Docket Number: 10015379-2006

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	10015379-2006
DECISION DATE:	March 16, 2006

 

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On July 31, 2001, you filed Form EE-1, Claim for Benefits under the Energy Employees Occupational Illness Compensation Program Act. You claimed you were diagnosed with beryllium sensitivity on April 16, 1992, and you were employed at a Department of Energy facility. On September 26, 2001, you filed Form EE-1 claiming that you were diagnosed with chronic beryllium disease on August 21, 2001.

On Form EE-3, Employment History, you indicated you were employed in several positions at the Rocky Flats Plant in Golden, Colorado from June 30, 1969 until October 22, 1993.[1] The Department of Energy (DOE) confirmed that you were employed at Rocky Flats as reported.

Peripheral blood lymphocyte transformation tests dated April, May, and June 1992, revealed abnormal responses to beryllium sulfate. A fiberoptic bronchoscopy with transbronchial biopsy was performed on July 12, 2001, and the resulting bronchoalveolar lavage lymphocyte transformation test revealed an abnormal response to beryllium sulfate. Lee S. Newman, M.D. in his report dated September 17, 2001, explained that the bronchoalveolar lavage lymphocyte proliferation test showed lymphocytosis at 65% consistent with chronic beryllium disease.

On March 21, 2002, the Final Adjudication Branch issued a final decision which concluded that you were a covered beryllium employee under Part B of EEOICPA and you were awarded compensation in the amount of $150,000.00, and medical benefits for the treatment of your chronic beryllium disease.

By letter dated September 23, 2004, the Department of Energy (DOE) notified you of a positive determination for chronic beryllium disease and beryllium sensitivity from a Physicians Panel as a result of the Part D claim you filed with the DOE. You were also advised of the procedure to follow if you wished to file for state workers’ compensation benefits. On April 7, 2005, you were notified by the Department of Labor (DOL) that your Part D claim had been transferred to the DOL to develop the claim under Part E of the Act. You subsequently indicated that you wished to establish an impairment rating under Part E of the Act.

E. Brigitte Gottschall, M.D., in her medical report dated January 4, 2006, assigned an impairment rating of 10% of the whole person based on Table 5-12, Page 107 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5^th Edition) for the employee’s chronic beryllium disease based on pulmonary function and exercise tolerance tests; the need for daily treatment of his CBD with Advair; and multiple symptoms including shortness of breath with daily activities such as walking. Kathryn L. Mueller, M.D., who is certified by the American Board of Independent Medical Examiners (ABIME), reviewed and concurred with Dr. Gottschall’s evaluation and impairment rating.

In your letter dated March 1, 2006, you stated that you did not wish to pursue a claim for wage-loss.

On March 7, 2006, the Denver district office issued a recommended decision concluding that you are a covered beryllium employee who contracted chronic beryllium disease due to your exposure to a toxic substance related to your employment at a DOE facility with impairment rating established to represent the percent of permanent impairment compensable due to a toxic substance exposure while employed at a DOE facility, and that you are entitled to impairment compensation of $25,000 ($2,500 x 10 = $25,000).

After considering the record of the claim forwarded by the district office, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

1. You filed a claim for benefits under Part B of EEOICPA on July 31, 2001.

2. You were diagnosed with chronic beryllium disease on July 12, 2001.

3. You were employed at the Rocky Flats Plant from June 30, 1969 until October 22, 1993. Throughout the course of its operations, the potential for beryllium exposure existed at the Rocky Flats Plant, due to beryllium use, residual contamination, and decontamination activities.

4. On March 21, 2002, the FAB issued a final decision finding that you were a covered beryllium employee and you were awarded compensation benefits pursuant to Part B of EEOICPA.

5. You filed a claim with the Department of Energy under the former Part D program.

6. You contracted chronic beryllium disease through exposure to a toxic substance, at a DOE facility site, which resulted in permanent impairment.

7. You have a 10% whole body impairment due to your chronic beryllium disease as evidenced by abnormalities on pulmonary function and exercise tolerance tests, associated shortness of breath with daily living activities, and daily treatment of your disease with Advair resulting in an impairment compensation totaling $25,000.

8. The evidence of record also contains your signed statement that you have not filed for or received any tort settlements or received any state workers’ compensation benefits for the claimed condition of chronic beryllium disease.

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

CONCLUSIONS OF LAW

Pursuant to the regulations implementing 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. 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 objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision. 20 C.F.R. § 30.316(a).

Section 30.316(a) of those regulations further states, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a). On March 9, 2006, the FAB received written notification from you waiving any and all objections to the recommended decision.

Pursuant to § 7385s-4(a) of EEOICPA, “A determination under Part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a Department of Energy facility.” 42 U.S.C. § 7385s-4(a). You received an award for compensation under Part B for chronic beryllium disease; therefore it is determined that you are a covered DOE contractor employee who contracted chronic beryllium disease through exposure at a DOE facility.

You have a minimum impairment rating of 10 percentage points determined in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment, pursuant to 42 U.S.C. § 7385s-2(a)(1) and 20 C.F.R. § 30.901. Your gross compensation amount for that impairment rating is $2500 multiplied by 10, or $25,000, pursuant to 42 U.S.C. § 7385s-2(a)(1); 20 C.F.R. § 30.902.

You are entitled to medical benefits for chronic beryllium disease effective July 31, 2001, pursuant to 42 U.S.C. § 7385s-8 of the Act.

It is the decision of the Final Adjudication Branch that your claim for impairment and medical benefits for chronic beryllium disease is accepted.

Denver, Colorado

Anna Navarro

Hearing Representative