Docket Number: 10522-2004

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for compensation under the Act.

 

STATEMENT OF THE CASE

 

On September 24, 2001, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on skin cancer. A representative of the Department of Energy (DOE) verified that you engaged in covered employment at the Hanford site for General Electric from December 5, 1955 to November 8, 1957 and for J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987. The Hanford site is recognized as a covered DOE facility from 1942 to the present. See Department of Energy Worker Advocacy Facility List.

 

You provided a medical record summary from David L. Adams, M.D., of Tri-City Derm Management, Inc., that indicates you had surgical excisions diagnosed as basal cell carcinoma on the following twelve dates: December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face).

 

You submitted four operative reports related to your cancers as follows: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4^th layer shows cancer still present.”). Also, you submitted five pathology reports related to your cancer as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin). Further, you submitted a pathology report dated January 5, 1996 that diagnosed seborrheic keratosis, a non-covered condition. You also submitted chart notes dated February 28, 1996 that indicate “a large recurrent basal cell carcinoma on the right preauricular lateral cheek area,” and “Right lateral cheek, preauricular skin.” Consequently, the medical evidence includes a medical record summary, operative reports and pathology reports showing your diagnoses of skin cancer.

 

To determine the probability of whether you sustained these cancers in the performance of duty, the Seattle district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA regulations. See 20 C.F.R. § 30.115. The district office received the final NIOSH Report of Dose Reconstruction on October 22, 2003. See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82, § 82.26 (NIOSH report of dose reconstruction results). In its report, NIOSH indicated, in its “Dose Reconstruction Overview,” that it performed radiation dose reconstructions on only four of your basal cell carcinomas that were diagnosed as follows: February 28, 1996 (left cheek); March 9, 1995 (auricular skin); March 9, 1995 (right side of the face); and March 17, 1982 (right sideburn area of the face).

 

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 your cancer and reported in its Recommended Decision that there was a 52.35% probability that your basal cell carcinoma of the skin was caused by radiation exposure at the INEEL site. The district office continued, in its recommended decision, that “Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at a DOE covered facility) was calculated for the four primary cancers.”

 

On November 3, 2003, the Seattle district office recommended acceptance of your claim for compensation, and on November 7, 2003, the Seattle Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

 

FINDINGS OF FACT

 

1. You filed a claim for employee benefits on September 24, 2001.

 

2. You were employed at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

 

3. You are a covered employee as defined by § 7384l(9)(B) of the EEOICPA. See 42 U.S.C. § 7384l(9)(B).

 

4. You were diagnosed with multiple skin cancers.

 

5. Your cancer diagnoses were made after you began employment with the Department of Energy.

 

6. The NIOSH Interactive RadioEpidemiological Program indicated a 52.35% probability that your basal cell carcinoma was caused by radiation exposure at the Hanford site.

 

7. The dose reconstruction estimate was performed in accordance with § 7384n(d) of the EEOICPA and 42 C.F.R. Part 82. See 42 U.S.C. § 7384n(d); 42 C.F.R. Part 82 § 82.26.

 

8. The Probability of Causation was completed in accordance with § 7384n(c)(3) of the EEOICPA and 42 C.F.R. Part 81. The calculation of the probability of causation was based on four basal cell carcinoma primary cancer sites and was completed in accordance with 42 C.F.R. Part 81. See 42 U.S.C. § 7384n(c)(3); 42 C.F.R. Part 81, Subpart E.

 

9. After determining that the probability of causation for your basal cell carcinoma was 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction as it was evident the estimated cumulative dose is sufficient to qualify you for compensation. Additional calculations of probability of causation were not required to be determined. See 42 C.F.R. § 82.10(k).

 

CONCLUSIONS OF LAW

 

The DOE verified your employment at the Hanford site by General Electric from December 5, 1955 to November 8, 1957; and by J.A. Jones/Kaiser Engineers Hanford from September 13, 1960 to February 4, 1975, February 6, 1975 to October 11, 1976, and November 30, 1976 to September 30, 1987.

 

The medical documentation submitted in support of your claim shows that you were diagnosed with skin cancer on December 14, 1977 (right sideburn area); March 17, 1982 (right anterior sideburn area); March 18, 1982 (right anterior sideburn area); March 23, 1982 (right anterior sideburn area); March 25, 1982 (right anterior sideburn area); March 29, 1982 (right anterior sideburn area); March 25, 1986 (right lateral face); September 16, 1986 (mid posterior chest); December 23, 1986 (right sideburn area); June 7, 1989 (right cheek of face); February 22, 1995 (right face) and March 8, 1995 (right side of face). Operative reports you submitted indicated cancer-related excisions on the following dates: March 17, 1982 (basal cell carcinoma); March 18, 1982 (Mohs microscopic controlled surgery – subsequent treatment. “The second layer shows cancer still present.”); March 23, 1982 (“The third layer shows cancer still present.”); and March 25, 1982 (“The 4^th layer shows cancer still present.”). You submitted pathology reports providing cancer diagnoses as follows: December 14, 1977 (basal cell epithelioma); February 22, 1995 (“Basosquamous carcinoma”); March 8, 1995 (ulcerated multifocal superficial basal cell carcimoma); December 21, 1995 (right pre-auricular basal cell carcinoma); and February 28, 1996 (basal cell carcinoma right lateral cheek skin).

 

Based on your covered employment at the Hanford site and the medical documentation showing diagnoses of multiple skin cancers, you are a “covered employee with cancer” under the EEOICPA. See 42 U.S.C. § 7384l(9)(B)(i).

 

The undersigned notes that there is no indication in the case file of diagnosis of an auricular skin cancer, on March 9, 1995, as indicated in the NIOSH Report of Dose Reconstruction. But, there is a diagnosis of a right pre-auricular basal cell carcinoma on December 21, 1995 as well as a reference to a basal cell carcinoma on the “right preauricular lateral cheek area” in the chart notes dated February 28, 1996. It is also noted that the IREP probability of causation results show that the auricular primary cancer was diagnosed in 1995, and that no month or day was used in the computer calculation of the results. Consequently, any discrepancy in the date of diagnosis of pre-auricular basal cell carcinoma in 1995 would not affect the outcome of this case.

 

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction on January 10, 2002, in accordance with § 30.115 of the EEOICPA regulations. See 20 C.F.R. § 30.115. On October 22, 2003, the Seattle district office received the final NIOSH Report of Dose Reconstruction.

 

Using the information provided in the Report of Dose Reconstruction for basal cell carcinoma, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the implementing NIOSH regulations, to determine a 52.35% probability that your cancer was caused by radiation exposure while employed at the Hanford site. See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), 81.22 (General guidelines for use of NIOSH-IREP), 81.25 (Guidelines for claims involving two or more primary cancers). The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 52.35% probability. Thus, the evidence shows that your cancer was at least as likely as not related to your employment at the Hanford site and no further determinations of probability of causation were required.

 

You are a “covered employee with cancer,” which is defined in § 7384l(9)(B)(i) and (ii) of the EEOICPA. See 42 U.S.C. § 7384l(9)(B)(i) and (ii). Pursuant to §§ 81.20, 81.21, 81.22, and 81.25 of the NIOSH implementing regulations, your cancer was at least as likely as not related to your employment at the Hanford site. See 42 C.F.R. §§ 81.20, 81.21, 81.22, and 81.25.

 

The record indicates that you filed Form EE-1, Claim for Employee Benefits under the EEOICPA, on September 24, 2001. The date you filed your claim is the date you became eligible for medical benefits for cancer. See 42 U.S.C. § 7384t(d).

 

Pursuant to Bulletin 03-24, if all primary cancers claimed have not gone through dose reconstruction when the 50% threshold has been reached, NIOSH will not complete dose reconstruction for the rest of the cancers. The calculation of additional POCs for the remaining primary cancers, which were not calculated, would only make the final numerical value of the POC larger, and all of the cancers, including those for which NIOSH did not perform a dose calculation, are covered for medical benefits. Consequently, you are entitled to compensation and medical benefits for skin cancer retroactive to September 24, 2001. See EEOICPA Bulletin No. 03-24 (issued May 2, 2003).

 

For the foregoing reasons, the undersigned hereby accepts your claim for skin cancer. You are entitled to compensation in the amount of $150,000 pursuant to § 7384s(a) of the Act. You are also entitled to medical benefits related to skin cancer, since September 24, 2001. See 42 U.S.C. § § 7384s, 7384t.

 

Seattle, WA

 

 

 

_______________________________________

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle