EEOICPA Covered Illnesses: Skin Cancer

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

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

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

Skin Cancer

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

from cancer.gov:
Skin cancer is the most common type of cancer. The main types of skin cancer are squamous cell carcinoma, basal cell carcinoma, and melanoma. Melanoma is much less common than the other types but much more likely to invade nearby tissue and spread to other parts of the body. Most deaths from skin cancer are caused by melanoma.

Procedure Manual:
page 239
c. Multiple Skin Cancers. When a claimant provides evidence that the covered employee had a relatively large number of skin cancers, the CE will proceed as follows.

(1) Each malignant skin neoplasm (e.g., basal or squamous cell cancer) will be considered as a separate primary cancer, unless it is noted in the medical record that the neoplasm is a metastatic lesion.

(2) For NIOSH dose calculations, the date of diagnosis and the location (e.g. arm, neck, back) of the skin cancer are important and should be indicated in the medical section of the NRSD.

page 240
c. Ethnicity.Employee’s ethnicity is required for skin cancer cases.

(1) The method used to gather this information is Form EE/EN-9 (Exhibit 4).

(2) Upon receipt of the information from the claimant, indicate the ethnicity using the designations shown in the NRSD.

(3) If the initial questionnaire is not returned by the claimant within 30 days, the CE must send a follow-up letter advising that the questionnaire must be returned within the next 30 days or the case will be administratively closed. After a total of 60 days has elapsed, the CE informs the claimant by letter that the case will be administratively closed.

If the CE can obtain the relevant information from the employee’s medical records or DAR, the NRSD may be completed using that information, and forwarded to NIOSH with an explanation of where the information was acquired.

page 258
17. Proving Causation Between Diagnosed Non-SEC Cancer and Covered Employment. Under Part B, a covered employee seeking compensation for cancer, other than as a member of the SEC seeking compensation for a specified cancer, is eligible for compensation only if DOL determines that the cancer was “at least as likely as not” (that is, a 50% or greater probability) caused by radiation doses incurred in the performance of duty while working at a DOE facility and/or an Atomic Weapons Employer (AWE) facility.

This includes radiation doses from medical X-rays for the pre- employment physical examination, annual physical examinations, and a termination (exit) physical examination, but does not include radiation to which the employee may have been exposed during airline flights, as such exposures are not incurred from activities at the sites.

EEOICPA does not include a requirement limiting the types of cancers to be considered radiogenic; CLL is considered non radiogenic pursuant to HHS regulation.

d. Guidelines. Specific guidelines concerning the calculation of the PoC for certain cancers are noted below.

(1) Carcinoma in situ (CIS), or cancers in their early stages, are not specifically included in NIOSH-IREP models. These lesions are becoming more frequently diagnosed, as the use of cancer screening tools, such as mammography, has increased in the general population. The risk factors and treatment for CIS are frequently similar to those for malignant neoplasms, and, while controversial, there is growing evidence that CIS represents the earliest detectable phase of malignancy. Therefore, for purposes of estimating PoC, carcinoma in situ (ICD–9 codes 230–234) should be treated as a malignant neoplasm of the specified site.

Current NIOSH guidance on which IREP models to run for in situ squamous cell carcinoma (SCC) skin cancer is contained in Table 4, “Cancer Models to be Used in the Calculation of Probability of Causation,” in the NIOSH-IREP Technical Documentation. The guidance in the table directs the use of two models for in situ skin cancer cases. For the ICD-9 code 232 series the CE must use the IREP models for both malignant melanoma and non-melanoma skin-squamous cell.

When a physician specifically identifies the in situ skin cancer as squamous cell carcinoma (SCC), the IREP guidance in the above-mentioned tables is not applicable and the CE must run the SCC model only. If not so identified, then the CE continues to run both models for in situ skin cancers.

(2) For other cancers requiring the use of NIOSH-IREP, the CE must assume that neoplasms of uncertain behavior (ICD–9 codes 235–238) and neoplasms of unspecified nature (ICD–9 code 239) are malignant, for purposes of estimating PoC.

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18.Calculation of PoC Using NIOSH-IREP Computer Program. DOL must calculate the PoC for all cancers, except CLL, using NIOSH-IREP. The risk models developed by the National Cancer Institute and the Center for Disease Control for NIOSH-IREP provide the primary basis for developing guidelines for estimating PoC under EEOICPA. They directly address 33 cancers and most types of radiation exposure relevant to claimants covered by EEOICPA.

b. Smoking History and Racial/Ethnic Identification. The risk model for lung cancer takes into account smoking history. The risk model for skin cancer takes into account the race or ethnic identification of the claimant. (However, it does not consider exposure to sunlight, since sunlight is not a toxic substance.)

None of the risk models explicitly account for exposure to other occupational, environmental, or dietary carcinogens. For cases with lung (primary or secondary, with unknown primary) or skin cancer, the CE must determine the smoking history or race or ethnic identification of the claimant.

Final Decisions:
page 08
EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004)

NOTICE OF FINAL DECISION

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on 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 reason discussed below, your claim for benefits is denied.

STATEMENT OF THE CASE
You filed a claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), on March 8, 2004. You indicated your employment classification or type of employment as Atomic Weapons Employer. On Form EE-3 (Employment History for Claim under EEOICPA) you stated that you had been employed as a supervisor for the installation of refrigeration equipment and other work while employed by the Way Engineering Company at Texas City Chemical, Inc., located in Texas City, Texas from 1952 until 1956. The Department of Energy (DOE) has identified Texas City Chemicals as an Atomic Weapons Employer (AWE) for the time period 1952 through 1956. You stated that as a result of your exposure at Texas City Chemicals while employed by Way Engineering Co. that you developed a skin disease that was possibly skin cancer.

The district office reviewed your application and evidence. In seperate letters dated March 15, 2004, the district office noted that you had not submitted medical or employment evidence in support of your claim. The letter addressing employment evidence indicated that while we had initiated a request for proof of employment with the DOE, they had been unable to verify your employment at Texas City Chemical, Inc. The district office asked you to provide evidence of your employment and listed a variety of documents such as time and attendance forms, wage statements, or other records that could be used to establish employment. The letter included Form EE-4 (Affidavit of Employment) that you could use to have other individuals complete statements in support of your employment allegations. The Social Security Administration (SSA) Form SSA-581, which can be used to verify your Social Security employment and employer history with your authorization, was included with the letter for your use if you wished the district office to request the information directly from SSA. A follow-up request for medical information was sent to you on May 26, 2004.

On June 8, 2004, you had a telephone conversation with a district office claims examiner. You stated that you had been employed by Way Engineering which was a contractor at the Texas City Chemical site and you were not employed directly by Texas City Chemical, Inc. The claims examiner informed you that employees of contractors or subcontractors of an Atomic Weapons Employer were not “covered employees” under the EEOICPA.

On June 9, 2004, the district office informed you in a letter that under the EEOICPA only employees hired directly by the AWE facility (such as Texas City Chemicals) were covered under the Act. The letter explained that the definition of an “atomic weapons employee” is an individual employed by an Atomic Weapons Employer during a period when the employer was processing or producing for the use by the United States material that emitted radiation and was used in the production of atomic weapons, excluding uranium mining and milling. The letter requested that you provide evidence that you were employed directly by Texas City Chemical, Inc. and explained that if additional employment evidence was not received within 30 days, a recommended decision would be issued based on the
information in file.

On June 15, 2004, the district office received medical evidence provided by your physician, Dr. Anh V. Nguyen, M.D. This evidence included a pathology report describing a specimen from skin on your left forearm obtained on May 4, 2004 and provided a diagnosis of malignant melanoma (skin cancer).

On July 12, 2004, the district office issued a recommended decision to deny your claim. The recommended decision stated that the evidence of record did not establish that you could be considered a “covered employee” as that term is defined under 42 U.S.C. § 7384l. The file was transferred to the Final Adjudication Branch (FAB) on that date.

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch pursuant to 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all evidence in the record and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).

You have not raised any objections to the district office’s recommended decision pursuant to § 30.310(a) of the implementing regulations and the 60-day period for filing such objections, as allowed under § 30.310(a) of the implementing regulations (20 C.F.R. § 30.310 (a)), has expired.

Based on the evidence contained in the case record, the Final Adjudication Branch makes the following:

FINDINGS OF FACT
1.You filed a claim for compensation on March 8, 2004.

2. You did not provide evidence sufficient to establish that you had covered employment with a DOE or AWE facility.

3. You provided medical evidence that established you had been diagnosed with malignant melanoma (skin cancer) on May 5, 2004.

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

CONCLUSIONS OF LAW
Section 7384l states:

(1) The term “covered employee” means any of the following:

(A) A covered beryllium employee.

(B) A covered employee with cancer.

(C) To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).

(2) The term “atomic weapon” has the meaning given that term in section 11 d.* of the Atomic Energy Act of 1954 (42 U.S.C. 2014(d)).

(3) The term “atomic weapons employee” means an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.

(4) The term “atomic weapons employer” means an entity, other than the United States, that—

(A) processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(B) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

(5) The term “atomic weapons employer facility” means a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.

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

You stated that you were employed by a subcontractor (The Way Engineering Co.) at an Atomic Weapons Employer facility (Texas City Chemicals, Inc.) and you were not an employee of Texas City Chemicals, Inc. EEOICPA coverage for Atomic Weapons Employers (AWE) is not extended to contractors and subcontractors of the AWE but only to individuals employed directly by the AWE. Your work at the AWE site is not qualifying because you worked for a company other than the AWE.
Therefore, you are not a “covered employee” under the Act.

The undersigned has reviewed the recommended decision issued by the district office on July 12, 2004, and finds that it is in accordance with the facts and the law in this case. It is the decision of the Final Adjudication Branch that your claim for compensation is denied.

Denver, Colorado
September 16, 2004
Janet R. Kapsin
Hearing Representative

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

NOTICE OF FINAL DECISION

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

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

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

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

The district office sent [Employee]’s medical records to a District Medical Consultant (DMC) for review. In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and seven actinic keratoses. The DMC noted that the final pathology diagnosis of the keratosis of the index finger was consistent with an arsenical keratosis. The DMC therefore concluded that [Employee]’s exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin lesions of keratoses of his hands. The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found in cases of asbestos exposure. The DMC determined that it is at least as likely as not that [Employee]’s exposure to toxic substances while working at the SRS was a significant factor in contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal disease.

As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic substances. However, the DMC noted that the medical notes stated that [Employee]’s aneurism was unable to be surgically corrected as a result of other significant medical problems, one of which was his moderately severe COPD. As a result, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were a significant factor in aggravating his aneurism.

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

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

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW
Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a) (2009).

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

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

Armando J. Pinelo
Hearing Representative
Final Adjudication Branch

page 241
EEOICPA Fin. Dec. No. 10522-2004 (Dep’t of Labor, November 14, 2003)

NOTICE OF FINAL DECISION

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

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

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

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

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

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

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

FINDINGS OF FACT
1. You filed a claim for employee benefits on September 24, 2001.
2. You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.
3. You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA. See 42 U.S.C. §
7384l(9)(B).
4. You were diagnosed with multiple skin cancers.
5. Your cancer diagnoses were made after you began employment with the Department of Energy.
6. The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.
7. The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82. See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.
8. The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81. The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81. See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E.
9. After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation. Additional calculations of probability of causation were not required to be determined. See 42 C.F.R. § 82.10(k).

CONCLUSIONS OF LAW
The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn
area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face). Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4th layer shows cancer still present.”).

You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin).

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

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

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations. See 20 C.F.R. § 30.115. On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction. Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the
district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site. See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims
involving two or more primary cancers). The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability. Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

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

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

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

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

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

page 349
EEOICPA Fin. Dec. No. 62339-2005 (Dep’t of Labor, November 18, 2005)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE
On October 4, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity. A review of the medical evidence revealed that along with beryllium sensitivity you were diagnosed with multiple skin cancers: basal cell carcinoma (BCC) of the right temple, diagnosed July 25, 1995; BCC of the left face, diagnosed April 11, 2000; BCC of the right face, diagnosed March 12, 2001[1], and BCCs of the upper and lower face, diagnosed August 2, 2004.[2] On the Form EE-3, Employment History, you stated you were employed as a laborer by F. H. McGraw at the Paducah gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of January 1, 1951 to December 25, 1954. The evidence of record establishes you worked for F. H. McGraw at Paducah GDP for the claimed period of employment.

On February 1, 2005, a final decision and remand order was issued by the FAB accepting your claim for beryllium sensitivity and remanding your case for further development of chronic beryllium disease (CBD). The district office referred your claim to a district medical consultant (DMC) for review on September 14, 2005.

On the Form EE-1, you indicated that you were a member of the Special Exposure Cohort (SEC). You established that you were diagnosed with multiple skin cancers. To determine the probability of whether you sustained your cancer in the performance of duty, as required to establish entitlement under Part B of the Act, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.” On August 24, 2005, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on August 29, 2005.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 55.97% combined probability that your cancers[3] were caused by radiation exposure at the Paducah GDP. 42 C.F.R. § 81.20. The Final Adjudication Branch confirmed the 55.97% combined probability.

On September 14, 2005, the Jacksonville district office issued a recommended decision finding that your skin cancer(s) were at least as likely as not caused by your employment at a Department of Energy (DOE) facility and concluding that that you are entitled to compensation in the amount of $150,000. The district office’s recommended decision also concluded that you are entitled to medical benefits beginning October 4, 2004 for skin cancer.

On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.
The district office had deferred adjudication of your claim for CBD until receipt of the DMC’s report.

On October 6, 2005, the FAB received the October 2, 2005 report from Dr. Robert E. Sandblom. Dr. Sandblom verified that the pulmonary function tests on record were consistent with chronic beryllium disease.

FINDINGS OF FACT
1. You filed a Form EE-1, for beryllium sensitivity and review of the medical records revealed evidence of skin cancer and possible chronic beryllium disease.

2. You were diagnosed with skin cancer (BCC) on July 25, 1995, April 11, 2000, and August 2, 2004 (x2).

3. You were employed at the Paducah GDP from January 1, 1951 to December 25, 1954.

4. The probability that your cancer was caused by radiation at the Paducah GDP is 55.97%.

5. On September 14, 2005, the Jacksonville district office issued a recommended decision.

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

7. On October 6, 2005, the FAB received a report from the DMC, confirming a statutory diagnosis of CBD.

CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision.

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

The evidence shows that you worked at the Paducah GDP from January 1, 1951 to December 25, 1954, which equals more than 250 days prior to February 1, 1992. Therefore, you qualify as a member of the SEC.

However, in order to be entitled to benefits as a member of the SEC, you must have been diagnosed with a specified cancer as defined by the Act and implementing regulations. 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005). Skin cancers are not a specified cancer.

A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility. 42 U.S.C. § 7384n(b); 42 C.F.R. Part 81. I conclude that your skin cancers were at least as likely as not caused by your employment at a Department of Energy (DOE) facility. 42 U.S.C. § 7384n(b). Therefore, you are a covered employee with cancer. 42 U.S.C. § 7384l(9)(B).

The medical evidence is sufficient to establish that you have CBD. Under Part B of the Act, CBD may be established by the following:

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

(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

(ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

42 U.S.C. § 7384l(13).

The beryllium lymphocyte proliferation test (BeLPT) of July 28, 2004 was positive. Therefore, you have beryllium sensitivity, as previously established by final decision dated February 1, 2005. 42 U.S.C. § 7384l(8).

The DMC verified in his report of October 2, 2005 that pulmonary function tests on record were consistent with chronic beryllium disease, meeting criterion iii. Office policy allows the FAB to accept a claimed medical condition based on new evidence, if the case was in posture for acceptance of benefits for another condition.[4] Therefore, I conclude that you are a covered beryllium employee and that your chronic beryllium disease is a covered occupational illness. 42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207.

In accordance with Part B of the Act, you are entitled to $150,000 and medical benefits beginning October 4, 2004 for skin cancer and chronic beryllium disease. 42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL
Sidne Valdivieso
Hearing Representative

[1] Review of the pathology report shows this was not a BCC but rather a pilomatricoma, which may be either benign or malignant. The pathology report did not specify which. Therefore, this should not have been utilized in the dose reconstruction. However, you had an additional cancer that was not utilized by NIOSH in the dose reconstruction, the BCC of the right lower face, diagnosed August 2, 2004, that the DOL health physicist has determined could be substituted for the
pilomatricoma without negatively impacting the combined probability of causation.

[2] You did not file a Form EE-1 for skin cancer or chronic beryllium disease, but any written communication that requests benefits under the Act will be considered a claim, including the submission of new medical evidence for review.

[3] NIOSH computed the percentage of causation for four BCCs to arrive at 55.97%. When the percentage of causation is over 50% establishing that those cancers were at least as likely as not related to employment at a covered facility, calculation of the percentage of causation for the remaining cancers is not necessary.

[4] EEOICPA Bulletin No. 03-29 (issued June 30, 2003).

page 365
EEOICPA Fin. Dec. No. 64180-2005 (Dep’t of Labor, February 17, 2005)

NOTICE OF FINAL DECISION AND REMAND ORDER

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, the Final Adjudication Branch accepts your claim for compensation based on lung cancer. Additionally, for the reasons set forth below, this case is remanded to the district office regarding the issue of entitlement to medical benefits based on skin cancer.

On August 16, 2004, [Employee] filed a claim for compensation under Part B of the EEOICPA listing skin cancer of the ear, forehead, nose, arm, and neck as the medical conditions on which his claim was based. The employee provided medical documentation showing that he had been diagnosed with basal cell carcinoma of the right temple and the nasal tip on May 23, 1995; with basal cell carcinoma of the left ear on September 11, 1997; and with basal cell carcinoma of the forehead on January 20, 2003. Additional medical documentation was also provided to show that he had been diagnosed with cancer of the left lung on October 26, 2004. The employee had also submitted evidence showing that he was employed by several subcontractors at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH. That evidence, when considered in its totality, demonstrated that, during the period of January 1952 to June 1985, he worked at the Portsmouth GDP for the contractors listed below:

	FROM	TO	Months worked
Grinnell (ITT)	September 1954*	August 1955	12.0
Julian Speer	September 1979	July 1980	10.5
Mechanical Construction	July 1980	January 1981	6.5
Dynamic Industrial Construction	October 1981	June 1985	45.0
TOTAL			74

*September 1954 is the earliest date from which employment qualifies for purposes of Special Exposure Cohort Membership.
On November 30, 2004, the district office issued a recommended decision to accept the employee’s claim for compensation as a member of the Special Exposure Cohort, based on lung cancer, and deferred a decision regarding entitlement to medical benefits for skin cancer pending dose reconstruction. Unfortunately, [Employee] had died on November 26, 2004, and the Final Adjudication Branch (FAB) remanded his case to the district office for administrative closure and consideration of the claim you had filed. The remand order stated that the issue of entitlement to medical benefits under 42 U.S.C. § 7384s(b) was to be addressed in any future recommended decision.
On December 17, 2004, you filed a claim for benefits under the EEOICPA listing lung cancer as the medical condition on which your claim is based. The medical documentation of record shows that your husband was diagnosed with cancer of the left lung on October 26, 2004.
The evidence of record establishes that your husband was employed at the Portsmouth GDP as specified above. 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.
On January 11, 2005, the Cleveland district office issued a decision concluding that your husband is a covered employee with cancer because he is a member of the Special Exposure Cohort who has been diagnosed with lung cancer, a specified cancer under 42 U.S.C. § 7384l(17). The district office recommends that you, as his surviving spouse, are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s for lung cancer. The recommended decision also concluded that, pursuant to 42 U.S.C. § 7384s(b), your husband is entitled to medical benefits, as described in 42 U.S.C. § 7384t, from August 16, 2004, to November 26, 2004, for lung cancer. That decision noted, as a Finding of Fact, that a decision regarding entitlement based on skin cancer would not be issued
because you had withdrawn your husband’s claim based on skin cancer.

On January 19, 2005, the FAB received 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. I find that the recommended decision is in accordance with the facts and the law
in this case with regard to your entitlement to compensation based on your husband’s lung cancer and that payment will be made for treatment of that condition. For that reason, I find that you, as the surviving spouse, are entitled to $150,000 pursuant to 42 U.S.C. § 7384s. As provided by 20 C.F.R. § 30.400(a), payment will be made for treatment of your husband’s lung cancer, as described in 42 U.S.C. § 7384t, for the period of August 16, 2004, to November 26, 2004.

In reviewing your case the FAB notes that the district office accepted your letter of December 21, 2004, as a withdrawal of your husband’s claim for benefits based on skin cancer. However, 20 C.F.R. § 30.101(b) provides that a survivor may withdraw his or her claim by so requesting in writing to the Office of Workers’ Compensation Programs (OWCP) at any time before OWCP determines eligibility for benefits. The regulations contain no provision allowing a survivor to withdraw a claim previously filed by an employee.

The basic rules for obtaining medical care, 20 C.F.R. § 30.400(a), provide that a covered employee who fits into at least one of the compensable claim categories is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness, retroactive to the date the employee filed a claim for benefits under the EEOICPA. When a survivor receives payment, OWCP will pay for such treatment if the covered employee died before the claim was paid.

Because your husband has been found to fit into the compensable claim category of “covered employee with cancer,” and because you have been determined to be entitled to payment of compensation on that basis, entitlement to payment for treatment for the claimed skin cancers is an obligation of the OWCP if they are found to be occupational illnesses. In order to determine if payment for treatment of the skin cancers claimed by the employee is in order, a decision must be made as to whether or not those cancers are occupational illnesses.

For the reasons discussed above, your case is remanded to the district office for any necessary development, to include dose reconstruction as described in 42 U.S.C. § 7384n(c), and issuance of a new recommended decision as to whether or not any or all of the claimed skin cancers are occupational illnesses, and, if so, whether or not OWCP will pay for such treatment.

Cleveland, OH
Tracy Smart
Acting FAB Manager
Final Adjudication Branch

page 471
EEOICPA Fin. Dec. No. 41341-2005 (Dep’t of Labor, May 11, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication
Branch accepts and approves your claim for compensation and benefits, based on multiple myeloma, under Part B of the Act. Your claim under Part E of the Act, and your claim under Part B of the Act for skin and throat cancer, is deferred.

STATEMENT OF THE CASE
On February 6, 2003, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on cancer, specified as multiple myeloma, skin, and throat cancer. You also filed a Form EE-3 (Employment History), in which you indicated that you were employed at Oak Ridge, by “Keagan & Hughes,” from January 1, 1950 to February 10, 1951, at Paducah, Kentucky, from February 15, 1951 to March 23, 1953, and at the Hanford site from April 15, 1954 to January 21, 1955, and that you did not wear a dosimetry badge.

The employment evidence of record consists of affidavits, personnel information from the Atomic Energy Commission, earnings information from the Social Security Administration, and information from the Center to Protect Workers Rights. You provided an employment history affidavit from the business manager of L.U. # 237, Texarkana, TX/AR, who indicated he had been vice-president of local # 237, and therefore knew that you were employed by the following employers: (1) “Keagen & Hughes,” Oak Ridge, Tennessee, “AEC,” from January 1, 1950 to February 10, 1951; (2) M.W. Kellogg, Paducah, Kentucky, from February 15, 1951 to March 23, 1952; and (3) Kaiser Engineers, Hanford site, North Richland, Washington, from April 15, 1954 to January 21, 1955. An Atomic Energy Commission (AEC), Oak Ridge, Tennessee, Personnel Clearance Master Card shows that you were granted an emergency clearance, on June 26, 1951, as an employee of Kaighin & Hughes, a subcontractor with Maxon Construction Company, and you were terminated on October 9, 1951. A second AEC, Oak Ridge, Personnel Clearance Master Card shows that your security clearance was “reinstated” on October 17, 1951, the name of your employer was “F.H. McGraw & Company M.W. Kellogg,” and that you were terminated on October 29, 1952. The card further shows a transfer to Hanford on April 13, 1954.

A co-worker at the Oak Ridge Gaseous Diffusion Plant (GDP), also known as K-25, provided an employment history affidavit in which he indicated that he worked with you for “Kaighan & Hughes” at the Oak Ridge K-25 Plant from January 1, 1950 to February 10, 1951. A dispatch record from Local o. 237, shows that you were employed by Kaiser from March 31 to May 30, 1954. An Itemized Statement of Earnings obtained from the Social Security Administration (SSA) shows that you had earnings paid by M.W. Kellogg from October through December 1949, October through December 1951, January through June 30 1952, and January through March 1953. In addition, the SSA Itemized Statement of Earnings showed that you were paid earnings by Atlantic Industries, Incorporated, during the period from January through March 1950, and Kaiser Engineers during the period from April through September 1954. A letter provided, by the Business Manager of the Plumbers & Steamfitters Local 184, Paducah, Kentucky shows that the M.W. Kellogg Company was a subcontractor at the Paducah GDP, Paducah, Kentucky from 1951 to 1955. The record also contains a copy of a “Certificate of Amendment to the Articles of Incorporation of Kaighin & Hughes, Inc.” that indicates the shareholders authorized the name of the company to be changed to “Atlantic Industries, Inc.” by resolution dated May 17, 1968.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has contracted with the Center to Protect Workers’ Rights (CPWR) for assistance in obtaining records pertinent to construction and trade employees at DOE, atomic weapons employer (AWE) or beryllium vendor facilities. The CPWR is a research, development, and training arm of the Building and Construction Trades Department (BCTD) of the American Federation of Labor-Congress of Industrial Organizations
(AFL-CIO). The CPWR concluded that (1) Kaighin & Hughes was a subcontractor to Maxon and, as shown in a report to the President by the Atomic Energy Labor Relations Panel, Kaighin & Hughes was a primary contractor of K29 – K31 of the K25 GDP, and a contractual relationship between Kaighin & Hughes and AEC/DOE was also confirmed by a DOE representative who reported that Kaighin & Hughes, Inc. was a subcontractor to Maxon for construction of the K29, K31, and K33 buildings of the K25 GDP from 1947 to 1956. See Section 2 – CPWR Research Results. The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to 1987 and 1988 to the present (remediation); the Paducah GDP is recognized as a covered DOE facility from 1951 to July 28, 1998 and July 29, 1998 to the present (remediation); and the Hanford site is recognized as a covered DOE facility from 1942 to the present. See DOE, Office of Worker Advocacy, Facility List.

You indicated on your Form EE-3 that you were not monitored, through the use of dosimetry badges, for exposure at either the Oak Ridge GDP or Paducah GDP, and the information above shows that you were employed at the Oak Ridge GDP and Paducah GDP, respectively, from January 1 through October 9, 1951 and January 1 through October 29, 1952. However, the evidence shows that you worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges for your entire period of employment at Oak Ridge and for the period from July 1952 to October 29, 1952 at the Paducah GDP.

In addition to medical documentation showing diagnosis of skin cancer, you provided a narrative medical report by Joyce Feagin, M.D., dated January 11, 2001, that indicated you were diagnosed as having multiple myeloma.

On March 30, 2005, the Seattle district office issued a recommended decision that concluded you are a member of the special exposure cohort under Part B, as defined by 42 U.S.C. § 7384l(14)(A), you were diagnosed with multiple myeloma, a specified cancer under Part B as defined by 42 U.S.C. § 7384l(17), and that you are entitled to compensation under Part B in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1). The district office also concluded that you are entitled to medical benefits under Part B, retroactive to the date you filed you claim for benefits, February 6, 2003, as outlined under 42 U.S.C. § 7384t. The district office deferred adjudication of your claim for skin cancers pending completion of the report of radiation dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

On April 11, 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT
1. You filed a claim for benefits under the EEOICPA on February 6, 2003.

2. You were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952.

3. A DOE contractor or subcontractor employed you for a number of work days aggregating at least 250 work days before February 1, 1992, at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky.

4. You were diagnosed as having multiple myeloma, a specified cancer, on January 11, 2001.

5. You contracted multiple myeloma after having begun covered employment with a DOE contractor or subcontractor at the Oak Ridge GDP and Paducah GDP, and the onset of the illness was more than five years after your first exposure at a GDP.

CONCLUSIONS OF LAW
In order for an employee to be afforded coverage under the “special exposure cohort,” the employee must be a DOE employee who was 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 [the] 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. See 42 U.S.C. § 7384l(14).

Further, a specified cancer is “A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note),” including multiple myeloma, provided the onset was at least five years after first exposure to radiation. See 42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(dd)(5)(i) (multiple myeloma). The medical evidence of record indicates that you were diagnosed with multiple myeloma on January 11, 2001, which was more than five years after you were first exposed to radiation at Oak Ridge.

Your employment history (including employment history affidavits, Social Security records, union dispatch records, security clearance records, and confirmation by the CPWR) shows that you were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952, a period exceeding 250 work days. However, employees who indicate on their Form EE-3 that they were not monitored by dosimetry while employed at the Paducah GDP are determined to have been engaged in covered employment beginning in July 1952. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2)(a) (June 2004). Therefore, your period of employment at the Paducah GDP, for purposes of coverage as a member of the special exposure cohort, must be calculated using a beginning date of July 1, 1952, and an ending date of October 29, 1952.

Thus, the evidence shows that you were employed by a DOE contractor or subcontractor for a number of work days aggregating at least 250 work days before February 1, 1992 at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky, “in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges,” and you are a “member of the Special Exposure Cohort.” See 42 U.S.C. § 7384l(14)(A).

You filed a claim based on multiple myeloma, skin, and throat cancer. The Final Adjudication Branch has reviewed the medical reports of record and found that you were diagnosed as having multiple myeloma on January 11, 2001. Consequently, you are a “covered employee with cancer,” and a member of the special exposure cohort who was diagnosed as having a “specified cancer” under the EEOICPA. See 42 U.S.C. §§ 7384l(9)(A), (14)(A), and (17)(A).

For the forgoing reasons, the Final Adjudication Branch hereby accepts and approves your claim for multiple myeloma. You are entitled to compensation under Part B of the Act in the amount of $150,000.00. See 42 U.S.C. § 7384s(a)(1). In addition, you are entitled to medical benefits for multiple myeloma under Part B of the Act, retroactive to February 6, 2003, pursuant to 42 U.S.C. § 7384t. Adjudication of your claim for skin cancers and throat cancer is deferred pending completion of the radiation dose reconstruction by NIOSH, and adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.

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

page 687
EEOICPA Fin. Dec. No. 62339-2005 (Dep’t of Labor, November 18, 2005)

NOTICE OF FINAL DECISION

On the Form EE-3, Employment History, you stated you were employed as a laborer by F. H. McGraw at the Paducah gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of January 1, 1951 to December 25, 1954. The evidence of record establishes you worked for F. H. McGraw at Paducah GDP for the claimed period of employment.

On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision. The district office had deferred adjudication of your claim for CBD until receipt of the DMC’s report.