Docket Number: 10009704-2007

 

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above-captioned 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 benefits based on lymphoma is denied under Part E of EEOICPA.

STATEMENT OF THE CASE

On March 19, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted pulmonary fibrosis and lymphoma due to his employment as a uranium miner. On May 11, 2004, he also filed a Request for Review by Physicians Panel with the Department of Energy (DOE) under former Part D of EEOICPA for pulmonary fibrosis and lymphoma. With the repeal of Part D and the enactment of Part E, the employee’s Part D claim was treated as a claim for benefits under Part E.

On August 16, 2002, FAB issued a final decision accepting the claim under Part B for pulmonary fibrosis and awarded the employee $50,000.00 in lump-sum compensation. In that decision, FAB noted that the Department of Justice (DOJ) confirmed that the employee was an award recipient under section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210 note, for the condition of pulmonary fibrosis. On May 21, 2007, FAB issued another final decision that accepted the claim for pulmonary fibrosis, this time under Part E, and awarded the employee medical benefits under Part E for that covered illness. On November 3, 2008, FAB also issued a final decision that awarded the employee impairment benefits under Part E based on his accepted pulmonary fibrosis; the award of $142,500.00 was for his 57% whole body impairment.

In support of his Part E claim for lymphoma, the employee submitted an employment history on Form EE-3, showing that he had worked as a miner for Kerr-McGee at the KerMac 24 Mine in Grants, New Mexico, from approximately September 1, 1959 to March 1, 1960, and for Phillips Petroleum/Sandstone at the Ambrosia Lake Mine, from approximately March 1, 1960 to November 30, 1960. DOJ submitted employment evidence it had collected in connection with his RECA claim, including an Itemized Statement of Earnings from the Social Security Administration and a Uranium Miner’s study, both of which verified that the employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960. The employee also submitted a pathology report, dated November 10, 1998, in which Dr. Glenn H. Segal diagnosed B-cell non-Hodgkin’s lymphoma involving bone marrow. He also submitted a November 18, 1998 report in which Dr. Jo-Ann Andriko confirmed the diagnosis of malignant lymphoma.

The district office reviewed source documents used to compile the U. S. Department of Labor’s Site Exposure Matrices (SEM)[1]to determine whether it was possible that, given the employee’s labor category and the work processes in which he was engaged, he was exposed to a toxic substance in the course of his employment that has a causal link with his claimed lymphoma. The district office determined that SEM did not have such a link and by letters dated August 14, 2009, and September 14, 2009, it advised the employee that there was insufficient evidence to establish that exposure to a toxic substance at a DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma. The district office requested that he provide further evidence of the link necessary to support his claim and afforded him 30 days to provide the requested evidence. In response, on October 13, 2009, he submitted a letter in which he stated that his lymphoma was the result of his employment as a uranium miner. The letter was accompanied by the following documents:

1. An article entitled “Radon Exposure and Mortality Among White and American Indian Uranium Miners: An Update of the Colorado Plateau Cohort.”

2. An article entitled “Radiation Exposure Tied to Lymphoma Risk in Men.”

3. An article entitled “Occupational Exposures and Non-Hodgkin’s Lymphoma: Canadian Case-Control Study.”

4. An article on non-Hodgkin’s lymphoma.

5. An abstract from the update of mortality from all causes among white uranium miners from the Colorado plateau study group.

6. A section from the Federal Register Notice regarding changes to the dose reconstruction target organ selection for lymphoma under EEOICPA.

7. A letter dated August 17, 2001 in which Dr. Thomas P. Hyde opined that it was highly likely that the employee’s lymphoma was caused by his exposure to radiation during his employment as a uranium miner.

To determine the probability of whether the employee contracted cancer in the performance of duty under Part E due to radiation, the district office referred his claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. On November 10, 2009, the district office received the final NIOSH Report of Dose Reconstruction and used the information provided in that report to determine the probability of causation (PoC). The district office calculated that there was a 17.10% probability that the employee’s lymphoma was caused by radiation exposure at the uranium mines in which he worked.

On December 10, 2009, the district office issued a recommended decision to deny the employee’s Part E claim for lymphoma on the ground that it was not “at least as likely as not” (a 50% or greater probability) that his lymphoma was caused by his employment at the uranium mines where he worked. The district office further concluded that there was no evidence meeting the “at least as likely as not” causation standard that exposure to a toxic substance other than radiation at either a DOE facility or a section 5 mine was a significant factor in aggravating, contributing to or causing the claimed illness of lymphoma.

Following issuance of the recommended decision, FAB independently analyzed the information in the NIOSH report and confirmed the district office’s PoC calculation of 17.10%. Based on a thorough review of the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. The employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960.

2. He was diagnosed with lymphoma on November 10, 1998.

3. Based on the dose reconstruction performed by NIOSH, the PoC (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the employee’s lymphoma was 17.10%, which is less than 50%.

4. There is insufficient evidence in the file to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing the employee’s lymphoma.

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

CONCLUSIONS OF LAW

Part E of EEOICPA provides compensation to covered DOE contractor employees who have contracted a “covered illness” through exposure at a DOE facility in accordance with § 7385s-2. Section 7385s(2) defines a “covered DOE contractor employee” as any DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure at a DOE facility, and § 7385s(2) defines a “covered illness” as an illness or death resulting from exposure to a toxic substance. Pursuant to 42 U.S.C. § 7385s-5(2), a section 5 uranium worker determined under § 7385s-4(c) to have contracted a covered illness through exposure to a toxic substance at a section 5 mine or mill will be eligible for Part E benefits to the same extent as a DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure to a toxic substance at a DOE facility.

To establish eligibility for benefits for radiogenic cancer under Part E of EEOICPA, an employee must show that he or she has been diagnosed with cancer; was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and that the cancer was at least as likely as not related to exposure to radiation at a DOE facility or a RECA section 5 facility. Section 30.213 of the implementing regulations (20 C.F.R. § 30.213(c) (2009)) states that:

The Office of Workers’ Compensation Programs (OWCP) also uses the Department of Health and Human Services (HHS) regulations when it makes the determination required by § 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if "it is at least as likely as not" that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to or causing the employee’s radiogenic cancer claimed under Part E of the Act. For cancer claims under Part E of the Act, if the PoC is less than 50% and the employee alleges that he was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part.

FAB notes that the PoC calculations in this case were performed in accordance with 20 C.F.R. § 30.213. FAB independently analyzed the information in the NIOSH report, confirming the district office’s PoC calculation of 17.10%.

Section 30.111(a) of the regulations 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. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.” 20 C.F.R. § 30.111(a). As found above, the case file does not contain sufficient evidence to enable the employee to meet his burden of proof to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma.

In the absence of evidence to support that it is at least as likely as not that exposure to a toxic or radiological substance at a DOE facility or a RECA section 5 facility was a significant factor in aggravating, contributing to, or causing his lymphoma, FAB concludes that the employee has failed to establish that he contracted the “covered illness” of lymphoma, and his claim under Part E of EEOICPA is denied.

Washington, DC

Kathleen M. Graber

Hearing Representative

Final Adjudication Branch