Docket Number: 12659-2004

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 12659-2004

DECISION DATE: November 6, 2003

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning the claim of [Claimant] for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons discussed below, compensation based on lung cancer is granted.

STATEMENT OF THE CASE

On October 2, 2003, the Cleveland district office issued a recommended decision finding that [Employee]’s lung cancer was at least as likely as not related to his employment at a Department of Energy (DOE) facility, within the meaning of 42 U.S.C. § 7384n; that the employee is a “covered employee with cancer”, as that term is defined in 42 U.S.C. § 7384l(9)(B); and concluding that the claimant, as the survivor of the employee, is entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s.

The evidence shows that the employee worked in decontamination/housekeeping maintenance at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978. Additional evidence shows that he was on active military service from September 4, 1952, to August 20, 1954. In order to be eligible for benefits based on the employee’s cancer, the evidence must establish that the cancer was at least as likely as not related to his employment at a DOE facility.

To determine the probability of whether the employee sustained lung cancer in the performance of duty, the district office referred the claimant’s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115 of the Department of Labor’s implementing regulations. NIOSH performed the dose reconstruction by calculating the annual radiation dosage during recorded radiation intake periods. Because the potential intake on December 27, 1960, occurred near the end of that year, all dose for that intake was assigned to 1961. On August 18, 2003, the claimant signed Form OCAS-1, indicating that she had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information she had provided to NIOSH.

Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was an 83.73% probability that the employee’s lung cancer was caused by radiation exposure at Monsanto Chemical Company (Mound Plant).

In making this determination, the district office used the parameter for smoking history of “10-19 cigarettes per day”. This parameter was used because the smoking history questionnaire that the claimant submitted was marked in the blocks corresponding to “Current Cigarette Smoker” and “10-19 cigarettes per day.” A consultation report from Miami Valley Hospital, dated June 24, 1978, notes that the employee provided a history that he is a “heavy smoker - 2 ppd x 30 years.”

Based on that report, the Final Adjudication Branch independently analyzed the information in the NIOSH report, and re-determined the probability of causation using a smoking history parameter of “>40 cig/day (currently)”. That history was considered to be the most reliable estimate of the employee’s smoking history. The re-analysis resulted in an 82.44% probability that the employee’s lung cancer was sustained in the performance of duty.

On October 8, 2003, the Final Adjudication Branch received written notification that the claimant waives any and all objections to the recommended decision.

FINDINGS OF FACT

1. The claimant filed an application for benefits on October 15, 2001, under the EEOICPA based on the employee’s lung cancer.
2. The employee worked at Monsanto Chemical Company (Mound Plant) for the period of November 21, 1951, to October 2, 1978. Monsanto Chemical Company (Mound Plant) is identified as a DOE facility from 1947 to the present.
3. The employee was diagnosed with lung cancer in June 1978.
4. NIOSH reported annual dose estimates for lung cancer during recorded radiation intake periods. A summary and explanation of information and methods applied to produce these dose estimates, including the claimant’s involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”
5. Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer. The district office determined that lung cancer was estimated to have a greater than 50% probability that it is related to employment at the covered facility.
6. The claimant is the surviving spouse of the employee and was married to him for at least one year immediately before his death.

CONCLUSIONS OF LAW

I have reviewed the facts and the recommended decision issued by the district office, and find that the employee’s lung cancer was at least as likely as not sustained in the performance of duty at a DOE facility as specified by 42 U.S.C. § 7384n. The employee is a “covered employee with cancer”, as that term is defined by 42 U.S.C. § 7384l(9)(B). The claimant is the surviving spouse of the employee as defined by 42 U.S.C. § 7384s(e)(1). I find that the recommended decision is in accordance with the facts and the law in this case, and that the claimant is entitled to $150,000 based on the employee’s lung cancer, as provided by 42 U.S.C. § 7384s.

Cleveland, OH

Daria Rusyn

Final Adjudication

Branch Manager