Docket Number: 10059726-2007

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:	10059726-2007
DECISION DATE:	December 12, 2007

 

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 (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, your claim under Part E of EEOICPA for sensorineural hearing loss is accepted.

STATEMENT OF THE CASE

On November 9, 2006, the employee filed Form EE-1 claiming for benefits under Parts B and E of EEOICPA for both skin cancer and hearing loss. On Form EE-3, he claimed he was employed as a machinist, production foreman, general foreman, production shift manager, and machining manager at the Rocky Flats Plant[1] from January 7, 1957 to December 31, 1987. The Department of Energy (DOE) verified the employee’s employment at the Rocky Flats Plant from January 7, 1957 until December 31, 1987.

In support of his claim, the employee submitted an October 24, 2006 audiology report that diagnosed him with a moderate/severe sensorineural hearing loss bilaterally. He did not submit any evidence of skin cancer. On February 19, 2007, the employee stated in a letter that he was withdrawing his claim for skin cancer and that he had concerns about beryllium disease. However, on August 2, 2007, the employee submitted another letter stating that he did not wish to file a claim for beryllium disease.

On February 22, 2007, the Denver district office of the Division of Energy Employees Occupational Illness Compensation issued a recommended decision to deny the employee’s claim under Part B because he did not establish that he had developed a compensable occupational illness. In that same recommended decision, the district office also recommended that the employee’s claim under Part E be denied because the evidence did not establish that his hearing loss was caused by exposure to any toxic substances at a DOE facility. The case then was forwarded to FAB for the issuance of a final decision.

After reviewing the medical evidence, FAB determined that the employee was not diagnosed with conductive hearing loss but rather sensorineural hearing loss, which can be caused by toxic exposure. The employee’s claim was then referred to a District Medical Consultant (DMC) on August 2, 2007 to determine which toxins could have caused his sensorineural hearing loss. The DMC determined that carbon tetrachloride and thorium could have caused the employee’s sensorineural hearing loss, and noted that his exposure records at the Rocky Flats Plant showed 20 years of exposure to carbon tetrachloride and 6 years of exposure to thorium.

Based on the DMC’s opinion regarding exposure to toxic substances and the employee’s hearing loss, FAB issued a final decision and remand order on August 8, 2007. In that decision, FAB denied his claim under Part B for sensorineural hearing loss on the ground that it was not a compensable occupational illness, and remanded his claim under Part E for that same condition to the district offrice for a determination as to whether it was at least as likely as not that the employee’s exposure to carbon tetrachloride and thorium as a machinist was a significant factor in aggravating, contributing to, or causing his hearing loss.

On October 1, 2007, a copy of the employee’s medical records, employment history including occupational titles, toxic exposure information, and other relevant material was sent to a DMC. The DMC was also provided with a list of toxic substances to which the employee was exposed in his job as a machinist at the Rocky Flats Plant, including the following organic solvent mixtures: petroleum solvents, sulfonic acid, chlorinated polyolefins, ethoxylated alcohols, ethylene glycol, substituted indole, hydrocarbons, dimethyl polysiloxane, and carbon tetrachloride. On October 4, 2007, the DMC opined that the medical evidence suggests that the employee developed his sensorineural hearing loss as a result of exposure to mixed organic solvents. Specifically, the DMC opined that it is at least as likely as not that his exposure to organic solvent mixtures at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating the claimed condition of sensorineural hearing loss.

The employee submitted a current statement affirming that he had not filed any state workers’ compensation claims, lawsuits, tort suits or received any awards or settlements for the claimed condition and that he had never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any other federal or state workers’ compensation law.

On November 6, 2007, the Denver district office issued a recommended decision to accept the employee’s claim for sensorineural hearing loss under Part E of EEOICPA, after which the case was forwarded to FAB for the issuance of a final decision. After considering the record of the claim forwarded by the district office, FAB hereby makes the following:

FINDINGS OF FACT

1. On November 9, 2006, the employee filed for benefits under Parts B and E of EEOICPA.

2. He was employed by DOE contractors from January 7, 1957 until December 31, 1987 at the Rocky Flats Plant, a covered DOE facility.

3. He was diagnosed with sensorineural hearing loss after he began his employment at the Rocky Flats Plant.

4. On August 8, 2007, FAB issued a final decision denying the employee’s claim under Part B for the condition of sensorineural hearing loss.

5. His employment records show that he was exposed to multiple organic solvent mixtures at the Rocky Flats Plant, specifically carbon tetrachloride.

6. The DMC opined that it is at least as likely as not that the employee’s exposure to organic solvent mixtures at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating the claimed condition of sensorineural hearing loss.

7. The employee submitted a current statement affirming that he had not filed any state workers’ compensation claims, lawsuits, tort suits or received any awards or settlements for the claimed condition and that he had never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any other federal or state workers’ compensation law.

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 the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB. 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, FAB 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). On November 13, 2007, FAB received written notification from the employee waiving any and all objections to the recommended decision.

In order for an employee to be afforded coverage under Part E of EEOICPA, he must establish that he is a “covered DOE contractor employee” who has contracted a covered illness through exposure at a DOE facility. The term “covered illness” means an illness or death resulting from exposure to a toxic substance. See 42 U.S.C. § 7385s(1) and (2). FAB concludes that the employee is a covered DOE contractor employee with a covered illness who contracted that illness through exposure to toxic substances at a DOE facility pursuant to 42 U.S.C. § 7385s-4(c), and awards medical benefits for sensorineural hearing loss pursuant to § 7385s-8, retroactive to November 9, 2006.

It is the decision of FAB that the employee’s claim under Part E of EEOICPA is accepted for medical benefits for the covered illness of sensorineural hearing loss.

Denver, CO

Paula Breitling

Hearing Representative

Final Adjudication Branch