Docket Number: 14718-2003

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your claims 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 stated below, your claims for survivor benefits are accepted.

 

No decision has yet been made on your claims for benefits under Subpart E of the Act. The adjudication of your Subpart E claims are deferred until issuance of the Interim Final Regulations. Once a decision has been made on your claims for benefits under Subpart E, you will receive a separate decision notice.

 

STATEMENT OF THE CASE

 

On November 13, 2001, [Spouse] and [Claimant 1] each filed a Form EE-2 as the surviving spouse and surviving child of the [Employee] for benefits under Part B of the EEOICPA for COPD. It was subsequently claimed that the employee developed chronic beryllium disease due as a result of his employment exposure at the Los Alamos National Laboratory.

 

In support of the claim, the employee’s death certificate was submitted, which establishes the date of death as December 28, 1990 and [Spouse] as his surviving spouse and a birth certificate for [Claimant 1], which establishes her as a surviving child. The employee’s medical records were also submitted, which included several chest radiograph reports, clinical medical notes demonstrating a history of a chronic respiratory disorder and an arterial blood gas report.

 

However, [Spouse] died prior to the completion of processing of the claim. [Claimant 1] provided the district office with information regarding two other surviving children of the employee.

 

On November 5, 2002 and November 12, 2002, respectively, [Claimant 2] and [Claimant 3] each filed a Form EE-2, seeking compensation under the Act as surviving children of the [Employee]. You claimed that the employee developed chronic beryllium disease from COPD as a result of his employment exposure at the Los Alamos National Laboratory. You also submitted your birth certificates to establish that you are surviving children of the employee.

 

The Department of Energy and the Oak Ridge Institute for Science and Education (ORISE) was unable to verify the employee’s employment history. However, based upon employment evidence submitted, the Denver district office determined that the employee was employed by E.F. Olds Plumbing & Heating Company, a subcontractor for the War Department Corps of Engineers, Manhattan District. Under the EEOICPA, the Manhattan Engineering district is considered a predecessor agency of the Department of Energy. The district office obtained the employee’s social security earnings record, which indicated he was employed by M.M. Sundt Corporation in 1942 and E.F. Olds Plumbing & Heating Company from 1944-1945. They also confirmed that M.M. Sundt Corporation was a subcontractor at Los Alamos National Laboratory and therefore determined that the employee did work at Los Alamos National Laboratory in 1942.

 

To establish a diagnosis of chronic beryllium disease prior to 1993, the record must establish an occupational or environmental history or epidemiologic evidence of beryllium in conjunction with medical evidence that contains at least three out of the five following test results:

 

· Characteristic chest radiograph or computed tomography denoting abnormalities

· A restrictive or obstructive lung physiology test or diffusion lung capacity defect

· Lung pathology consistent with chronic beryllium disease

· Clinical course consistent with chronic beryllium disease

· Immunological tests showing beryllium sensitivity (skin patch or beryllium test)

 

The Denver district office issued a recommended decision on September 22, 2003 to deny the three surviving children claims because the medical evidence failed to support at least three out of five criteria required to establish a diagnosis of chronic beryllium disease prior to 1993. They concluded that you had established the required clinical course consistent with chronic beryllium disease and chest radiograph denoting abnormalities consistent with CDB. The Final Adjudication Branch received a letter of objection from two of the claimants, requesting hearing. On November 12, 2003, the Final Adjudication Branch issued a remand order, for consideration of the arterial blood gas report as medical evidence to establish a diagnosis of CBD.

 

The district office referred the case to the District Medical Consultant, who opined on January 9, 2004 that the arterial blood gas report alone was not sufficient to determine a clinical course consistent with CDB prior to 1993. The district medical consultant also stated that the chest x-ray reports may be supportive of CBD but the findings are nonspecific. Based upon the consultative report, the district office issued a second recommended decision to deny the claims on January 12, 2004.

 

You each submitted a letter of objection to the second recommended decision and requested hearing. The hearing was held by the Final Adjudication Branch on March 24, 2004. During the hearing, you submitted additional medical evidence from Louis M. Benevento, M.D., who stated by affidavit that he treated the employee for many years for advance COPD and emphysema, which was confirmed by pulmonary function testing. The Final Adjudication Branch remanded the case to the district office for additional development of new medical evidence.

 

The district office contacted Dr. Benevento by letter on October 20, 2004 and November 29, 2004 to request the pulmonary function reports he mentioned in his affidavit, but the doctor did not respond. The district office determined that the affidavit by Dr. Benevento was sufficient to establish a third requirement required to establish CBD prior to 1993, a restrictive or obstructive lung physiology test or diffusion lung capacity defect. On January 4, 2005, the Denver district office issued a recommended decision concluding that the employee was a beryllium employee, as that term is defined in 42 U.S.C. § 7384l(7), that he contracted chronic beryllium disease as a result of employment exposure. As the eligible survivors, you are each entitled to compensation in the amount of $50,000 pursuant to 42 U.S.C. § 7384s(a).

 

On the dates listed below, the Final Adjudication Branch received written notification that the claimants waive any and all objections to the recommended decision:

 

[Claimant 1] January 20, 2005

[Claimant 2] January 20, 2005

[Claimant 3] January 20, 2005

 

After a thorough review of the case file forwarded by the Denver district office, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. On November 13, 2001, [Spouse] and [Claimant 1] each filed a claim as the surviving spouse and surviving child, respectively, of the employee who had COPD and CBD as a result of his employment at Los Alamos National Laboratory.

 

2. The surviving spouse of the employee passed away on May 28, 2002, before her claim completed processing.

 

3. On November 5, 2002 and November 12, 2002, respectively, [Claimant 2] and [Claimant 3] each filed a Form EE-2, seeking compensation under the Act as surviving children of the employee.

 

4. You have established that you are the three surviving children of the employee.

 

5. You were issued recommended decisions to deny your claim on September 22, 2003 and January 12, 2004, which you subsequently filed objections and requested hearing.

 

6. The Final Adjudication Branch issued remand orders on November 12, 2003 and September 30, 2004.

 

7. You have established that the employee worked at Los Alamos National Laboratory in 1942.

 

8. The potential for beryllium exposure existed at Los Alamos National Laboratory due to historical beryllium use, residual contamination and decontamination activities.

 

9. The employee’s medical evidence was sufficient to establish that he suffered from a respiratory disorder consistent with chronic beryllium disease prior to 1993. The employee medical records included chest radiograph reports with abnormalities consistent with chronic beryllium disease, medical reports demonstrating a clinical course consistent with CDB and a restrictive or obstructive lung physiology test consistent with CDB.

 

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

 

CONCLUSIONS OF LAW

 

1. The employee was a covered beryllium employee pursuant to 42 U.S.C. § 7384l(7).

 

2. Prior to his death, the employee contracted chronic beryllium disease in accordance with the criteria set forth in 42 U.S.C. §7384l(13)(B) under Part B of the EEOICPA.

 

3. You have established that you are the three eligible survivors of the employee pursuant to the criteria of 42 U.S.C. §7384s(3) under Part B of the EEOICPA.

 

4. You are entitled to compensation in the amount of $150,000 which is to be divided among the eligible survivors pursuant to 42 U.S.C. § 7384s(a). Therefore, you are each entitled to compensation in the amount of $50,000.

 

The undersigned has thoroughly reviewed the case record and the recommended decision issued by the district office on May 13, 2004 and finds that the employee was a covered beryllium employee, as that term is defined in 42 U.S.C. § 7384l(7), that he was diagnosed with chronic beryllium disease, a specified disease under 42 U.S.C. § 7384l(8), and that the diagnosis was pursuant to 42 U.S.C. § 7384l(13). It is the decision of the Final Adjudication Branch that the three survivor claims under Part B of the Act are accepted.

 

Denver, CO

 

 

Joyce L. Terry

District Manager