Docket Number: 15444-2003

REVIEW OF THE WRITTEN RECORD

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). On July 22, 2003, [Claimant 3] wrote to the FAB and filed objections to the June 26, 2003 recommended decision. On July 26, 2003, [Claimant 2] submitted additional evidence in support of his claim for benefits under the EEOICPA. The objections and additional evidence have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On November 21, 2001, [Claimant 1], filed a claim for benefits as the surviving spouse of the deceased employee under the EEOICPA. On November 21, 2001 and December 26, 2001, [Claimant 2] and [Claimant 3] respectively filed claims for survivor benefits as the surviving children of the deceased employee under the EEOICPA. The claimants identified lung and kidney cancer as the diagnosed conditions on which their claims were based. [Claimant 1] submitted an employment history form (Form EE-3) in which she stated that Bethlehem Steel Co. employed the deceased employee in March 1950. The claimants submitted a copy of a death certificate which shows the employee died on May 11, 1970, due to lung and kidney cancer and that [Claimant 1] was his surviving spouse. [Claimant 1] submitted a copy of a marriage certificate which shows she married the deceased employee on September 1, 1951. [Claimant 2] and [Claimant 3] submitted copies of their birth certificates which show the deceased employee was their father. The claimants submitted a copy of Dr. R. Medina’s July 10, 1968 pathology report in which he diagnosed the deceased employee with clear cell adenocarcinoma of the kidney.

On June 20, 2002, Department of Energy (DOE) representative Roger Anders advised, via Form EE-5, that the DOE had no employment information regarding the deceased employee. Subsequently on July 10, 2002, Mr. Anders advised, via Form EE-5, that the employment history provided by the claimants was correct, but that DOE had additional employment information that was relevant to the claim. In an attached statement, Mr. Anders advised that Bethlehem Steel (Lackawanna, NY) employed the deceased employee from July 26, 1945 to September 8, 1945 and from March 22, 1950 to November 27, 1969. [Claimant 1] submitted an employment affidavit form (Form EE-4) in which she stated that Bethlehem Steel employed the deceased employee from March 22, 1950 to 1969 as a boiler repairman.

On October 30, 2002, the Cleveland district office referred the evidence of record to the National Institute of Occupational Safety and Health (NIOSH) to assist in determining if the employee’s cancer was, at least as likely as not, related to his employment at Bethlehem Steel. On November 19, 2002, NIOSH informed the claimants of the receipt of their claims for benefits under the EEOICPA and provided them an explanation of the dose reconstruction procedures. On May 20, 2003, [Claimant 1] and [Claimant 3] each signed a 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 they provided to NIOSH. On May 21, 2003, [Claimant 2] signed Form OCAS-1 indicating that he had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information he provided to NIOSH. On May 29, 2003, NIOSH provided the district office with the Final Report of Dose Reconstruction under the EEOICPA.

Based upon the evidence of record, the Cleveland district office issued a recommended decision on June 26, 2003, in which it found that:

1. [Claimant 1], [Claimant 3], and [Claimant 2] each filed a claim for survivor benefits on November 21, 2001, December 26, 2001 and November 21, 2001 respectively.

2. [Claimant 1] is the surviving spouse of [Employee], as she was married to him at the time of and for at least one year immediately prior to his death. There is no evidence that there is a living minor child of [Employee].

3. [Employee] had covered employment and worked at Bethlehem Steel in Lackawanna, NY during a covered period.

4. On July 10, 1968, [Employee] was diagnosed with kidney cancer which metastasized to the lungs, ribs, cerebral area and abdominal area.

5. The diagnosis of cancer was after [Employee] began covered employment.

6. NIOSH reported annual dose estimates for the kidney cancer from the date of initial radiation exposure during covered employment, to the date of the cancer’s first diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including the claimants’ involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 29, 2003.

7. Based on the dose reconstruction performed by NIOSH, the Cleveland district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the kidney cancer. The Cleveland district office determined that the kidney cancer was “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility, as required by the EEOICPA.

In light of its findings of fact in connection with this claim, the district office made the following conclusions of law:

[Employee] was a covered employee under § 7384l(1)(B) of the EEOICPA as he was a covered employee with cancer as that term is defined by § 7384l(9)(B) of the EEOICPA. 42 U.S.C. § 7384l(1)(B), 7384l(9)(B).

NIOSH performed dose reconstruction estimates in accordance with § 7384n(d) of the EEOICPA and § 82.26 of the HHS regulations. 42 U.S.C. § 7384n(d), 42 C.F.R. § 82.26. The Department of Labor completed the Probability of Causation calculation in accordance with § 7384n(c)(3) of the EEOICPA and § 30.213 of the EEOICPA regulations, which references subpart E of 42 C.F.R. Part 81. 42 U.S.C. § 7384n(c)(3), 20 C.F.R. 30.213.

As [Employee] was a covered employee and is now deceased, his survivor is entitled to compensation of $150,000.00, pursuant to § 7384s(a)(1) of the EEOICPA. 42 U.S.C. § 7384s(a)(1). [Claimant 1] is the spouse of [Employee], pursuant to § 7384s(e)(3)(A) of the EEOICPA. 42 U.S.C. § 7384s(e)(3)(A). As there is no evidence of a living minor child of [Employee], the exception provided by § 7384s(e)(1)(F) of the EEOICPA does not apply and pursuant to § 7384s(e)(1)(A) of the EEOICPA, [Claimant 1] is thus entitled to the aforementioned compensation of $150,000.00. 42 U.S.C. §§ 7384ls(e)(1)(F), 7384s(e)(1)(A).

On July 28, 2003, the Final Adjudication Branch received written notification from [Claimant 1] waiving any and all objections to the recommended decision.

Objections

Section 30.310(a) of the EEOICPA implementing regulations provides that, “[w]ithin 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a). On July 22, 2003, [Claimant 3] filed written objections to the June 26, 2003 recommended decision. In her letter, [Claimant 3] described the mental and financial hardship she experienced after her father’s death. She also advised she was concerned that if her mother “passes on,” the case may be subjected to closure and she may never see the funds due her. On July 26, 2003, [Claimant 2] submitted a copy of his birth certificate and high school diploma to the FAB for review. He stated in his letter that he considered himself a minor going to school and that he graduated in June 1972.

Section 30.313 of the EEOICPA implementing regulations provides that, in reviewing any objections submitted the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.

After considering the written record of the claim forwarded by the Cleveland district office, the objections of [Claimant 3] and the evidence submitted by [Claimant 2], the FAB hereby makes the following:

FINDINGS OF FACT

1. [Claimant 1] and [Claimant 2] filed claims for survivor benefits on November 21, 2001. [Claimant 3] filed a claim for survivor benefits on December 26, 2001.

2. The Department of Energy confirmed that the deceased employee was employed from July 26, 1945 to September 8, 1945 and from March 22, 1950 to November 27, 1969, by Bethlehem Steel (Lackawanna, NY), an atomic weapons employer.[1]

3. The deceased employee was diagnosed with clear cell adenocarcinoma of the kidney on July 10, 1968.

4. The deceased employee died on May 11, 1970, due to lung and kidney cancer.

5. [Claimant 1] was married to the deceased employee on September 1, 1951, and was his spouse at the time of death.

6. On May 29, 2003, NIOSH completed a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record provided by the Cleveland district office. The Final Adjudication Branch independently analyzed the information in that report and confirmed the 52.34% probability determined by NIOSH.

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

CONCLUSIONS OF LAW

To establish eligibility for compensation as a result of cancer, it must first be established that the deceased employee was: (1) a member of the Special Exposure Cohort (SEC) who was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted a specified cancer after beginning such employment; or (2) a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment. 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210.

Section 7384s(e)(1) of the EEOICPA provides that: “[i]n the case of a covered employee who is deceased at the time of payment of compensation under this section, whether or not the death is the result of the covered employee’s occupational illness, such payment may be made only as follows:

(A) If the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to such surviving spouse.

(B) If there is no surviving spouse described in subparagraph (A), such payment shall be made in equal shares to all children of the covered employee who are living at the time of payment.

[Employee] was an atomic weapons employee as defined by § 7384l(3) of the EEOICPA and he was a covered employee with cancer as defined by § 7384l(9)(B) as his renal cancer was at least as likely as not caused by his employment at an AWE facility, within the meaning of § 7384n of the Act. 42 U.S.C. §§ 7384l(3), 7384l(9)(B), 7384n. [Claimant 1] is entitled to compensation benefits in the amount of $150,000.00 as the eligible surviving spouse of [Employee] in accordance with §§ 7384s(a) and 7384s(e) of the EEOICPA. 42 U.S.C. §§ 7384s(a), 7384s(e). Additionally, [Claimant 3] and [Claimant 2] are surviving children of [Employee] but they are not entitled to benefits under the EEOICPA pursuant to § 7384s(e)(1)(B), which states that only “[if] there is no surviving spouse…payment shall be made in equal shares to all children of the covered employee who are living at the time of payment.” 42 U.S.C. § 7384s(e)(1)(B).

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch