Docket Number: 10014306-2006

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH

FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). Your claim under Part E of the Act is hereby accepted as compensable for medical benefits for asbestosis (subject to absorption of a surplus due to a tort settlement) and chronic obstructive pulmonary disease (COPD), and denied for medical benefits for beryllium sensitivity and chronic beryllium disease (CBD).

STATEMENT OF THE CASE

On September 17, 2002 and August 2, 2004, you filed Claims for Benefits under EEOICPA, claiming benefits for the conditions of asbestosis, beryllium sensitivity, and chronic beryllium disease.

On the Form EE-3, Employment History, you stated you were employed as an insulator at the Savannah River Site in Aiken, South Carolina, from 1982 to 2002. The district office verified that you worked for DuPont at the Savannah River Site from May 16, 1983 to October 21, 1983; January 29, 1985 to June 11, 1997; and August 13, 1997 to December 2, 2002.

You submitted medical evidence establishing you were diagnosed with asbestosis on August 12, 1982 and chronic obstructive pulmonary disease (COPD) on July 13, 1983. You did not submit any medical evidence that provided a diagnosis of beryllium sensitivity or chronic beryllium disease. A positive Physicians Panel report determined that you were diagnosed with asbestosis prior to employment at the Savannah River Site, but the employment by a contractor at the Department of Energy (DOE) facility likely contributed to your illness.

The district office performed a search of the U. S. Department of Labor Site Exposure Matrices (SEM). The source documents used to compile SEM establish that an insulator could have been exposed to asbestos and borosilicates at the Savannah River Site, and that asbestosis is a specific health effect of exposure to asbestos. The district office also referred the medical evidence of record to a district medical consultant (DMC) for an opinion.

On July 20, 2006, the Jacksonville district office recommended acceptance of your claim for compensation under Part E of the Act, finding that your diagnosed asbestosis and COPD were covered illnesses caused by exposure to a toxic substance in the course of your employment at the Savannah River Site. The recommended decision found that you are entitled to compensation for medical benefits for asbestosis, less an offset amount of $12,235.01 for payments received from a lawsuit. The offset surplus is to be paid down by any medical benefits due for asbestosis from the date of filing until the surplus is absorbed. The district office also recommended acceptance of your claim for medical benefits for COPD, and denial of your claim for beryllium sensitivity and chronic beryllium disease under Part E of the Act.

On July 25, 2006, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.

FINDINGS OF FACT

1. On September 17, 2002, you filed a claim under the Act for asbestosis, beryllium sensitivity, and chronic beryllium disease.

2. You were diagnosed with asbestosis on August 12, 1982 and COPD on July 13, 1983.

3. You were employed by DuPont at the Savannah River Site from May 16, 1983 to October 21, 1983; January 29, 1985 to June 11, 1997; and August 13, 1997 to December 2, 2002, and were exposed to asbestos during this employment.

CONCLUSIONS OF LAW

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

You were employed as a covered DOE employee at a covered DOE facility for more than one year and were exposed to asbestos during that employment. Your asbestosis was diagnosed prior to first exposure at a DOE facility, but was contributed to by that exposure. Based upon a review of the case file materials, the U.S. Department of Labor Site Exposure Matrices (SEM), and the opinion of the district medical consultant, the evidence of record establishes that it is at least as likely as not that exposure to asbestos at the Savannah River Site was a significant factor in aggravating, contributing to or causing your asbestosis, and it is at least as likely as not that the exposure to asbestos was related to your employment at the Savannah River Site. 42 U.S.C. § 7385s-4(c). Therefore, I conclude that you are entitled to medical benefits for asbestosis retroactive to September 17, 2002. 42 U.S.C. § 7385s-8.

However, under § 7385 of the Act, a payment of compensation to an individual shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable. 42 U.S.C. § 7385. The evidence of record indicates that you have received settlements totaling $20, 273.11, with a resulting surplus of $12,235.01. This surplus will be absorbed out of medical benefits payable for asbestosis under the Act (and any further lump-sum payments due in the future in Part E claims).

The district office submitted the medical evidence of record to a district medical consultant (DMC) for review. In his report of June 13, 2006, Dr. John Ellis stated that COPD was due to exposures to toxic substances at the Savannah River Site, including asbestos and borosilicates. Based upon a review of the case file materials, and the district medical consultant’s report, the evidence of record establishes that it is at least as likely as not that exposure to toxic substances at the Savannah River Site was a significant factor in aggravating, contributing to or causing your COPD, and it is at least as likely as not that the exposure to toxic substances was related to your employment at the Savannah River Site. 42 U.S.C. § 7385s-4(c). Therefore, I conclude that you are entitled to medical benefits for COPD retroactive to September 17, 2002. 42 U.S.C. § 7385s-8.

Beryllium sensitivity is established by an abnormal beryllium lymphocyte proliferation test (LPT) or a diagnosis of beryllium sensitivity. You have not submitted any LPT results or a diagnosis of beryllium sensitivity. The medical evidence is insufficient to establish that you were diagnosed with the claimed condition of beryllium sensitivity. 20 C.F.R. § 30.207. Therefore, you are not entitled to medical benefits under Part E of the Act for beryllium sensitivity.

There is no medical evidence to establish that you were diagnosed with the claimed condition of chronic beryllium disease. 20 C.F.R. § 30.207. Therefore, you are not entitled to compensation or medical benefits under Part E of the Act for that condition.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative