Docket Number: 10036412-2006

U.S. DEPARTMENT OF LABOR

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

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	10036412-2006
DECISION DATE:	June 13, 2007

 

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above 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 compensation filed by [Claimant] is accepted under Part E and she is awarded $125,000.00 plus an additional $25,000.00 in survivor benefits.

STATEMENT OF THE CASE

On July 1, 2005, [Claimant] filed a claim for survivor benefits under Part E of EEOICPA as the spouse of the employee. She identified heart bypass surgery and diabetes, Type II, as the conditions resulting from the employee’s work at a Department of Energy (DOE) facility. A representative from DOE verified the employee’s work as a physicist for the University of California at the Lawrence Livermore National Laboratory (LLNL) from September 1, 1955 to July 25, 1988, and that he was also present at the Nevada Test Site, the Salmon Site, the Gasbuggy Site and Amchitka Island.[1]

The evidence of record includes a June 20, 1985 electrocardiogram report in which Dr. Calder Burton diagnosed an anteroseptal myocardial infarction. It also includes a January 20, 1986 consultation report in which Dr. Rory O’Connor related a history of diabetes mellitus, LLNL medical records with a diagnosis of diabetes mellitus as early as November 4, 1976, and a June 18, 1985 hospital record noting the [Employee] was admitted on June 18, 1985 for diabetes mellitus, angina pectoris and coronary artery disease.

A copy of the employee’s death certificate showed that he died on July 29, 1988 at the age of 54, and that [Claimant] was the employee’s spouse at the time of his death. A copy of a marriage certificate indicates that [Claimant] and the employee were married on September 1, 1956. The death certificate, signed by Dr. M.T. McEneny, identified the immediate cause of the employee’s death as myocardial infarction and coronary artery disease. Based on the employee’s date of birth of March 22, 1934, his normal retirement age under the Social Security Act would have been 65.

On July 26, 2006, FAB issued a final decision and remand order, denying the claim filed by [Employee’s Daughter] on the ground that she was an ineligible survivor and vacating and remanding the decision denying [Claimant]’s claim under Part E. FAB directed the district office to further develop the likelihood of the employee’s exposure to carbon disulfide, and further explore the link between his heart conditions and his LLNL employment.

Source documents in the U.S. Department of Labor’s Site Exposure Matrices (SEM) show that carbon disulfide and lead were present at LLNL. The SEM is a database of occupational categories, the locations where those occupational categories would have performed their duties, a list of process activities at the facility and the locations where those processes occurred, a list of toxic substances and the locations where those toxic substances were located, and a list of medical conditions and the toxic substances associated with those conditions. SEM did not show a connection between the toxic substances of carbon disulfide and lead and the employee’s heart conditions.

On August 15, 2006, the district office referred the file to a District Medical Consultant (DMC) to determine if the employee’s work history and potential exposure to toxic substances at a DOE facility show that it is “at least as likely as not” that the toxic substances were a significant factor in causing, contributing to, or aggravating his coronary artery disease, myocardial infarction or diabetes mellitus. In a September 2, 2006 report, the DMC concluded that, pending further information on the employee’s exposure to carbon disulfide, the medical evidence of record did not establish that it was “at least as likely as not” that exposure to toxic substances was a significant factor in causing, contributing to, or aggravating the employee’s coronary artery disease, myocardial infarction or diabetes mellitus.

On October 1, 2006, the district office forwarded a synopsis of the claim to an Industrial Hygienist for an opinion on the parameters of the employee’s exposure to carbon disulfide and lead while he was employed as a physicist at LLNL or while he was present on site at the Nevada Test Site, Salmon Site, Gasbuggy Site and Amchitka Island. On December 7, 2006, the district office followed up by referring the entire file to the Industrial Hygienist for this purpose.

On November 6, 2006, the district office sent [Claimant] a letter requesting factual or medical evidence which would establish that the employee’s coronary artery disease, myocardial infarction or diabetes mellitus have a known link to exposure to toxic substances. On December 6, 2006, the district office received her submission of medical studies indicating that exposure to carbon disulfide contributes to atherosclerotic disease. [Claimant]’s authorized representative stated that the employee’s job duties as a physicist at LLNL in the 1970s required him to work in the area of a shale oil retort, a process that results in the release of carbon disulfide in excess of the threshold level for exposure.

On February 28, 2007, the district office received a report in which the Industrial Hygienist concluded that the employee’s duties as a physicist did not involve work that would have exposed him to lead. The Industrial Hygenist noted that LLNL was tasked with researching and developing methods for the extraction (or “retorting”) of oil shale in the 1970s, and that LLNL focused in particular on underground methods of production and extraction. The Industrial Hygenist determined that the employee’s expertise in the physics of chimney formation, underground chamber formation and stability made it likely that he would have been involved in the gas production research and the shale oil research, both on site and off. The employee’s exposure to carbon disulfide and other sulfur-containing chemicals would have been low to moderately high during the time he spent operating shale oil retort facilities, and would not have been during major periods of each year. The primary route for exposure was through inhalation.

On April 4, 2007, the district office forwarded the Industrial Hygenist’s report to the DMC. On April 12, 2007, the DMC determined that, given the employee’s work history and exposure to carbon disulfides, it was “at least as likely as not” that the exposures were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction. The DMC also determined that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

On April 27, 2007, the Jacksonville district office issued a recommended decision finding that the employee was employed at a DOE facility by DOE contractors; that the employee’s death was caused by coronary artery disease and myocardial infarction; that the employee’s normal retirement age would have been 65, and that it was “at least as likely as not” that the employee contracted his conditions of coronary artery disease and myocardial infarction through work-related exposure to a toxic substance at a DOE facility under Part E. The district office also recommended that [Claimant] be awarded $125,000.00 plus an additional $25,000.00 in survivor benefits under Part E of EEOICPA.

On May 14, 2006, FAB received [Claimant]’s signed waiver of her right to object to any of the findings of fact or conclusions of law contained in the recommended decision. On the same date, the district office received her signed statement advising that neither she nor the employee had filed any lawsuits or received any settlements or awards in connection with the conditions claimed under EEOICPA, and that neither she nor the employee had ever filed for or received an award of state workers’ compensation for the claimed conditions.

Following a review of the evidence of record, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On July 1, 2005, [Claimant] filed a claim for survivor benefits under Part E of EEOICPA as the spouse of the employee.

2. [Claimant] identified heart bypass surgery and diabetes, Type II, as the conditions resulting from the employee’s work at a DOE facility.

3. The employee worked as a physicist for the University of California at LLNL from September 1, 1955 to July 25, 1988, and he was also present at the Nevada Test Site, the Salmon Site, the Gasbuggy Site and Amchitka Island.

4. On June 18 and 20, 1985, the employee was diagnosed with coronary artery disease and a myocardial infarction. On November 4, 1976, the employee was diagnosed with diabetes mellitus. These dates are after he began work at a covered DOE facility.

5. The employee died on July 29, 1988 at the age of 54 and the immediate cause of the employee’s death was coronary artery disease and myocardial infarction.

6. [Claimant] was married to the employee on September 1, 1956, and she was the employee’s spouse at the time of his death.

7. On April 12, 2007, a DMC concluded that it was “at least as likely as not” that the employee’s exposures to toxic substances at DOE facilities were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction.

8. The DMC also determined that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

9. The employee’s normal retirement age would have been 65, based on his birth date of March 22, 1934. As he died at age 54, the employee died more than ten years but less than 20 years before his normal retirement age.

10. Neither [Claimant] nor the employee have ever filed a lawsuit or received a payment from a lawsuit, or ever filed for or received any state workers’ compensation benefits for the conditions claimed under EEOICPA.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a). [Claimant] has waived her rights to file objections to the findings of fact and conclusions of law in the recommended decision.

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a covered illness through exposure to toxic substances at a DOE facility. The term “covered illness” means an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2). The employee’s work for the University of California at LLNL from September 1, 1955 to July 25, 1988 establishes that the employee was a DOE contractor employee, as defined by 42 U.S.C. § 7384l(11).

In order to be entitled to benefits under Part E of EEOICPA, [Claimant] must provide medical evidence that establishes a specific diagnosis and the date of that diagnosis. She must also submit evidence that establishes a reasonable likelihood of [Employee]’s occupational exposure to a toxic substance at a DOE facility prior to the diagnosis of the claimed condition. Finally, she must establish that there is a relationship between his exposure to a toxic substance and the claimed medical condition such that it can be concluded that exposure to a toxic substance during employment by a DOE contractor at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to, or causing the claimed medical condition. See 42 U.S.C. § 7385s-4(c), 20 C.F.R. §§ 30.230 to 30.232.

The survivor of a DOE contractor employee will receive $125,000.00 if the employee would have been entitled to compensation under § 7385s-4 for a covered illness, and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee. 42 U.S.C. § 7385s-3(a)(1).

As noted above, the file was submitted to a DMC who gave his opinion that, based on information received from an Industrial Hygenist about the employee’s exposure to carbon disulfide in the course of his employment at a DOE facility, it was “at least as likely as not” that the exposures were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction. The DMC also concluded that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

Based upon the totality of evidence including the employee’s employment history, his medical evidence of record, and the DMC’s report, FAB concludes that the evidence of record establishes that it is “at least as likely as not” that the employee’s occupational exposure to a toxic substance during covered employment was a significant factor in aggravating, contributing to, or causing the employee’s myocardial infarction and coronary artery disease. The evidence of record is not sufficient to establish that it is “at least as likely as not” that the employee’s work exposure to a toxic substance during covered employment was a significant factor in aggravating, contributing to, or causing the employee’s diabetes mellitus. See 42 U.S.C. § 7385s-4(c)(1).

The evidence of record therefore establishes that the employee was a DOE contractor employee, and that he was diagnosed with coronary artery disease and myocardial infarction, which are both “covered illnesses” as defined by 42 U.S.C. § 7385s(2). The employee contracted the covered illnesses through exposure to a toxic substance at a DOE facility. Therefore, he would have been entitled to benefits under § 7385s-4 for a covered illness. The employee died on January 13, 1993 and the immediate cause of the employee’s death was listed as coronary artery disease and myocardial infarction. This is sufficient to establish that it is “at least as likely as not” that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s death.

Eligibility for survivor benefits under Part E is delineated at 42 U.S.C. § 7385s-3(c)(1), which provides that such benefits shall be paid to the “covered spouse,” if alive at the time of payment. Part E defines a “covered spouse” as a “spouse of the employee who was married to the employee for at least one year immediately before the employee’s death.” 42 U.S.C. § 7385s-3(d)(1). [Claimant] was married to the employee for at least one year immediately before his death and she is therefore his “covered spouse.” Therefore, she is entitled to $125,000.00 in basic survivor benefits for the employee’s death due to the covered illnesses of coronary artery disease and myocardial infarction.

Under Part E of EEOICPA, the survivor of a covered employee is eligible to receive additional survivor benefits of $25,000.00 if there was an aggregate period of not less than 10 years before the employee attained his or her normal retirement age, during which as the result of any covered illness contracted by that employee through exposure to a toxic substance at a DOE facility the employee’s annual wage did not exceed 50% of the employee’s average annual wage. The employee in this case died at age 54. Under the Social Security Act, the normal retirement age for an employee born on March 22, 1934 is 65. See Federal (EEOICPA) Procedure Manual, Chapter E-800(3)(d)(September 2005). Therefore, [Claimant] is entitled to additional survivor benefits of $25,000.00.

Accordingly, [Claimant]’s claim based on the employee’s death due to coronary artery disease and myocardial infarction is accepted, and she is awarded $125,000.00 in basic survivor benefits and an additional $25,000.00, for a total award of $150,000.00. [Claimant]’s claim based on the employee’s death due to diabetes mellitus is denied under Part E.

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch