a)(2).

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 20772-2006 (Dep’t of Labor, January 10, 2006)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, the Final Adjudication Branch accepts your claims for compensation in the amount of $25,000 (one-sixth each of $150,000) under Part B.  A decision on your claims under Part E is deferred pending additional development.

STATEMENT OF THE CASE

On January 22 ([Claimant #1]) and April 5, 2002 ([Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], and [Claimant #6]), you each filed a Form EE-2 (Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program Act), based on the employee’s ([Employee], your father) condition of metastatic carcinoma of the spinal cord.

The record includes medical summaries and operative reports indicating that the employee was diagnosed with metastatic carcinoma spinal cord tumor.  On November 28, 1989, Patrick W. Hitchon, M.D., Professor of Neurosurgery, opined that primary sites of the cancer were likely the kidney and or the lung.

You submitted a Form EE-3 (Employment History) indicating that the employee worked for the Iowa Ordnance Plant, Mason & Hangar, for twenty-eight years, as a truck driver in “all areas of the plant as well as Line One.”  A representative of the Department of Energy was only able to verify the employee worked at the Iowa Ordnance Plant from November 19, 1951 to January 16, 1961.

Other evidence of record contains employment information.  You provided a statement, based on information you obtained from talking to a foreman and co-workers of the employee.  You stated that the employee worked at “Iowa Plant, Army Ammunition Plant, Line one building Middleton, Iowa.”  He was a “truck driver” who hauled “people (electricians, sheet metal workers, iron workers and carpenter) to [the] job site.”  Also, the employee “hauled materials and helped to upload materials.”  In addition, the employee worked at “Firing Site Test Area (FS12)” as he hauled “workers to perform their jobs.”[1]  He waited for workers to take them back.  Also the employee hauled materials [for] “test bombs.”  In addition, you provided numerous medical records relating to the employee’s medical treatment while he was an employee of “Mason & Hanger-Silas Mason Co., Inc.”  Specifically, one report, dated July 31, 1969, for a right index finger tip injury included the place of injury or illness on Line 1 noted as “East Gate of Line 1.” 

You provided a copy of the employee’s death certificate showing he died on January 4, 1990, due to conditions including metastatic carcinoma with an unknown primary.  The employee was survived by a spouse, your mother, who subsequently died on June 22, 1993.  In addition, you provided copies of your birth certificates to show that you are a child of the employee, and marriage certificates to show name change ([Claimant #2] and [Claimant #3]).

The file was referred to the National Institute for Occupational Safety and Health for radiation dose reconstruction.  Effective June 19, 2005, certain employees of the IAAP were added as members of the Special Exposure Cohort (SEC) based on work performed for the Department of Energy or the Atomic Energy Commission, for the time period March 1949 through 1974.  70 Fed. Reg. 37409 (June 29, 2005).

On November 8, 2005, the Denver district office issued a recommended decision to accept your claims based on the condition of metastatic carcinoma of the spinal cord, with the lung and/or kidney as probable primary sites, concluding that you are a surviving child and each of you are entitled to $25,000 (one-sixth of $150,000).

On November 21 ([Claimant #3]) and December 30, 2005 ([Claimant #1], [Claimant #2], [Claimant #4], [Claimant #5], and [Claimant #6]), the Final Adjudication Branch received written notification from you indicating that you waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision.

FINDINGS OF FACT

1. On January 22 and April 5, 2002, you filed claims for survivor compensation under EEOICPA.

2. The employee worked at the Iowa Ordnance Plant on Line One or Atomic Energy Commission operations at the Firing Site Area in excess of 250 days, between September 14, 1951 and September 8, 1988.

3. The employee was diagnosed with metastatic carcinoma spinal cord tumor, with primary sites noted as likely the kidney and/or the lung on November 28, 1989.

4. The employee contracted the cancer after beginning employment at a DOE facility.

5. The employee died on January 4, 1990 and was survived by a spouse who is now deceased.

6. Each of you is a surviving child of the employee.

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the Final Adjudication Branch may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  All of you waived your right to file objections to the findings of fact and conclusions of law in the recommended decision.

Pursuant to the authority granted by 42 U.S.C. § 7384q, and effective June 19, 2005, as provided for under 42 U.S.C. § 7384l(14)(C), the following class of employees was added to the Special Exposure Cohort: [e]mployees of the Department of Energy (DOE) or DOE contractors or subcontractors employed by the Iowa Army Ammunition Plant, Line 1, during the period March 1949 through 1974 and who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with workdays within the parameters (excluding aggregate work day requirements) established for other classes of the employees included in the SEC.  70 Fed. Reg. 37409 (June 29, 2005).  Because your claim was filed prior to June 20, 2005, the presumption exists that the employee performed Atomic Energy Commission work.  See EEOICPA Bulletin No. 05-06 (issued Sept. 6, 2005).

The sum of the employment evidence including information from the Department of Energy, medical records you submitted, and your statement that the employee worked on Line One and at the Firing Test Site (Atomic Energy Commission operations), confirms that the employee worked at the Iowa Ordnance Plant (also known as the IAAP) on Line One or performing Atomic Energy Commission operations, between September 14, 1951 and September 8, 1988.  The employee worked in excess of 250 days at the IAAP on Line One or in Atomic Energy Commission activities from September 14, 1951 to September 8, 1988.  Such employment qualifies the employee for SEC status.

As a member of the Special Exposure Cohort, who was diagnosed with metastatic carcinoma spinal cord tumor, with primary sites noted as likely the kidney and/or the lung, which qualifies as a specified cancer, 20 C.F.R. § 30.5(ff)(1) and (4), the employee is a “covered employee with cancer.”  42 U.S.C. § 7384l(9)(A).  You are each a surviving child of the employee under 42 U.S.C. § 7384s(e)(1)(B).

Accordingly, you are each entitled to compensation in the amount of $25,000 (one-sixth of $150,000.00) pursuant to 42 U.S.C. § 7384s(a)(2).

Washington, DC

Rosanne M. Dummer

Hearing Representative

[1]   Based on information provided by a Certified Health Physicist for the Division of Energy Employees Occupational Illness Compensation, Line 1 is used in the Special Exposure Cohort designation at the Iowa Army Ammunition Plant to mean Atomic Energy Commission (AEC) operations.  Other areas that were involved in AEC operations that were not Line 1 include: Yard C, Yard G, Yard L, Firing Site Area, Burning Field “B” and Storage Sites for Pits and Weapons including Buildings 73 and 77.

EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003)

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.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claims for benefits are denied.

STATEMENT OF THE CASE

On April 11, 2002, [Claimant 1] filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that he was the son of [Employee], who was diagnosed with pharyngeal cancer.  An additional claim followed thereafter from [Claimant 2] on October 20, 2002.  [Claimant 1] also completed a Form EE-3, Employment History, indicating that [Employee] worked for Standard Oil Company, from 1950 to 1961; the State of Alaska as Deputy Director of Veterans Affairs, from 1961 to 1964; the State of Alaska Department of Military Affairs, Alaska Disaster Office, from 1965 to 1979 (where it was believed he wore a dosimetry badge); and, for the American Legion from 1979 to 1985. 

In correspondence dated June 24, 2002, a representative of the Department of Energy (DOE) indicated that they had no employment information regarding [Employee], but that he had been issued film badges at the Amchitka Test Site on the following dates:  October 28, 1965; September 30, 1969; and, September 21, 1970.  You also submitted a completed Form EE-4 (Employment Affidavit) signed by Don Lowell, your father’s supervisor at the State of Alaska, Department of Public Safety, Division of Civil Defense.  According to Mr. Lowell, your father was a radiological officer for the State of Alaska and accompanied him to Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969, as a representative of the State of Alaska. 

Additional documentation submitted in support of your claim included copies of your birth certificates, a marriage certificate documenting [Name of Claimant 2 at Birth]‘s marriage to [Husband], and the death certificate for [Employee], indicating that he was widowed at the time of his death on May 10, 1993.  In addition, you provided medical documentation reflecting a diagnosis of squamous cell carcinoma of the pharyngeal wall in November 1991.

On November 8, 2002, the Seattle district office issued a recommended decision that concluded that [Employee] was 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 cancer of the hypopharynx, 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 eligible survivors of [Employee] as outlined in § 7384s(e)(3) of the Act, and that you were each entitled to compensation in the amount of $75,000 pursuant to § 7384s(a)(1) and (e)(1) of the EEOICPA.  See 42 U.S.C. §§ 7384s(a)(1) and (e)(1).

On December 20, 2002, the Final Adjudication Branch issued a Remand Order in this case on the basis that the evidence of record did not establish that [Employee] was a member of the “Special Exposure Cohort,” as required by the Act.  The Seattle district office was specifically directed to determine whether the Department of Energy and the State of Alaska, Department of Public Safety, Division of Civil Defense, had a contractual relationship. 

In correspondence dated January 17, 2003, Don Lowell elaborated further on your father’s employment and his reasons for attending the nuclear testing on Amchitka Island.  According to Mr. Lowell, the Atomic Energy Commission (AEC) invited the governors of Alaska to send representatives to witness all three tests on Amchitka Island (Longshot, Milrow, and Cannikin).  As such, [Employee] attended both the Longshot and Milrow tests as a guest of the Atomic Energy Commission, which provided transportation, housing and food, and assured the safety and security of those representatives. 

On February 4, 2003, the district office received an electronic mail transmission from Karen Hatch, Records Management Program Officer at the National Nuclear Security Agency.  Ms. Hatch indicated that she had been informed by the former senior DOE Operations Manager on Amchitka Island that escorts were not on the site to perform work for the AEC, but were most likely there to provide a service to the officials from the State of Alaska.

In correspondence dated February 11, 2003, a representative of the State of Alaska, Department of Public Safety, Division of Administrative Services, indicated that there was no mention of Amchitka or any sort of agreement with the Department of Energy in [Employee]‘s personnel records, but that the absence of such reference did not mean that he did not go to Amchitka or that a contract did not exist.  He further explained that temporary assignments were not always reflected in these records and suggested that the district office contact the Department of Military and Veterans Affairs to see if they had any record of an agreement between the State of Alaska and the DOE.  By letter dated March 13, 2003, the district office contacted the Department of Military and Veterans Affairs and requested clarification as to [Employee]‘s employment with the State of Alaska and assignment(s) to Amchitka Island.  No response to this request was received.

On April 16, 2003, the S eattle district office recommended denial of your claims.  The district office concluded that you did not submit employment evidence as proof that [Employee] was a member of the “Special Exposure Cohort” as defined by § 7384l(14)(B) of the Act, as the evidence did not establish that he had been present at a covered facility as defined under § 7384l(12) of the Act, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under § 7384l(11) of the Act, during a covered time period.  See 42 U.S.C. § 7384l(11), (12).  The district office further concluded that you were not entitled to compensation as outlined under § 7384s(e)(1) of the Act.  See 42 U.S.C. § 7384s(e)(1). 

FINDINGS OF FACT

1. On April 11 and October 20, 2002, [Claimant 1] and [Claimant 2], respectively, filed claims for survivor benefits under the EEOICPA as the children of [Employee].

2. [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx.

3. [Employee] was employed by the State of Alaska, Civil Defense Division, and was present on Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969.   

4. [Employee]‘s employment with the State of Alaska, Civil Defense Division, on assignment to Amchitka Island, Alaska, was as a representative of the governor of Alaska.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on April 16, 2003.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a). 

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

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

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

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

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

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

 

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

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

The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the State of Alaska as a prime contractor for work on Milrow and Cannikin.  The work to be performed under that contract consisted of police protection.

According to Don Lowell, [Employee]‘s supervisor at the time of his assignment to Amchitka Island, your father was not an employee of any contractor or the AEC at the time of his visit to Amchitka Island.  Rather, he was an invited guest of the AEC requested to witness the atomic testing as a representative of the governor of Alaska. 

The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island for the sole purpose of witnessing the atomic testing as a representative of the governor of Alaska.  While the DOE indicated that [Employee] was issued a dosimetry badge on three occasions, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee.  Therefore, [Employee]‘s presence on Amchitka Island was to perform work for the State of Alaska, as a representative of the governor, and not pursuant to a contract between the DOE and the State of Alaska. 

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

Although you submitted medical evidence to show a covered illness manifested by squamous cell carcinoma of the hypopharynx, the evidence of record is insufficient to establish that [Employee] engaged in covered employment.  Therefore, your claims must be denied for lack of proof of covered employment under the EEOICPA.

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

EEOICPA Fin. Dec. No. 37277-2006 (Dep’t of Labor, June 27, 2006)

NOTICE OF FINAL DECISION

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim is accepted for $150,000 under Part B of the Act and medical benefits for colon cancer under Part B and Part E of the Act.  Your claim for pancreatic cancer is denied under Part B and deferred pending further development under Part E of the Act. 

STATEMENT OF THE CASE

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

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

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

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

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

On February 22, 2006, the Seattle district office issued a recommended decision to accept your claim concluding that you were entitled to compensation in the amount of $150,000 and medical benefits.  On March 8, 2006, the Final Adjudication Branch received your written confirmation that you waived your right to object to any of the findings of fact and/or conclusions of law contained in the recommended decision.

FINDINGS OF FACT

1.  On October 17, 2002, you filed a Form EE-1 and a Request for Review by Physicians Panel for colon cancer and pancreatic cancer.

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

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

CONCLUSIONS OF LAW

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

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

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

You were an employee of Department of Energy (DOE) contractors at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, you are a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2).

Therefore, you are entitled to medical benefits for colon cancer effective October 17, 2002.  42 U.S.C. §§ 7384t, 7385s-8.

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

Jacksonville, Florida

Mark Stewart

Hearing Representative

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

EEOICPA Fin. Dec. No. 48688-2005 (Dep’t of Labor, September 14, 2005)

REMAND ORDER

This is a 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.  For the reasons set forth below, the case is remanded to the Cleveland district office.    

STATEMENT OF THE CASE

On July 23 2005, the Cleveland district office issued a recommended decision which concluded that you were entitled to benefits under 42 U.S.C. § 7384s of the EEOICPA, because your  employment at the Iowa Army Ammunition Plant (IAAP) qualified you for benefits as a member of a Special Exposure Cohort (SEC).

On your Form EE-3 (Employment History), you indicated that you worked for Silas Mason at the IAAP from October 1966 to December 1974.  You further indicated that you performed duties at the IAAP on Lines 3A, 6 and 7. 

Effective June 19, 2005, the following class of employees was added to the SEC: employees of the DOE or DOE contractors or subcontractors employed by the Iowa Ordnance Plant (Iowa Army Ammunition Plant), Line 1, during the period March 1949 through 1974 who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees in the SEC.  70 Fed. Reg. 37409 (June 29, 2005)  This class of employee eligible for the SEC designation has been further described to include all workers and activities involved in AEC operations at IAAP.

Duties performed on Line 3A at the IAAP involve the loading, assembling and packing operations for artillery and mortar rounds.  Duties performed on Line 6 at the IAAP involve the production, storage and shipping of detonators, relays, and hand grenade fuses.  Duties performed on Line 7 at the IAAP involve assembling and pack operation where artillery primers, rocket igniters and time fuses were assembled for World War II and the Korean War.  The Department of Energy (DOE) verified your employment at the IAAP from October 12, 1966 through December 6, 1974.  There is no evidence to support that the duties performed on Lines 3A, Line 6 or Line 7 at the IAAP involve Atomic Energy Commission (AEC) activities as required by the IAAP SEC designation.  Your employment during the relevant time period was on Lines 3A, 6 and 7 at the IAAP and cannot be considered in calculating the required 250 days needed for IAAP SEC status.  You have not alleged employment at IAAP in AEC operations.

Therefore, the case must be remanded to the district office for further development of employment evidence that might establish your employment for 250 days on AEC activities at the IAAP during the relevant time period. If no such evidence is available, the entire case file must be forwarded the National Institute for Occupational Safety and Health (NIOSH) in order to reconstruct the radiation dose received in the course of employment.  Upon completion of the NIOSH Dose Reconstruction, the district office will determine whether the employee’s cancer was “at least likely as not” due to exposure to radiation at a DOE facility.

Therefore, the final decision is vacated and the case is returned to the district office for further development.

Washington, DC

Curtis Johnson

Hearing Representative

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

NOTICE OF FINAL DECISION

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

Statement of the Case

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

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

January 29, 1985.

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

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

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

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

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

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

You indicated on the EE-3 (Employment History) that you did not know whether your father wore a dosimetry badge.  According to the Department of Energy sponsored report entitled Exposure Assessment Project at Paducah Gaseous Diffusion Plant, released in December 2000, Section 4.2.1.1 External Dosimeters states:   “Prior to 1961, select groups of employees considered to have the potential for radiation exposures were issued film badges.  After [July 1] 1960, all employees were issued two combination security/film badges.”  Because the period of your father’s employment fell within the time that some or all employees at the Paducah GDP were issued dosimetry badges, I find that the employee’s employment at the Paducah GDP satisfies the requirements under § 7384l(14)(A) of the Act.  42 U.S.C. §7384l(14)(A).

Findingsof Fact

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

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

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

20 C.F.R. § 30.5(dd)(5)(iii)(M).

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

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

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

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

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

Conclusionsof Law

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

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

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

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

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

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim is accepted in part and deferred in part.  A determination of your eligibility for wage-loss and impairment benefits is pending further development by the district office.  A copy of this decision has been provided to your authorized representative.

STATEMENT OF THE CASE

On October 5, 2005, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for breast cancer.  A pathology report and other supporting medical records establish that you were diagnosed with cancer of the right breast on April 3, 1985.  On the Form EE-1, you indicated that you were a member of the Special Exposure Cohort (SEC).

On the Form EE-3, Employment History, you stated you were employed as a laboratory worker by Tenessee Eastman Corporation at the Y-12 plant for the period of November 1, 1942 through August 6, 1945.  The district office verified that you worked for Tenessee Eastman Corporation at the Y-12 plant for the period of November 22, 1944 through October 31, 1945 and were issued dosimetry badge number [Badge number]. 

This period of employment equates to 49 work weeks.  You submitted a contemporaneous copy of the Tennessee Eastman Corporation’s Employees’ Guidebook that states that the schedule at the Y-12 plant was six eight-hour shifts per week.  This six day workweek was substantiated in a letter from [Employee’s co-worker], a chemist at the Y-12 plant during 1944 and 1945. [Employee’s co-worker] asserted that this work schedule was necessitated by a 24 hours a day 7 days a week effort to produce every possible milligram of U-235. 

The Department of Energy provided evidence that your duties at Y-12 were in the laboratory as an assistant lab technician and as an analyst.  The letter from [Employee’s co-worker] confirmed that this lab work involved applying analytic procedures required to account for U in the process streams in the plant and analyses for the total uranium content of various samples.

On March 2, 2006 the Jacksonville district office issued a recommended decision to accept your claim for compensation in the amount of $150,000.00 and medical benefits for cancer of the right breast.  This decision was based on a finding by the district office that you are a member of the SEC and that you were diagnosed with a specified cancer.

On March 8, 2006 the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.  

FINDINGS OF FACT

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

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

3.  You were employed at the Y-12 plant from November 22, 1944 through October 31, 1945    and while employed you worked six eight hour shifts per week.

4.  You were employed in the laboratory where your duties involved radiological activities and you were issued a dosimetry badge in 1944.

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

CONCLUSIONS OF LAW

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

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

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked in uranium enrichment operations or other radiological activities at the Y-12 facility in Oak Ridge, Tennessee from March 1943 through December 1947 and who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.  EEOICPA Bulletin No. 06-04 (issued November 21, 2005).

The evidence shows that you worked at the Y-12 facility from November 22, 1944 through October 31, 1945 and were assigned a work schedule of six eight hour shifts per week during this employment. This employment equals more than 250 workdays at Y-12 between March 1943 and December 1947.  You worked in a job that involved analyzing uranium content and accounting for uranium in the process stream. You wore a dosimetry badge during the time of your employment. This employment qualifies as a radiological activity. You qualify as a member of the SEC.  42 U.S.C. § 7384l(14)(C)(i).

Your breast cancer is a specified cancer as defined by the Act and implementing regulations.  42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(ff)(5)(iii)(B) (2005). 

Therefore, I conclude that you are entitled to $150,000 and medical benefits effective October 5, 2005, for breast cancer, pursuant to the Act.  42 U.S.C. §§ 7384s(a), 7384t.

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

You were an employee of a DOE contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, you are a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2). 

Therefore, I hereby conclude that you are entitled to medical benefits for breast cancer under Part E of the Act effective October 5, 2005.  42 U.S.C. § 7385s-8.

Jacksonville, FL

Douglas J. Helsing

Hearing Representative

EEOICPA Fin. Dec. No. 72816-2007 (Dep’t of Labor, April 7, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the recommended decision to deny the claims is reversed and both claims for survivor benefits under Part B of EEOICPA are accepted. 

STATEMENT OF THE CASE

On October 11, 2005, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA as the children of [Employee], hereinafter referred to as the employee.  [Claimant #1 and Claimant #2] identified gall bladder and skin cancers and gastrointestinal hemorrhage as the claimed conditions for the employee.  On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not covered children as defined under Part E of EEOICPA.  Therefore, their claims for survivor benefits under Part E were denied.

[Claimant #1] stated on the Form EE-3 that the employee was employed as a carpenter at the Nevada Test Site[1] from 1940 to 1961.  The Department of Energy (DOE) verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953, and from April 30, 1957 to July 19, 1957 at the Nevada Test Site. 

[Claimant #1 and Claimant #2] submitted a death certificate, which indicated the employee died on February 5, 1987, that the cause of death was gastrointestinal hemorrhage, and that he was widowed at the time of his death.  A death certificate for [Employee’s Child], father’s name was [Employee], was submitted.  [Claimant #1] submitted a birth certificate, which indicated the employee was her father.  A birth certificate for [Claimant #2] indicated the employee was his father.  An Order for Name Change dated May 16, 1979 indicated that [Claimant #2]‘s name was changed to [Claimant #2].

A March 10, 1987 autopsy report, from Drs. Stephen Ovanessoff and Roy I. Davis, indicated a final autopsy diagnosis of hepatocellular carcinoma with direct invasion of the gallbladder.

To determine the probability of whether the employee sustained his cancer in the performance of duty, the district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  The dose reconstruction was based on the periods of employment at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957.  On July 3, 2007 and August 12, 2007, respectively, [Claimant #1 and Claimant #2] signed Form OCAS-1 indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information that they provided to NIOSH.

The district office received the final NIOSH Report of Dose Reconstruction dated August 24, 2007.  The district office used the information provided in this report to determine that there was a 15.57% probability that the employee’s liver cancer was caused by radiation exposure at the Nevada Test Site.

On August 31, 2007, the Seattle district office issued a recommended decision finding that the employee’s cancer was not “at least as likely as not” caused by employment at the Nevada Test Site.  Therefore, the district office concluded that [Claimant #1 and Claimant #2] were not entitled to compensation under Part B of EEOICPA.

OBJECTIONS

On October 10, 2007, FAB received [Claimant #2]‘s October 10, 2007 objection to the recommended decision and request for an oral hearing.  On January 8, 2008, a hearing was held to hear the objections of [Claimant #1 and Claimant #2].  However, the equipment to record the hearing malfunctioned and another hearing was held by telephone on February 20, 2008. 

During the January 8, 2008 hearing, [Claimant #2] submitted a four-page letter in support of his objections.  This letter was read at both the January 8, 2008 and February 20, 2008 hearings.  One of his objections was regarding the finding that [Claimant #1 and Claimant #2] were not “covered” children as that term is defined under Part E of EEOICPA.  With reference to this objection, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E.  Therefore, their claims for survivor benefits under Part E were denied.  After FAB has issued a final decision pursuant to 20 C.F.R. § 30.316, only the Director for Division of Energy Employees Occupational Illness Compensation may reopen a claim and return it to FAB for issuance of new decision.  20 C.F.R. § 30.320.  There is no intervening Director’s Order regarding [Claimant #1 and Claimant #2]‘s claims for survivor benefits under Part E of EEOICPA.  Therefore, no new final decision will be issued on their claims for benefits under Part E.

During the February 20, 2008 hearing, [Claimant #1] indicated that the employee lived on site during his employment at the Nevada Test Site.  In support of this statement, she indicated that the employee “made a custom or habit of staying at a camp site near his work place if the distance was too far to travel.”  In addition, she indicated that the employee had an old truck and that it was always breaking down.

Effective July 26, 2006, the Secretary of Health and Human Services designated certain employees of the Nevada Test Site in Mercury, Nevada as members of the Special Exposure Cohort (SEC), who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, based on work performed for the period from January 27, 1951 to December 31, 1962.

As noted above, DOE verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957 at the Nevada Test Site.  However, in a review of records from DOE a Personnel Action Slip from Reynolds Electrical and Engineering was found that indicated a date of hire of April 3, 1957.  A July 19, 1957 Radiation Exposure memo indicated that the employee was exposed to radiation from April 3, 1957 to June 30, 1957.  Based upon the foregoing information, the correct periods of employment are March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.  In addition, the following documents were submitted by DOE:

1. A March 12, 1953 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
2. A May 3, 1957 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
3. A June 17, 1957 accident report indicated a mailing address in Mercury, Nevada.

Pursuant to EEOICPA Bulletin No. 06-16 (issued September 12, 2006), if the employee was present (either worked or lived) on site at the Nevada Test Site for a 24-hour period in a day, the claims examiner is to credit the employee with the equivalent of three (8-hour) work days.  If there is evidence that the employee was present on site at the Nevada Test Site for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement for the SEC.  In addition, the Nevada Test Site includes the town of Mercury, which is located in the southwest corner of the site.  

The preponderance of evidence of record establishes that the employee lived and worked at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.  These periods represent a total of 101 work days.  Crediting the employee with three days of exposure for each day worked, the employee would have had 303 days of exposure during the periods from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.

There were other objections to the denial of survivor benefits under Part B of EEOICPA; however, they are not being addressed because the evidence of record is sufficient to accept [Claimant #1 and Claimant #2]‘s claims for survivor benefits under Part B of EEOICPA.

On their claims for survivor benefits, [Claimant #1 and Claimant #2] indicated that neither they nor the employee had filed any lawsuits or received any settlements or awards for the employee’s claimed condition.  In addition, [Claimant #1 and Claimant #2] indicated that there are no other living children of the employee.

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

FINDINGS OF FACT

1. [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA.

2. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E of EEOICPA. 

3. The employee was employed and lived at the Nevada Test Site for at least 250 workdays, by Reynolds Electrical and Engineering, from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957. 

4. The employee was first diagnosed liver cancer on February 5, 1987.

5.  The employee was widowed on his February 5, 1987 date of death.

6. [Claimant #1 and Claimant #2] are the surviving children of the employee.

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

CONCLUSIONS OF LAW

Section 30.316(b) of the EEOICPA regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.”  20 C.F.R. § 30.316(b).  The undersigned has reviewed the record, including [Claimant #1 and Claimant #2]‘s objections, and concludes that no further investigation is warranted.

On July 12, 2006, the Secretary of Health and Human Services designated the following class of employees as an addition to the SEC:  “Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site in Mercury, Nevada from January 27, 1951 to December 31, 1962 and who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.”  This designation became effective July 26, 2006.  See 71 Fed. Reg. 44298 (August 4, 2006).

The evidence of record supports that the employee worked for a DOE contractor and lived at the Nevada Test Site in excess of 250 workdays from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957, which is during the relevant period of the SEC class.  This employment qualifies him for inclusion within the SEC.  As a member of the SEC who was diagnosed with liver cancer, which is a “specified cancer” pursuant to 20 C.F.R. § 30.5(ff) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), he meets the definition of a “covered employee with cancer.”  42 U.S.C. § 7384l(9).  [Claimant #1 and Claimant #2] are the employee’s only eligible surviving beneficiaries, as defined at 42 U.S.C. § 7384s(e)(1)(B).  As an eligible survivor of a “covered employee with cancer, I conclude that their claims for survivor benefits should be accepted and that [Claimant #1 and Claimant #2] are each entitled to $75,000.00 for a total of $150,000.00 in compensation benefits under Part B of EEOICPA.  

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

[1] The Nevada Test Site is a DOE facility from 1951 to present according to the DOE Facility List (http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/findfacility.cfm).

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

NOTICE OF FINAL DECISION

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

Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her  additional compensation in the amount of $125,000.00.

STATEMENT OF THE CASE

On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease.  The record includes a copy of [Employee]‘s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease.

[Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980.  DOE verified [Employee]‘s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

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

On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2.  Each claimed benefits as the surviving child of [Employee].

[Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname.  [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname.  The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].

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

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

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

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

Pharynx cancer is a specified cancer for SEC claims.  With regard to epiglottis cancer, the National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx.  20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA.  The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus.  The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer.

On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E.  The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer.  The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally.  Further, the district office concluded that a determination that a DOE contractor employee and qualified member of the SEC is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility, and since [Claimant #5]  was under the age of 18 at the time of [Employee]‘s death, she is the only eligible survivor under Part E and is entitled to compensation in the amount of $125,000.00.

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims. 

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

On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC.  The new SEC class became effective on July 22, 2007. 

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

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

The statute provides that if a determination has been made that a DOE contractor employee is entitled to compensation for an occupational illness under Part B, such determination shall be treated, for purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a).  Consequently, [Employee]‘s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility.  The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]‘s death.  As the employee would have been entitled to compensation for his covered illness under Part E; and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1).  [Claimant #5] was 17 years of age at the time of [Employee]‘s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00.  See 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(d).

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

Specified cancers

EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On December 12, 2001, the Seattle District Office issued a recommended decision concluding that the deceased covered employee was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA, and that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA as his survivor.  On December 17, 2001, the Final Adjudication Branch received written notification from you waiving any and all objections to the recommended decision.

The undersigned has reviewed the evidence of record and the recommended decision issued by the Seattle district office on December 12, 2001, and finds that:

In a report dated August 20, 1996, Dr. John Mues diagnosed the deceased covered employee with mixed squamous/adenocarcinoma of the lung.  The report states the diagnosis was based on the results of a thoracoscopy and nodule removal. Lung cancer is a specified disease as that term is defined in § 7384l(17)(A) of the EEOICPA and 20 CFR § 30.5(dd)(2) of the EEOICPA regulations.

You stated in the employment history that the deceased covered employee worked for S.S. Mullins on Amchitka Island, Alaska from April 21, 1967 to June 17, 1969.  Nancy Shaw, General Counsel for the Teamsters Local 959 confirmed the employment by affidavit dated November 1, 2001.  The affidavit is acceptable evidence in accordance with § 30.111 (c) of the EEOICPA regulations.

Jeffrey L. Kotch[1], a certified health physicist, has advised it is his professional opinion that radioactivity from the Long Shot underground nuclear test was released to the atmosphere a month after the detonation on October 29, 1965. He further states that as a result of those airborne radioactive releases, SEC members who worked on Amchitka Island, as defined in EEOICPA § 7384l(14)(B), could have been exposed to ionizing radiation from the Long Shot underground nuclear test beginning a month after the detonation, i.e., the exposure period could be from approximately December 1, 1965 through January 1, 1974 (the end date specified in EEOICPA, § 7384l(14)(B)).  He supports his opinion with the Department of Energy study, Linking Legacies, DOE/EM-0319, dated January 1997, which reported that radioactive contamination on Amchitka Island occurred as a result of activities related to the preparation for underground nuclear tests and releases from Long Shot and Cannikin.  Tables 4-4 and C-1, on pages 79 and 207, respectively, list Amchitka Island as a DOE Environmental Management site with thousands of cubic meters of contaminated soil resulting from nuclear testing.

The covered employee was a member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA and §§ 30.210(a)(2) and 30.213(a)(2) of the EEOICPA regulations.  This is supported by evidence that shows hewas working on Amchitka Island for S.S. Mullins during the potential exposure period, December 1, 1965 to January 1, 1974.

The covered employee died February 17, 1999.  Metastatic lung cancer was included as a immediate cause of death on the death certificate.

You were married to the covered employee August 18, 1961 and were his wife at the time of his death.  You are the eligible surviving spouse of the covered employee as defined in § 7384s of the EEOICPA, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012, 1371, December 28, 2001.[2]

The undersigned hereby affirms the award of $150,000.00 to you as recommended by the Seattle District Office.

Washington, DC

Thomasyne L. Hill

Hearing Representative

[1] Jeffrey L. Kotch is a certified health physicist employed with the Department of Labor, EEOICP, Branch of Policies, Regulations and Procedures.  He provided his professional opinion in a December 6, 2001 memorandum to Peter Turcic, Director of EEOICP.

EEOICPA Fin. Dec. No. 2597-2002 (Dep’t of Labor, July 8, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On June 6, 2003, the Jacksonville district office issued a decision recommending that you are entitled to medical benefits effective April 28, 2003 for colon cancer.

The district office referred the claims for skin cancer and cancer of the pyriform sinus to the National Institute for Occupational Safety and Health (NIOSH).  However, the pyriform sinus is part of the hypo pharynx.  EEOICPA Bulletin No. 02-28, Effective September 5, 2002, further defines that the hypo pharynx is one of three parts of the pharynx.  The pharynx is a Special Exposure Cohort (SEC) cancer as defined in § 7384l(17)(A) of the Act, and § 30.5(dd)(5)(iii)(E) of the implementing regulations.  42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(5)(iii)(E).  Therefore, I find that [Employee] has cancer of the pharynx, and is entitled to medical benefits for the treatment of pharynx cancer.  As the pyriform sinus (pharynx cancer) is an SEC cancer, there is no need for dose reconstruction by NIOSH.  The condition of skin cancer remains for dose reconstruction at NIOSH.

On June 16, 2003, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.  I have reviewed the record on this claim and the recommended decision issued by the district office on June 6, 2003.  I find that you are a member of the Special Exposure Cohort, as that term is defined in § 7384l(14)(A) of the Act; and that your colon cancer and pharynx (pyriform sinus) cancer are specified cancers under § 7384l(17)(A) of the Act and §§ 30.5(dd)(5)(iii)(M) and (E) of the implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A), 20 C.F.R. §§ 30.5(dd)(5)(iii)(M), 30.5(dd)(5)(iii)(E).

A claimant is entitled to compensation one time in the amount of $150,000 for a disability from a covered occupational illness.  Since you were previously awarded $150,000 for lung cancer, this decision is for medical benefits only.  I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to medical benefits effective April 28, 2003 for colon cancer, and effective August 9, 2001 for pharynx cancer (pyriform sinus), pursuant to § 7384t of the Act.  42 U.S.C. § 7384t.

Jacksonville, FL

July 8, 2003

Jeana F. LaRock

District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 23398-2004 (Dep’t of Labor, September 10, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On February 21, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on uterine carcinoma.  Medical documentation submitted in support of your claim shows that you were diagnosed as having endometrial adenocarcinoma on November 27, 2001.

You also provided a Form EE-3 (Employment History) in which you state that you worked for the Carbide and Carbon Chemical Corporation at the Oak Ridge Gaseous Diffusion Plant (GDP) from July 1948 to October 19, 1953, and for the Goodyear Atomic Corporation at the Portsmouth GDP from September 1, 1954 to August 1, 1955.  You also report that you did not wear a dosimetry badge at either facility.  A representative of the Department of Energy (DOE) verified that you worked at the Oak Ridge GDP from April 12, 1948, to October 19, 1953, and at the Portsmouth GDP from September 7, 1954, to September 15, 1955.  The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to the present and the Portsmouth GDP is recognized as a covered DOE facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy, Facility List.

Based on covered employment of more than 250 workdays at the Oak Ridge and Portsmouth GDPs, in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges, you meet the requirements for Special Exposure Cohort membership.  See 42 U.S.C. § 7384l(14).  However, because the cancer with which you had been diagnosed, endometrial carcinoma, is not a specified cancer under 42 U.S.C. § 7384l(17), your case was referred to NIOSH in order to further consider your entitlement to compensation under the Act.

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 20 C.F.R. § 30.115.  On June 16, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On June 23, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the Cleveland district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of your cancer and reported in its recommended decision that there was a 7.57% probability that your cancer was caused by radiation exposure at the Oak Ridge and Portsmouth GDPs.

On June 29, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Oak Ridge and Portsmouth GDPs.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

FINDINGS OF FACT

1. You filed a claim for benefits on February 21, 2002.

2. You were employed at the Oak Ridge GDP and at the Portsmouth GDP, covered DOE facilities, from April 12, 1948, to October 19, 1953, and September 7, 1954, to September 15, 1955, respectively.

3. You were diagnosed as having endometrial adenocarcinoma on November 27, 2001.

4. The NIOSH Interactive RadioEpidemiological Program indicated a 7.57% probability that your cancer was caused by radiation exposure at the Oak Ridge GDP and at the Portsmouth GDP.

5. Your cancer was not “at least as likely as not” related to your employment at a DOE facility.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on June 29, 2004.  I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction dated June 8, 2004.  NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data, as well as information recorded during the computer-assisted telephone interview.  See 42 C.F.R. §§ 82.25 and 82.26.

Using the information provided in the Report of Dose Reconstruction for prostate cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 7.57% probability that your cancer was caused by radiation exposure while employed at the Oak Ridge and Portsmouth GDPs.  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 7.57% probability.

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer”, because your cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Oak Ridge and Portsmouth GDPs.  See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

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

Cleveland, OH

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 26618-2006 (Dep’t of Labor, June 27, 2006)

NOTICE OF FINAL DECISION

This is a decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claims are accepted for $75,000 each, for a total of $150,000.

STATEMENT OF THE CASE

On November 27, 2001, your late father, [Employee], hereinafter referred to as “the employee,” filed a Form EE-1, Claim for Benefits, for his prostate cancer, kidney cancer, and lung cancer.  Unfortunately, he died on March 12, 2002, prior to the adjudication of his claim.  On April 5, 2002, you both filed a Form EE-2, Claim for Survivor Benefits, for the employee’s prostate cancer, kidney cancer, and lung cancer.

An April 22, 1981 pathology report, signed by W. Allen Loy, M.D., establishes that the employee was diagnosed with urothelial carcinoma (bladder cancer).  A June 9, 1995 pathology report (based on a June 6, 1995 biopsy), signed by Rebecca L. Foust, M.D., establishes that the employee was diagnosed with carcinoma of the left renal pelvis.  An October 20, 2001 discharge summary, signed by William Hall, M.D., establishes that the employee was diagnosed with cancer of the right lung.[1] 

On the Form EE-3, Employment History, the employee stated he was employed as a development engineer by Tennessee Eastman Corporation (TEC) and Union Carbide Corporation Nuclear Division at the Y-12 plant in Oak Ridge, Tennessee, from 1944 to 1963.  The district office verified that the employee worked for Tennessee Eastman Corporation at the Y-12 plant from March 6, 1944 to July 1, 1963.  The Oak Ridge Institute for Science and Education (ORISE) database shows the employee worked as a chemist from March 6, 1944 to August 5, 1944; as a shift foreman from August 6, 1944 to March 22, 1947; and as a chemist from March 23, 1947 to May 31, 1949.

The October 20, 2003 draft summary of the Computer Assisted Telephone Interview (CATI) performed by NIOSH provides additional information about the employee’s job duties.  You stated during the CATI that in 1944, he worked in building 9202.  He was involved in uranium preparation and salvage.  He also managed the stable isotope assay laboratory.  It appears that he managed the laboratory starting in 1949. 

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort, (SEC) based on work performed in uranium enrichment, or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

In support of your claim for survivorship, you submitted the death certificates of the employee, which showed that he died on March 12, 2002, and that he was a widower at the time of his death.  In addition, you both submitted your birth certificates showing that you are the children of the employee, and [Claimant #2] submitted her marriage certificate documenting her name change.

On March 21, 2006, the Jacksonville district office issued a recommended decision, concluding that you were each entitled to compensation in the amount of $75,000 under Part B, for a total of $150,000.  The Final Adjudication Branch received written notification that you each waived any and all objections to the recommended decision. 

FINDINGS OF FACT

1. On November 27, 2001, your late father, [Employee], hereinafter referred to as “the employee, filed a Form EE-1, Claim for Benefits, for his prostate cancer, kidney cancer, and lung cancer.  Unfortunately, he died on March 12, 2002, prior to the adjudication of his claim.  On April 5, 2002, you both filed a Form EE-2, Claim for Survivor Benefits, for the employee’s prostate cancer, kidney cancer, and lung cancer.

2. The employee was diagnosed with bladder cancer on April 22, 1981 (more than 5 years after his first exposure); cancer of the renal pelvis on June 6, 1995; and cancer of the right lung on October 20, 2001.  Cancer of the renal pelvis, as a part of the ureter, is considered by our office to be a form of bladder cancer rather than a form of kidney cancer.[2]

3. The employee was employed by Tennessee Eastman Corporation at the Y-12 plant in Oak Ridge, Tennessee, from March 6, 1944 to July 1, 1963.  The employee worked as a chemist from March 6, 1944 to August 5, 1944; as a shift foreman from August 6, 1944 to March 22, 1947; and as a chemist from March 23, 1947 to May 31, 1949.  Given that he worked as a chemist both before and after the period he worked as a shift foreman, it can be assumed that his duties as a shift foreman were similar to those performed as a chemist.

4. You are the employee’s children.  The employee was widowed at the time of his death.

CONCLUSIONS OF LAW

You each meet the definition of a survivor under Part B of the Act.  42 U.S.C. § 7384s(e)(3)(A).

On June 5, 2006, the DEEOIC issued EEOICPA Bulletin No. 06-11, which provided supplemental guidance for processing claims for the Special Exposure Cohort (SEC) class for the Y-12 plant.  That bulletin establishes that the primary function of Y-12 during 1943 to 1947 was to perform uranium enrichment using a calutron.  The employee’s job duties as a chemist and shift foreman involved processes associated with uranium enrichment operations, including uranium preparation and salvage.  (Although the employee’s work as a manager of the isotope laboratory occurred after 1947, it provides a clearer picture of what his duties may have been as a chemist.)  In addition, building 9202 was a Y-12 plant location involving uranium enrichment operations. [3]

The evidence shows that the employee worked at the Y-12 plant from March 6, 1944 through December 31, 1947, which equals more than 250 days during the SEC class period, and that he was involved in uranium enrichment operations and other radiological activities.[4]  Therefore, the employee qualifies as a member of the SEC.  As a member of the SEC who was diagnosed with lung cancer and bladder cancer, which are “specified cancers” pursuant to the Act and constitute “occupational illnesses” under the Act, the employee or the employee’s survivor(s) qualify for benefits as a “covered employee with cancer.”  42 U.S.C. §§ 7384l(17)(A), 7384l(15), 7384l(9); 20 C.F.R. §§ 30.5(ff)(2), 30.5(ff)(5)(iii)(K) (2005).  Therefore, I conclude that you are entitled to $75,000 each, for a total of $150,000, for the employee’s lung cancer and bladder cancer, pursuant to the Act.  42 U.S.C. § 7384s(a).

In addition, since the employee filed the claim for benefits prior to his death, you are entitled to seek reimbursement for out-of-pocket medical expenses and/or payment of any outstanding medical expenses for the employee’s lung cancer, bladder cancer, and cancer of the renal pelvis from November 27, 2001 (the date he filed his claim) to March 12, 2002 (the date of his death).

Jacksonville, Florida

Mark Stewart

Hearing Representative

[1] Although a pathology report shows that cancer was discovered in the employee’s prostate on May 27, 1981, it is unclear whether the cancer was a primary cancer or a secondary cancer metastasized from the bladder.  However, further development is not necessary to adjudicate the claim. 

EEOICPA Fin. Dec. No. 50214-2005 (Dep’t of Labor, March 2, 2005)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On October 16, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) claiming benefits as the spouse of [Employee].  You identified the diagnosed condition being claimed as liver cancer (hepatocellular carcinoma).  The medical documentation of record shows that your husband was diagnosed with liver cancer on September 15, 2003.  Those records also show findings of cirrhosis of the liver.  You also indicated that your husband was a member of the Special Exposure Cohort (SEC) based on his employment at the gaseous diffusion plant in Portsmouth, OH.

You submitted a copy of your marriage certificate which shows that you and your husband were wed on February 16, 2000.  You also submitted a copy of your husband’s death certificate showing that he died on September 20, 2003, and identifying you as his surviving spouse.  The death certificate shows the cause of death as respiratory failure due to cirrhosis of the liver and cancer of the liver.

You also provided a Form EE-3 (Employment History) in which you stated that your husband worked for GAT, Lockheed Martin Marietta, and USEC from April 19, 1976, to September 20, 2003.  You did not indicate the location of your husband’s employment.  The Department of Energy (DOE) verified that he worked at the Portsmouth Gaseous Diffusion Plant (GDP) from April 19, 1976, to September 20, 2003.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.

To determine the probability of whether your husband sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  On November 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On December 9, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your husband’s cancer and reported in its recommended decision that there was a 42.16% probability that liver cancer was caused by radiation exposure at the Portsmouth GDP.

On December 20, 2004, the Cleveland district office recommended denial of your claim for compensation finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that your husband does not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  The district office noted that your husband’s liver cancer cannot be a “specified cancer” because cirrhosis is also indicated by the evidence of record.  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s. 

FINDINGS OF FACT

1.      You filed a claim for benefits on October 16, 2003.

2.      Your husband worked at Portsmouth GDP, a covered DOE facility, from April 19, 1976, to September 20, 2003.

3.      Your husband was diagnosed with liver cancer on September 15, 2003.  The medical evidence also indicated findings of cirrhosis.

4.      The NIOSH Interactive RadioEpidemiological Program indicated a 42.16% probability that your husband’s liver cancer was caused by radiation exposure at the Portsmouth GDP.

5.      Your husband’s cancer was not at least as likely as not related to his employment at a DOE facility

6.      You are the surviving spouse of [Employee] and were married to him for at least one year immediately prior to his death.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on December 20, 2004.  I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

You filed a claim based on liver cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that your husband was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9).  The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility.  See 42 U.S.C. § 7384n(b).

Using the information provided in the Report of Dose Reconstruction for liver cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 42.16% probability that your husband’s cancer was caused by radiation exposure while employed at the Portsmouth GDP.  The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 42.16% probability.

You also claimed entitlement to compensation due to your husband’s status as a member of the SEC.  The FAB finds that the medical evidence of record indicates the presence of cirrhosis of the liver.  Based on that finding, your husband’s liver cancer cannot be considered a “specified cancer” as defined by 42 U.S.C. § 7384l(17)(A).  For that reason, although your husband’s employment is sufficient to establish that he is a member of the SEC, he cannot be considered to be a covered employee with cancer as defined by 42 U.S.C. § 7384l(9)(A).

Therefore, your claim must be denied because the evidence does not establish that your husband is a “covered employee with cancer,” because his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP.  Additionally, the evidence does not establish that your husband is a “covered employee with cancer,” based on SEC membership and liver cancer, because cirrhosis is indicated by the medical evidence of record.  See 42 U.S.C. § 7384l(1)(B), (9)(A) and (B), and (17)(A).

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

Cleveland, OH

Tracy Smart

Acting FAB Manager

Final Adjudication Branch

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

You also provided a Form EE-3 (Employment History) in which you state that you worked for Dynamic Industrial (Dycon) at the Portsmouth Gaseous Diffusion Plant (GDP), in Piketon, OH, as a pipefitter from January 1983 to November 1984 and from January 1985 to June 1985.  You also report that you worked for the Marley Cooling Tower Co. at the Portsmouth GDP during March 1985.  You also state that you wore a dosimetry badge while so employed.

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

The Final Adjudication Branch notes that you claimed benefits based on rectal cancer/colon cancer.  The medical evidence of record interchangeably refers to adenocarcinoma of the rectum and the colon.  Regardless of the term used, the evidence reveals only a single tumor located in the rectum.  For that reason, your claim is considered to be based on a single occurrence of cancer in your rectum.

Rectal cancer is considered to be colon cancer, which is a specified cancer under the Act, and the medical evidence of record establishes a diagnosis of rectal cancer.  Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer.  See 42 U.S.C. §§ 7384l(14)(A) and (17).

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

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

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

NOTICE OF FINAL DECISION

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

Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her  additional compensation in the amount of $125,000.00.

STATEMENT OF THE CASE

On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease.  The record includes a copy of [Employee]‘s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease.

[Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980.  DOE verified [Employee]‘s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

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

On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2.  Each claimed benefits as the surviving child of [Employee].

[Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname.  [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname.  The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].

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

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

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

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

Pharynx cancer is a specified cancer for SEC claims.  With regard to epiglottis cancer, the National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx.  20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA.  The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus.  The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer.

On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E.  The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer.  The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally.  Further, the district office concluded that a determination that a DOE contractor employee and qualified member of the SEC is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility, and since [Claimant #5]  was under the age of 18 at the time of [Employee]‘s death, she is the only eligible survivor under Part E and is entitled to compensation in the amount of $125,000.00.

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims. 

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

On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC.  The new SEC class became effective on July 22, 2007. 

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

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

The statute provides that if a determination has been made that a DOE contractor employee is entitled to compensation for an occupational illness under Part B, such determination shall be treated, for purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a).  Consequently, [Employee]‘s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility.  The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]‘s death.  As the employee would have been entitled to compensation for his covered illness under Part E; and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1).  [Claimant #5] was 17 years of age at the time of [Employee]‘s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00.  See 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(d).

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch