Docket Number: 10061144-2007

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:	10061144-2007
DECISION DATE:	April 30, 2008

 

NOTICE OF FINAL DECISION

This is the final decision of the Final Adjudication Branch (FAB) on 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 the employee’s skin cancer under Part E of EEOICPA is denied.

STATEMENT OF THE CASE

On February 17, 2005, [Employee], hereinafter referred to as “the employee,” filed a Form EE-1 claiming for benefits for chronic obstructive pulmonary disease (COPD) and chronic beryllium disease (CBD), as well as a request for a review by a Physicians Panel for asbestosis, heart disease, COPD and CBD. On the Form EE-3, the employee alleged that he was employed as a driver in construction, an operator C & B, and a gulper at the Savannah River Site (SRS) for the period February 1, 1952 to January 31, 1957. He alleged that he worked in Building 221-F, the B-line, and the “sample aisle.” The district office used the Oak Ridge Institute for Science and Education (ORISE) database to confirm that the employee worked at the SRS from March 26, 1952 to May 17, 1957. However, no job titles were listed by ORISE.

On June 5, 2006, the employee filed a new Form EE-1 in which he claimed for skin cancer. A pathology report in the record establishes that the employee was diagnosed with squamous cell carcinoma (SCC) of the left helical rim on May 12, 2006.

On July 5, 2006, FAB issued a final decision accepting the employee’s claim for asbestosis and COPD as “covered” illnesses under Part E of EEOICPA and denying his claim for CBD and asbestosis under Part B. That final decision also denied the employee’s claim for CBD and asbestosis under Part E. As part of that decision, FAB remanded the employee’s claim to the Jacksonville district office for consideration of the newly submitted Form EE-1 claiming for skin cancer.

On January 5, 2007, [Claimant] filed a Form EE-2 in which she claimed for survivor benefits based on the skin cancer, COPD, asbestosis and pulmonary hypertension of her late spouse, the employee. In support of her claim, [Claimant] submitted her marriage certificate showing that she married the employee on July 9, 1955, and the employee’s death certificate showing that she was the employee’s spouse when he died on December 31, 2006 from cardio-respiratory arrest that was due to or as a consequence of refractory hypertension with shock.

In a February 13, 2007 report, a District Medical Consultant (DMC) reviewed the evidence in the record and concluded that the medical evidence was insufficient to establish that the employee’s claimed condition of skin cancer was at least as likely as not due to exposure to a toxic substance at a Department of Energy (DOE) facility and that such exposure was a significant factor in aggravating, contributing to, or causing the claimed condition of skin cancer.

On March 1, 2007, the Jacksonville district office sent [Claimant] a letter advising her of the deficiencies of her Part E claim for the employee’s skin cancer. In that letter, the district office advised [Claimant] that it was unable to establish exposure to a specific toxic substance and/or that the toxic substance(s) caused, contributed to, or aggravated the employee’s skin cancer. The district office explained the needed information and requested that she submit factual evidence of the types of toxic substances to which the employee was exposed and medical evidence from a physician that linked the employee’s exposures to the claimed condition and allowed time for her response. No response or additional information was received.

On June 20, 2007, FAB issued a final decision accepting [Claimant]’s claim for the employee’s death due to pulmonary hypertension under Part E of EEOICPA since it was 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 pulmonary hypertension, and that exposure to such toxic substances was related to employment at the DOE facility and was a significant factor that caused or contributed to the death of the employee. That decision also remanded her claim for the employee’s skin cancer under Part B for a new dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

The U.S. Department of Labor maintains a database called the Site Exposure Matrices (SEM). The district office performed a search of the SEM and found that there was insufficient evidence to establish a causal relationship between exposure to a toxic substance while employed at the SRS and the claimed condition of skin cancer.

On December 20, 2007, FAB issued another final decision denying [Claimant]’s claim under Part B of EEOICPA since it was not at least as likely as not that the employee’s skin cancer was related to radiation doses incurred while working at a Department of Energy facility, based on the new dose reconstruction by NIOSH.

On February 14, 2008, the district office sent [Claimant] a second development letter regarding her claim for the employee’s death due to skin cancer under Part E that advised her that there was no evidence to support a relationship between the employee’s exposure to toxic substances and his skin cancer. In that letter, the district office explained the needed information, requested additional medical evidence (including the types of toxic substances to which the employee may have been exposured or any information from a physician that linked the employee’s toxic exposure to the claimed condition) and allowed time for [Claimant] to respond. No response or additional information was received.

On February 19, 2008, the district office issued a recommended decision to deny the claim for survivor benefits based on the employee’s death due to skin cancer under Part E of EEOICPA. The recommended decision informed [Claimant] that she had sixty days to file any objections, and she did not file any objections to the recommended decision within that period.

Following the issuance of the recommended decision, FAB performed another search of the SEM, which revealed that carbon has the potential to cause skin cancer and that the labor category of “operator” at the SRS could potentially be exposed to that toxic substance. The search also showed that arsenic benzo(a)pyrene and mineral oil, which can also cause skin cancer, were present in Building 221-F.

Thereafter, FAB referred the case file to a DMC for review of the new information and an opinion. The DMC reviewed the evidence in the record and concluded in an April 24, 2008 report that the available information was insufficient to establish that workplace toxic exposures at a DOE facility were a significant factor that caused, contributed to, or aggravated the claimed condition of skin cancer, even on an “at least as likely as not” basis. He further concluded that the medical evidence did not show that the employee’s skin cancer played any role in his death.[1]

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. The employee filed a claim for benefits under EEOICPA for skin cancer.

2. The employee was diagnosed with skin cancer.

3. The employee was a DOE contractor employee at the SRS from March 26, 1952 to May 17, 1957.

4. The employee died on December 31, 2006 from cardio-respiratory arrest due to or as a consequence of refractory hypertension with shock.

5. [Claimant] filed a claim for survivor benefits under EEOICPA based on the employee’s death due to skin cancer.

6. [Claimant] was the employee’s spouse at the time of his death and for at least one year prior to his death.

7. The medical evidence is insufficient to establish a causal link between the employee’s skin cancer and exposure to a toxic substance.

Based on the above-noted findings of fact, FAB also hereby makes the following:

CONCLUSIONS OF LAW

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired. 20 C.F.R. § 30.310(a) (2008). 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 or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).

[Claimant] meets the definition of a survivor under Part E that appears at 42 U.S.C. § 7385s-3(d)(1). However, a survivor is only entitled to compensation under Part E if the employee would have been entitled to compensation under Part E for a covered illness and if 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 illness and death of the employee. 42 U.S.C. § 7385s-4(c)(1).

The evidence does not 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 skin cancer. Therefore, I conclude that [Claimant] is not entitled to benefits for the employee’s death due to skin cancer under Part E because there is insufficient evidence to prove that the employee’s skin cancer was related to toxic exposure at a DOE facility.

Jacksonville, FL

Jeana LaRock

Hearing Representative

Final Adjudication Branch