Docket Number: 1002-2005

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, as amended (EEOICPA or the Act), 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 medical benefits for the condition of thyroid cancer, and denies your claim based on the condition of brain tumor, under Part B of the Act.

STATEMENT OF THE CASE

On August 6, 2001, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of thyroid cancer and brain tumor.

You submitted a Form EE-3 (Employment History) indicating that you worked for Pan American Airlines (September 3, 1963 to April 21, 1970) and Reynolds Electrical & Engineering Company (REECo) (April 21, 1970 to February 2, 1994), at the Nevada Test Site. A representative of the Department of Energy (DOE) verified that you were employed with REECo for four periods: November 16 to December 30, 1970; April 21 to October 11, 1971; March 30, 1972 to July 27, 1973; and March 11, 1974 to September 30, 1993. Based on dosimetry records, which indicated you were present at the Nevada Test Site from September 3, 1963 to April 21, 1970, that employment was verified for Pan American World Airways. The Nevada Test Site is recognized as a covered Department of Energy facility site from 1951 to the present. REECo is indicated as a contractor of the DOE from 1952 to 1995. See DOE, Office of Worker Advocacy Facility List, http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (retrieved January 16, 2006).

The medical documentation you submitted included pathology reports and medical reports for your treatment of a brain tumor and thyroid cancer. On May 22, 1993 you were diagnosed with a large meningioma of the brain and underwent resection, which reoccurred necessitating resection again on October 16, 2000. The district office requested an opinion from your physician, Jay Tassin, M.D, whether your brain tumor was benign or cancerous. On November 27, 2001, he responded reluctantly that “It’s a difficult question, as [] meningioma is ‘benign’ by histologic criteria, and unlikely to spread through the body via hematogenous or lymphatic seeding.” Dr. Tassin noted the tumor has affected your condition of health and quality of life. Other evidence of record indicates that on April 22, 1998 you underwent total throidectomy and Stephen D. McBride, M.D., diagnosed “follicular carcinoma.”

To determine the probability of whether you sustained cancer in the performance of duty, the Seattle district office referred your claims to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. See 20 C.F.R. § 30.115. The district office received the final NIOSH Report of Dose Reconstruction dated May 27, 2005.

The radiation dose reconstruction report indicates that an efficiency model was used for the dose reconstruction. For purposes of your radiation dose reconstruction, NIOSH used only your external dose and calculated missed dose during your work as a janitor and painter, at the Nevada Test Site. The dose reconstruction was 8.428 rem to the thyroid. NIOSH Report of Dose Reconstruction, p. 4. Thus the dose is reported is an “underestimate” of your total occupational radiation dose. NIOSH Report of Dose Reconstruction, p. 6. The Final Adjudication Branch notes that the employment period used by NIOSH, based on dosimetry records provided by the DOE, was January 1963 to September 30, 1993 (more than the period noted above).

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 thyroid cancer and reported in its recommended decision that there was a 51.43% probability that your thyroid cancer was caused by radiation exposure at the Nevada Test Site.

On September 2, 2005, the Seattle district office recommended acceptance of your claim for compensation based on the condition of thyroid cancer, with medical benefits retroactive to the date of filing, August 6, 2001.

FINDINGS OF FACT

1. On August 6, 2001, you filed a claim for benefits.

2. You were diagnosed with thyroid cancer on April 22, 1998.

3. You worked in covered employment for REECo and Pan American World Airways, at the Nevada Test Site from September 3, 1963 to April 21, 1970, and for REECo, at the Nevada Test Site from November 16 to December 30, 1970; April 21 to October 11, 1971; March 30, 1972 to July 27, 1973; and March 11, 1974 to September 30, 1993.

4. The diagnosis of cancer was made after you started work at a Department of Energy facility.

5. The NIOSH Interactive RadioEpidemiological Program indicated a 51.43% probability that your thyroid cancer was caused by radiation exposure at the Nevada Test Site.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on September 2, 2005. I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

The Final Adjudication Branch calculated the probability of causation for your thyroid cancer using the NIOSH-IREP software program. These calculation confirmed the 51.43% probability of causation that your thyroid cancer was “at least as likely as not” (a 50% or greater probability) caused by radiation exposure you incurred while employed at the Nevada Test Site.

While you provided proof you were diagnosed with a brain tumor, it is not a covered occupational illness. Under Part B of EEOICPA, “only malignant tumors are covered.” Federal (EEOICPA) Procedure Manual, Chapter 2-600.3a(1)(a) (Sept. 2004). The available medical information does not support that meningioma is a malignant cancer, to fit within the coverage of Part B of EEOICPA. Your claim based on brain tumor under Part B is denied, although you may wish to file a claim under Part E.

Based on your covered employment at a covered DOE facility site and the medical documentation showing your diagnosis of thyroid cancer, and the determination that your cancer was at least as likely as not related to your occupational exposure at the Nevada Test Site, and thus sustained in the performance of duty, you are a “covered employee with cancer” under EEOICPA. See 42 U.S.C. § 7384l(1)(B), (9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2.

You are entitled to $150,000.00 compensation and reimbursement of medical expenses related to the condition of thyroid cancer, retroactive to August 6, 2001, the date you filed your claim. See 42 U.S.C. §§ 7384s and 7384t; 20 C.F.R. § 30.400(a).

Washington, DC

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Rosanne M. Dummer

Hearing Representative