Docket Number: 10076658-2009

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10076658-2009

DECISION DATE: October 29, 2008

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted claim under Part E of 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 skin lesions, skin cancer, an abdominal aortic aneurism, congestive heart failure, chronic obstructive pulmonary disease and interstitial basilar pleural parenchymal disease is accepted for medical benefits. However, the claim for blindness and atherosclerotic peripheral vascular disease under Part E is denied.

 

STATEMENT OF THE CASE

 

On July 15, 2008, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for blindness, emphysema, skin lesions, chronic obstructive pulmonary disease (COPD), congestive heart failure and an abdominal aortic aneurism. On August 21, 2008, [Employee] filed a second Form EE-1 for the additional conditions of interstitial and right basilar pleural parenchymal disease and atherosclerotic peripheral vascular disease. On the claim forms, [Employee] indicated that he had not received any settlement or award from a tort suit or state workers’ compensation claim in connection with the claimed conditions and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

 

On a Form EE-3, [Employee] stated that he was employed as an electrician, video technician and assistant estimator by E.I. Dupont at the Savannah River Site (SRS) for the period of January 1, 1952 to December 30, 1987. The Oak Ridge Institute for Science and Education (ORISE) database was checked and verified his SRS employment from June 18, 1952 to December 31, 1986, and Department of Energy (DOE) records identify [Employee]’s labor categories as instrument mechanic and project assistant.

 

The district office performed a search of the U.S. Department of Labor Site Exposure Matrices (SEM). Source documents used to compile the SEM establish that the labor category of “instrument mechanic” at the SRS could potentially be exposed to the toxic substances arsenic, asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide. The SEM lists skin cancer as a possible specific health effect of exposure to arsenic, and COPD as a possible specific health effect of asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide.

 

The district office sent [Employee]’s medical records to a District Medical Consultant (DMC) for review. In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and seven actinic keratoses. The DMC noted that the final pathology diagnosis of the keratosis of the index finger was consistent with an arsenical keratosis. The DMC therefore concluded that [Employee]’s exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin lesions of keratoses of his hands.

 

The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found in cases of asbestos exposure. The DMC determined that it is at least as likely as not that [Employee]’s exposure to toxic substances while working at the SRS was a significant factor in contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal disease.

 

As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic substances. However, the DMC noted that the medical notes stated that [Employee]’s aneurism was unable to be surgically corrected as a result of other significant medical problems, one of which was his moderately severe COPD. As a result, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were a significant factor in aggravating his aneurism.

 

With respect to pulmonary hypertension, the DMC noted that it can be caused by chronic lung disease and certainly contributes to congestive heart failure (CHF). Therefore, the DMC concluded that it was at least as likely as not that [Employee]’s COPD and emphysema were significant contributing factors in the development of his CHF.

 

The DMC noted, however, that ophthalmic notes diagnosed [Employee] with Fuch’s dystrophy, an inherited genetic eye disorder, as well as relatively common eye conditions, particularly common in people his age. As such, the DMC concluded that it is not at least as likely as not that [Employee]’s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his blindness.

 

And finally, the DMC noted that atherosclerotic peripheral vascular disease is generally not considered to be an occupational illness and that there are no accepted toxic substances that are known to cause, contribute to, or aggravate the condition. Accordingly, the DMC concluded that it was not at least as likely as not that [Employee]’s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his atherosclerotic peripheral vascular disease.

 

On October 16, 2008, the Jacksonville district office issued a recommended decision to accept [Employee]’s claim under Part E of EEOICPA for the conditions of skin lesions, skin cancer, an abdominal aortic aneurism, CHF and interstitial basilar pleural parenchymal disease, and to deny his claim for blindness and atherosclerotic peripheral vascular disease.

 

On October 24, 2008, FAB received written notification that [Employee] waived any and all objections to the recommended decision. FAB has performed a search of the SEM, which confirmed the findings of the district office. After reviewing the evidence in the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. [Employee] was employed at the SRS from June 18, 1952 to December 31, 1986.

 

2. [Employee] was diagnosed with interstitial and right basilar pleural parenchymal disease, atherosclerotic peripheral vascular disease, blindness, emphysema, skin lesions, COPD, CHF and an abdominal aortic aneurism following exposure to toxic substances during covered employment at a DOE facility.

 

3. The medical evidence establishes 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 [Employee]’s COPD, emphysema, interstitial basilar pleural parenchymal disease, skin cancer, and skin lesions.

 

4. [Employee]’s COPD and emphysema were significant factors in aggravating his aneurism and contributing to his CHF.

 

5. There is no link between [Employee]’s blindness or atherosclerotic peripheral vascular disease and exposure to toxic substances at the SRS.

 

Based on the above-noted findings of fact, FAB hereby 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) (2009).

 

Under Part E of EEOICPA, a “covered illness” is an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2). As found above, the medical evidence establishes 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 [Employee]’s skin cancers, skin lesions, CHF, abdominal aortic aneurism, interstitial basilar pleural parenchymal disease and COPD. That same 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 [Employee]’s blindness or atherosclerotic peripheral vascular disease.

 

Since the evidence does not establish that [Employee] has contracted blindness or atherosclerotic peripheral vascular disease through exposure to a toxic substance at a DOE facility, they cannot be considered covered illnesses under Part E. I hereby deny payment of medical benefits under Part E for the claimed blindness and atherosclerotic peripheral vascular disease. However, [Employee] is entitled to medical benefits for skin lesions, skin cancer, an abdominal aortic aneurism, CHR, COPD and interstitial basilar pleural parenchymal disease, effective July 15, 2008, under Part E of EEOICPA. See 42 U.S.C. § 7385s-8.

 

 

 

 

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch