Docket Number: 12177-2002

 

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 (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch approves your claim for chronic beryllium disease.

 

STATEMENT OF THE CASE

 

On April 1, 2004, you submitted a Form EE-1 (Claim for Employee Benefits under the EEOICPA), to the Portsmouth Resource Center, based on chronic beryllium disease (CBD). You had previously submitted a claim for beryllium sensitivity on October 16, 2001. A previous recommended decision granting medical monitoring for beryllium sensitivity effective October 16, 2001, was issued by the Cleveland district office on April 24, 2002, and a prior final decision affirming this recommended decision was issued by FAB on June 11, 2002.

 

You also had previously submitted a Form EE-3 (Employment History) that indicated that you worked at the Rocky Flats Plant in Golden, Colorado from 1990 to 1992 and the Feed Materials Production Center (FMPC) in Fernald, Ohio from 1992 to the present. Both of these facilities are designated by the Department of Energy (DOE) as Department of Energy facilities from 1951 to present and both throughout the course of their operations had the potential for beryllium exposure at the site, due to beryllium use, residual contamination and decontamination activities. See The DOE, Office of Worker Advocacy Facility List.

 

On November 13, 2001, DOE verified your employment at the FMPC from June 1, 1992 to present. The DOE had no records to confirm that you were employed directly by the Rocky Flats Plant.

 

You submitted medical records, including a lymphocyte transformation test dated August 25, 1995 that showed an abnormal response to beryllium sulfate. A medical report from Lee S. Newman, M.D., F.C.C.P., at National Jewish Medical Center and Research Center, dated February 24, 2004, described a pulmonary function test which demonstrated a progressive gas exchange abnormality which had worsened since 2002 and a CT scan of the thorax that indicated parenchymal findings consistent with chronic beryllium disease. There is also a medical consultation from Milton D. Rossman, M.D., at the University of Pennsylvania Medical Center, dated August 1, 2004, who opined that the findings from the CT scan and the pulmonary function tests performed in February 2004 are both consistent with chronic beryllium disease. Dr. Rossman stated that the specific CT scan findings were that of nodular lesions consistent with granulomas, air trapping and evidence of ground glass abnormalities and that the specific pulmonary function test finding was that of an abnormality of the diffusion capacity.

 

On August 31, 2004, the Cleveland district office issued a recommended decision concluding that you are a covered beryllium employee as that term is defined by 42 USC § 7384l(7), you were exposed to beryllium in the performance of duty, pursuant to 42 U.S.C. § 7384n, and are shown to have a covered beryllium illness shown in 42 USC § 7384l(8)(B), as you have chronic beryllium disease per the evidentiary criteria shown in 42 U.S.C. § 7384l(13). The district office further concluded that as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s(a)(1). The district office also concluded that pursuant to 42 U.S.C. § 7384s(b), you are also entitled to medical benefits for chronic beryllium disease, effective June 11, 2002, as those benefits are described in 42 U.S.C. § 7384t.

 

On September 8, 2004, the 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 for chronic beryllium disease on April 1, 2004.

 

2. You were employed at the Feed Materials Production Center in Fernald, Ohio, a Department of Energy facility, from June 1, 1992 to at least November 13, 2001.

 

3. You are a covered beryllium employee who worked at Feed Materials Production Center in Fernald, Ohio, during a period when beryllium dust particles or vapor may have been present.

 

4. On February 24, 2004, you were diagnosed with chronic beryllium disease. The August 25, 1995, results of the beryllium lymphocyte proliferation test in addition to the February 2004 CT scan showing changes consistent with CBD and the February 2004 pulmonary function testing showing pulmonary deficits consistent with CBD, indicate that you have chronic beryllium disease meeting the statutory criteria for a diagnosis on or after January 1, 1993.

5. The effective date of medical benefits for the CBD is October 16, 2001, the same date as the effective date of medical benefits for the beryllium sensitivity.

 

CONCLUSIONS OF LAW

 

In order to be afforded coverage as a “covered beryllium employee,” you must show that you were exposed to beryllium while in the performance of duty while employed at a DOE, or under certain circumstances, while present at a DOE facility or a facility owned and operated by a beryllium vendor, during a period when beryllium dust, particles, or vapor may have been present at such a facility. See 42 U.S.C. §§ 7384l(7); 7384n(a). Based on your covered employment at the FMPC during a period when beryllium dust, particles or vapor may have been present, you were exposed to beryllium in the performance of duty.

 

In addition, there must be medical documentation of the condition in order to be eligible for benefits based on chronic beryllium disease. The requirements for diagnoses on or after January 1, 1993 are: the employee must have beryllium sensitivity [based on a positive lymphocyte proliferation test], together with lung pathology consistent with chronic beryllium disease, including—a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; a computerized axial tomography scan (CT) showing changes consistent with chronic beryllium disease; or pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease. See 42 U.S.C. § 7384l(13)(A).

 

The record contains the results of your BeLPT test showing an abnormal response to beryllium sulfate, and the findings from the CT scan and pulmonary function test which are consistent with a diagnosis of CBD. See 42 U.S.C. § 7384l(13)(A).

 

You are a “covered beryllium employee” as defined in § 7384l(7) of the Act, who was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA. See 42 U.S.C. §§ 7384l(7); 7384n(a). Further, the medical evidence shows the presence of CBD, as provided for in § 7384l(13)(A) of the Act. See 42 U.S.C. § 7384l(13)(A).

 

For the foregoing reasons, the undersigned hereby approves your claim for CBD. You are entitled to compensation in the amount of $150,000, pursuant to § 7384s(a) of the EEOICPA. See 42 U.S.C. § 7384s(a).

 

The Final Adjudication Branch notes that the district office in their recommended decision concluded that you were entitled to medical benefits for CBD from June 11, 2002, the date of the Final Decision which affirmed your entitlement to medical monitoring for beryllium sensitivity. The Final Adjudication Branch finds that you are entitled to medical benefits for CBD from October 16, 2001, which is the same medical status effective date for the beryllium sensitivity. Therefore, you are entitled to reimbursement of medical expenses related to your condition of CBD, retroactive to October 16, 2001. See 42 U.S.C. § 7384t; 20 C.F.R. § 30.400(a).

 

 

Cleveland, Ohio

 

 

 

 

________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch